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The Different Modes of Effecting Service of Summons on a Defendant (C.P.C 1908, India)

January 18, 2019 0 Comment

Wherever it is practicable, service should be made on the defendant in person, unless he has an agent empowered to accept service in which case service on such agent shall be sufficient. Where there are two or more defendants, service should be made on each defendant. (O. 5, rr. 10, 11).

Where the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member or his family, whether male or female, but not a servant. [O. 5, R. 15].

In a suit for immovable property service may be made on any agent in charge of the property if the service cannot be made on the defendant personally and the defendant has no agent empowered to accept the service.

Such personal service is also called direct service because service is made by delivering a copy thereof to the defendant personally, or to an agent or other person on his behalf, and the signature of the person to whom the copy is so delivered is obtained to an acknowledgment of service endorsed on the original summons.

2. Service by affixing a copy of summons on defendant’s house without an order of the court:

(a) Where the defendant or his agent or in their absence an adult member of the family refuses to sign the acknowledgment, or

(b) where the serving officer, after using due diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and within a reasonable time and there is no such other person on whom service can be effected, the serving officer shall affix a copy of the summons 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, and then shall return the original to the court from which it was issued, with a report endorsed thereon stating that he has so affixed the copy, the circumstances under which he did so, and the name and 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 it declares the service to have been duly effected. (O. 5, R. 17).

3. Service by registered post in addition to personal service:

The court shall, in addition to, and simultaneously with the issue of summons for service also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain. The court, however, shall not issue a summons for service by registered post, where, in the circumstances of the case, it considers it unnecessary.

When an acknowledgment purporting to be signed by the defendant or his agent is received by the court, or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the court Issuing the summons shall declare that the summons had been duly served on the defendant: provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the court within thirty days from the date of the issue of the summons. (O. 5, R. 19-A).

4. Delivery of summons by Court. (O. V, R. 9):

(1) Where the defendant resides within the jurisdiction of the court in which the suit is instituted, or has an agent resident within the jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the court.

(2) The proper officer may be an officer of a court other than that in which the suit is instituted and, where he is such an officer, the summons may be sent to him in such manner as the court may direct.

(3) The service of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such courier services as are approved by the High Court or by the court referred to in sub-rule (1) or by any other means of transmission of documents including fax message or electronic mail service provided by the rules made by the High Court :

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside the jurisdiction of the court in which the suit is instituted, and the court directs that the service of summons on that defendant may be made by such mode of service of summons as is referred to in sub-rule (3), (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.

(5) Where an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the court a postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier to the effect that the defendant or his agent had refused to take delivery of the postal article containing the’ summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding that fact that the acknowledgment having been lost or mislaid, for any other reason, had not been received by the court within thirty days from the date of issue of summons.

(6) The High Court or the District Judge as the case may be, shall prepare a panel of courier agencies for the purposes of sub-rule (1).

5. Summons given to the plaintiff for service (O. V, R. 9-A):

(1) The court may, in addition to the service of summons under rule 9, on the application of the plaintiff for the issue of a summons for the appearance of the defendant permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service.

(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tending to the defendant personally a copy thereof signed by the Judge or such officer of the court as he may approve in this behalf and sealed with the seal of the court or by such mode of service as is referred to in sub-rule (3) of rule 9.

(3) The provisions of rule 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.

(4) It such summons, when tendered, is refused or if the person served refuses to sign any acknowledgment of service or for any reason such summons cannot be served personally, the court shall on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.

6. Substituted service:

Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court house and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit. Service may be ordered to be effected by publication in a local daily newspaper. Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. (O. 5, R. 20).

7. Delivery of summons to the plaintiff or his agent. (O. V, R. 9):

(1) The court shall issue summons and deliver the same to the plaintiff or his agent, for service, and direct the summons to be served by registered post, acknowledgment, due or by speed post or by such courier service as may be approved by the High Court or by fax message or by Electronic Mail Service by such other means as the High Court may prescribe by rules, addressed to the defendant to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain.

(2) The plaintiff or his agent shall send the summons by any means as directed by the court under sub-rule (1) within two days from the delivery of summons to the plaintiff by the court under that sub-rule.

(3) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent received by the court or postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee or by any authorised person to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or refused to accept the summons by any other means specified in sub-rule (1), when tendered or transmitted to him, the court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that summons was properly addressed, pre-paid and duly send by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or misled or for any other reasons has not been received by the court on the date fixed by it.

8. Simultaneous issue of summons for service by the court-controlled process. (O. V, R. 9-A):

(1) The court may, in addition to and simultaneously with the delivery of summons for service to the plaintiff as provided in the manner provided in Rule 9, may also direct that summons to be served on the defendant or his agent empowered to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain.

(2) The summons shall, unless the court otherwise directs, be delivered or sent to the proper officer in such manner as may be prescribed by the High Court to be served by him or one of his subordinates.

(3) The proper officer may be an officer of the Court other than that in which the suit is instituted, and where he is such an officer, the summons may be sent to him in such manner as the court may direct.

(4) The proper officer may serve the summons by registered post acknowledgment due, by speed post, by such courier service as may be approved by the High Court, by fax message, by Electronic Mail Service or by such other means as may be provided by the rules made by the High Court.

9. Service of summons where defendant resides within the jurisdiction of another court. (O. V, R. 21):

A summons may be sent by the court by which it is issued, whether within or without the state either by one of its officers or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the High Court, to any court (not being the High Court) having jurisdiction in the place where the defendant resides.

10. Service within Presidency Towns of summons issued by Courts outside (O. V, R. 22):

Where a summons issued by any court established beyond the limits of the towns of Calcutta, Madras and Bombay is to be served within any such limits, it shall be sent to the court of small causes within whose jurisdiction it is to be served.

11. Service on defendant in prison. (O. V, R. 29):

Where the defendant is confined in a prison, the summons shall be delivered or sent by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the High Court, to the officer-in-charge of the prison for service on the defendant.

12. Service where defendant resides out of India and has no agent. (O. V, R. 25):

Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he 1s residing and sent to him by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail Service or by any other means as may be provided by the rules made by the High Court:

Provided that where any such defendant resides in Bangladesh or Pakistan, the summons together with copy thereof, may be sent for service on the defendant, to any court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

Provided further that where any such defendant is a public officer in Bangladesh or Pakistan (not belonging to Bangladesh or, as the case may be, Pakistan Military, Naval or Air Forces) or is a servant of a railway company or local authority in that country, the summons together with a copy thereof, may be sent for service on the defendant to such officer or authority in that country as the Central Government may, by notification in the Official Gazette, specify, in this behalf.

13. Service in foreign country through Political Agent or Court. (O. V. R. 26).—Where:

(a) in the exercise of any foreign jurisdiction vested or a court has been established or contained, with power to serve a summons, issued by a Court under this Code, in any foreign country in which the defendant actually and voluntarily resides, carries on business or personally works for gain, or

(b) the Central Government has, by notification in the Official Gazette, declared, in respect of any court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such court of any summons issued by a Court under this Code shall be deemed to be valid service,

the summons may be sent to such Political Agent or court, by post or otherwise, or if so directed by the Central Government but the purpose of being served upon the defendant, and, if the Political Agent or Court return the summons with an endorsement purporting to have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.

14. Summons to be sent to officers of foreign countries (O. V, R. 26-A):

Where the Central Government has by notification in the Official Gazette, declared in respect of any foreign territory that summons to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of that foreign territory specified by the Central Government, the summonses may be sent to such officer through the ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer returns any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant such endorsement shall be deemed to be evidence of service.

15. Service on Civil Public Officer or on servant of Railway Company or local authority (O. V, R. 27):

Where the defendant is a public officer, officer (not belonging to the Indian military, navel or, air force) or is the servant of a railway company or local authority the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with copy to be retained by the defendant.

16. Service on soldiers or sailors or airman (O. V, R. 28):

Where the defendant is a soldier, sailor or airman, the court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.

17. Substitution of letters for summons (O. V, R. 30):

(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by a Judge or such officer as he may appoint in this behalf, where the defendant is in the opinion of the Court, of a rank entitling him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated to a summons, and subject to the provisions of sub-rule (3) shall be treated in all respect as a summons.

(3) A letter so substituted may be sent to the defendant by post or by a special messenger selected by the court, or in any other manner which the Court thinks fit, and where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.