Law is dynamic and so are its facets. Even in the time of a pandemic, where physical appearances for lawyers have stopped, the law is still evolving. Adaptability to the virtual world is the need of the hour. Servicing upon the parties has been made easy over the period of time, so that effective, speedy and timely justice can be delivered. The e-modes of service are not only recognised by the courts but have also played a prominent role in rescuing the civil procedure time-totime.
The service of summons is of primary importance as it is a fundamental rule of law of procedure that a party must have a reasonable notice of the legal proceedings against him, in order to defend himself. The issue of service of summons is one of the major causes of delay in justice system.
BRIEF OVERVIEW OF FIVE MODES OF SERVING SUMMONS (ORDER 5, RULES 9-30, CIVIL PROCEDURE CODE):
1) Personal or Direct service: Rules 10-16, 18 of the Civil Procedure Code (CPC), deal with personal or direct service of summons upon the defendant. This is an ordinary mode of service of summons. The service of summons should be made by delivering or tendering a copy. Where the serving officer delivers or tenders a copy of summons to the defendant personally or to his agent or other person on his behalf, the person to whom the copy is delivered or tendered must make an acknowledgement of service of summons. The serving officer thereafter, must make an endorsement on the original summons stating the time and manner of service thereof and the name, address of the person, if any, identifying the person served and witnessing the delivery or tender of summons.
2) Service by Court: Rule 9 governs service done by court. Summons to defendant residing within the jurisdiction of the court shall be served through court officer or approved courier service. Summons can also be served by registered post, speed post, acknowledgment due (RPAD), courier service, fax, email, message or any other permissible means of transmission. Where the defendant residing outside the jurisdiction of the court, the summons shall be served through an officer of the court within whose jurisdiction the defendant resides. The court shall treat refusal of acceptance as a valid service. Where the summons is properly addressed, prepaid and duly sent by registered post acknowledgement due (RPAD) there will be presumption of valid service of summons even in the absence of an acknowledgement slip.
3) Service by plaintiff: Rule 9A provides that the court may permit service of summons by the plaintiff in addition to service of summons by the court.
SUBSTITUTED SERVICE: RULES 17, 19-20 PROVIDE FOR THE SUBSTITUTED SERVICE OF SUMMONS
i) where the defendant or his agent refuses to sign the acknowledgement or
ii) where the serving officer, after due and reasonable diligence, cannot find the defendant who is absent from his residence at the time of service of summons and there is no likelihood of him being found at his residence within a reasonable time and there is no authorised agent nor any other person on whom service can be made, the service of summons can be made by affixing a copy on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. The serving officer shall then return the original to the court from which it was issued with a report endorsed thereon stating the fact about affixing the copy, the circumstances under which he did so and the name, address of the person, if any, by whom the house was identified and in whose presence the copy was affixed.
If the court is satisfied, either on the affidavit of the serving officer or on his examination on oath, that the summons has been duly served, it may either declare that the summons has been duly served, or may make further enquiry in the matter as it thinks fit.
- Where the court is satisfied that
there is reason to believe that the defendant avoids service or for
any other reason the summons cannot be served in the ordinary way,
the service may be effected in the following manner:
- By affixing a copy of the summons in
some conspicuous place in the courthouse, and also upon some
conspicuous part of the house in which the defendant is known to
have last resided, carried on business or personally worked for
- In such manner as the court thinks
- Service by post:
When an acknowledgement purporting to be signed by the defendant or
his agent is received by the court, or the defendant or his agent
refused to take delivery of summons when tendered to him, the court
issuing the summons shall declare that the summons had been duly
served on the defendant. The same principle applies in a case where
the summons was properly addressed, prepaid and duly sent by
registered post, acknowledgment due and the acknowledgement is lost
or not received by the court within thirty days from the date of
issue of the summons. Where the summons sent by registered post is
returned with an endorsement "refused", the burden is on
the defendant to prove that the endorsement is false.
- Where the court is satisfied that there is reason to believe that the defendant avoids service or for any other reason the summons cannot be served in the ordinary way, the service may be effected in the following manner:
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Originally published by INDIAN LEGAL IMPETUS® on JULY 2020. Vol. XIII, Issue VII
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.