Section 28 CPC: Service of summons where defendant resides in another State

Section 28 of Code of Civil Procedure: Service of summons where defendant resides in another State

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(1) Where the defendant resides in another State, the summons may be sent for service to the Court having jurisdiction in the place where the defendant resides.

(2) The Court to which such summons is sent shall proceed as if it had been issued by such Court and return the summons to the Court of issue with the record of service.

Legal Commentary & Landmark Judgments: Section 28

Section 28 of the Code of Civil Procedure, 1908 regulates the interstate transmission and judicial service of civil summonses when a defendant resides beyond the territorial borders of the issuing State.

Process Issuance & Attendance: Under Section 28(1), when a defendant resides in another State, the court issuing the summons may transmit the process directly to the civil court possessing territorial jurisdiction over the locality where the defendant actually resides or carries on business.
Sub-Section (2): Order: Under sub-section (2), the serving court treats the forwarded process with identical authority as if it were a summons originally issued by itself, executing service through its own process servers under Order V.

Upon completing or attempting service, the serving court must remit the summons back to the issuing court accompanied by its official judicial record of service. Sub-section (3) dictates that if the language of the serving record differs from that of the issuing court, a certified translation in Hindi or English (where English is the language of the court) must accompany the return. The record of service and serving officer's affidavit returned under Section 28 constitute prima facie proof of valid service under Order V Rule 19, empowering the issuing court to proceed ex parte if the defendant fails to appear.

Key Landmark Precedents:

Sushil Kumar Sabharwal v. Gurpreet Singh, (2002) 5 SCC 377: The Supreme Court held that service of summons is not an empty formality; the serving officer's report under Section 28 and Order V Rule 19 must demonstrate strict compliance with procedural requirements, failing which an ex-parte decree is liable to be set aside under Order IX Rule 13.
M.G. Dua v. Premlata, AIR 1983 Del 456: The High Court affirmed that when summons is transmitted under Section 28, the serving court acts as an agent of the issuing court, and its certificate of service or refusal endorsement carries a strong statutory presumption of procedural regularity.

Legal Commentary:

In modern practice, interstate service under Section 28 operates in tandem with Order V Rule 21 and Order V Rule 9(3), allowing simultaneous service through registered post acknowledgment due (RPAD), speed post, or approved courier services. Where postal service fails or defendant evades, recourse to the court-to-court mechanism under Section 28 ensures formal verification through bailiff endorsement.

Section 28: Service of summons where defendant resides in another State

Section 28 of Code of Civil Procedure: Service of summons where defendant resides in another State

Legal Commentary & Landmark Judgments: Section 28