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Summons under CPC
An order to appear before a judge or magistrate, or the writ containing such an order.
Summons are document issued by a court ordering a specific person to appear at a specific time for some specific purpose. A summon is usually served when legal action is taken against an individual, or a person is required to appear before a court as a witness in a proceeding. It is issued either directly to the person or to a law officer who must carry out the instructions.
Summons to defendants is described in Section 27. —Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed on such day not beyond thirty days from date of the institution of the suit.
Section 28 deals in Service of summons where defendant resides in another State and Section 29 deals in Service of foreign summonses.
Summons to witness is given in Section 31 to give evidence or to produce documents or other material objects according to the provisions in sections 27, 28 and 29 shall apply to summonses.
Section 32 deals in Penalty for default.—The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding five thousand rupees;
(d) order him to furnish security for his appearance and in default commit him to the civil prison
ORDER V Issue and service of summons
Rule 1 to Rule 8 deal in Issue of Summons
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 plaintiffs 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 same 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.
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 and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.
Rule 2. Copy of plaint annexed to summons.
Rule 3. Court may order defendant or plaintiff to appear in person.
Rule 4. No party to be ordered to appear in person unless resident within certain limits.
Rule 5. Summons to be either to settle issues or for final disposal.
Rule 6. Fixing day for appearance of defendant.—
Rule 7. Summons to order defendant to produce documents relied on by him.
Rule 8. On issue of summons for final disposal, defendant to be directed to produce his witnesses.
Rule 9 to Rule 30 deal in Service of Summons:
Rule 9. Delivery of summons by Court.—
Rule 9A. 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.
Rule 10. Mode of service.—Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.
Rule 11. Service on several defendants.
Rule 12. Service to be on defendant in person when practicable, or on his agent.
Rule 13. Service on agent by whom defendant carries on business.
Rule 14. Service on agent in charge in suits for immovable property.
Rule 15. Where service may be on an adult member of defendant's family.
Rule 16. Person served to sign acknowledgment.—
Rule 21. Service of summons where defendant resides within jurisdiction of another Court.
ORDER IX Appearance of Parties and Consequence of Non-appearance
Rule 1. Parties to appear on day fixed in summons for defendant to appear and answer.—On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.
Rule 2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.—Where on the day so fixed it is found that summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed: Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.
Rule 5. Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons. —
(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of seven days from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that—
(a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.
Rule 6. Procedure when only plaintiff appears.—
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—
(a) When summons duly served.—if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;
(b) When summons not duly served.—if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time.—if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
Rule 8. Procedure where defendant only appears.—Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
Rule13. Setting aside decree ex parte against defendant.—In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.