Order V CPC: Issue and Service of Summons

Order V of Code of Civil Procedure: Issue and Service of Summons

Official Bare Act Text

Override / Mandate Court Discretion Procedural Action Non-Compliance Limitation Monetary

Rule 1. Summons

(1)When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:

Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim:

Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

Rule 2. Copy of plaint annexed to summons

Every summons shall be accompanied by a copy of the plaint.

Rule 5. Summons to be either to settle issues or for final disposal

The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:

Provided that , in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

Rule 9. Delivery of summons by Court

(1)Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that 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.

(3)The services 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.

Rule 9A. Summons given to the plaintiff for service (Dasti Summons)

(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 tendering to the defendant personally a copy thereof signed by the Judge or such officer as he may appoint in this behalf and sealed with the seal of the Court or by such other means as are referred to in sub-rule (3) of rule 9.

Rule 17. Procedure when defendant refuses to accept service, or cannot be found

Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, 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 shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto 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.

Rule 20. Substituted service

(1)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 other 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.

(1A)Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.

(2)Effect of substituted service: Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

Legal Commentary & Landmark Judgments: Order 5

Order V prescribes the statutory procedure for the issuance and service of summons upon defendants, establishing a thirty-day service window and modern multi-modal delivery systems.

Thirty-Day Summons Mandate [R. 1]: When a suit has been duly instituted, summons may be issued to the defendant to appear and answer the claim on a day specified therein, within 30 days from the date of institution.
Service by Court & Speed Post [R. 9]: Summons delivered by court bailiff, registered speed post with acknowledgment due, approved courier services, or verified electronic transmission (email, fax).
Substituted Service [R. 20]: Where defendant keeps out of the way to avoid service, court may order substituted service by affixing a copy in a conspicuous part of the courthouse and house, or by publication in a local daily newspaper.
Conclusive Deemed Service: Refusal to accept delivery or deliberate evasion constitutes good and sufficient service under Rule 9(5).

Key Landmark Precedents:

Salem Advocate Bar Association (II) v. Union of India, (2005) 6 SCC 344: The Supreme Court held that service of summons through modern electronic means, speed post, and courier under Order 5 Rule 9 is legally valid and binding on the defendant.
Neerja Realtors Pvt. Ltd. v. Janglu, (2018) 2 SCC 649: The Supreme Court held that substituted service under Order 5 Rule 20 cannot be granted mechanically; the court must record its satisfaction that the defendant is intentionally evading process before ordering newspaper publication.

Courtroom Practice & Strategic Litigation Guidance:

If a defendant deliberately refuses speed post delivery, submit the postal tracking delivery report marked 'Refused' under Order 5 Rule 9(5); refusal operates as complete legal service allowing ex-parte trial.

Order V: Issue and Service of Summons