Summonses and other processes issued by:
(a) Any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extend, or
(b) Any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or
ADVERTISEMENTS:
(c) Any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply, may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.
Essentials of a summons:
Every summons shall: (i) intimate to the defendant of the date of hearing and whether he is to appear in person or by a pleader; (ii) contain a direction whether the date is fixed for settlement of issues only or final disposal of the suit, and (iii) order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case. A summons in a small cause court suit shall be for final disposal and shall direct the defendant to produce his witnesses on the date fixed upon whose evidence he intends to rely in support of his case.
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ADVERTISEMENTS:
Exemption from attendance:
No party shall be ordered to appear in person : (1) unless he resides (a) within the local limits of the Court’s ordinary original jurisdiction, or (b) without such limits but at a place less than 50 or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the court is situate), less than 200 miles distance from the court house (Order V, Rule 4);
(2) If she is a woman not appearing in public according to the customs and manners of the country (S. 132); and
(3) If he falls in the category of persons exempted from personal appearance in Court under section 133, viz., (i) the President of India, (ii) the Vice-President of India, (iii) the Speaker of the House of the People, (iv) the Ministers of the Union, (v) the Judges of the Supreme Court, (vi) the Governors of States and the Administrators of Union territories, (vii) the Speakers of the State Legislative Assemblies, (viii) the Chairman of the State Legislative Councils, (ix) the Ministers of States, (x) the Judges of the High Courts, and (xi) rulers of any former Indian States to whom section 87-B, viz., in relation to d’ suit based upon a cause of action which arose before commencement of the Constitution, i.e., 26th January, 1950. (S. 133).
ADVERTISEMENTS:
(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.
(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 services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgement 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 acknowledgement due), the provisions of rule 21 shall not apply.
(5) When an acknowledgement or any other receipt purporting to be signed by the defendant or his agent is 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 person authorised by the courier service 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, pre-paid and duly sent by registered post acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has 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).
9-A. Summons given to the plaintiff for service:
(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 of the Court as he may appoint 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 rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, reissue such summons to be served by the Court in the same manner as a summons to a defendant.] (Order V, Rules 9 and 9-A).
Delivery or transmission of summons for service:
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 to the proper officer to be served by him or one of his subordinates. [Order V, Rule 9(1)].
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 by post or in such other manner as the court may direct. [Order V, Rule 9(2)].
Nataraja Iyer v. Nacharammal:
It would appear from Order V, Rule 9(2), C.P.C. that even though summons is served by post, if the defendant does not appear on the day fixed in the summons, the court has to direct that the summons shall be delivered or sent to the proper officer to be served by him or one of his subordinates on the defendant.
In the context in which the word ‘may’ is used, it has to be interpreted as “shall”. The word ‘may’ includes “may not” but is also capable of meaning ‘must’ or “shall” depending upon the context in which it is used.
Where discretion is conferred upon the court coupled with an obligation, the word ‘may’ denotes “shall”. It is the duty of the courts in construing a statute to give effect to the intention of the legislature. A literal meaning may defeat the object of the legislature.
The word ‘ma/ has been used by the legislature in some cases as a matter of pure conventional courtesy, though the word is intended to be mandatory in force. In order to interpret the legal import of the word ‘may’, the context in which the word is used and the advantage sought to be achieved have to be considered.
Obviously because the court has no control over the postman and there is every possibility of the summons or notice being served on a wrong person with the same name, service of summons through the court again, if the defendant does not appear after the purported service of summons by post, was deemed necessary and laid down in the aforesaid rule.
