Section D Issue and Service of Processes

1.  Court to determine the form of summons. In order V, Rule 5 of the Code of Civil Procedure, it is laid down that 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. Thus, the question of what form of summons is to be issued is one which the Court is bound to consider and determine in each particular case.

2.  Summons to the defendant. Summons should be clearly and legibly  written and signed and the seal of the Court must be affixed. Order V, Rule 1(3) of the Code requires that the summons shall be signed by the judge or such officer as he appoints. In Courts, provided with Tehsildar Peshi/Private Secretary (Judicial) or Superintendents Grades III and IV or a Reader, he may be authorized to sign summonses; in all other Courts the Presiding Officer should himself sign them. The signature should in all cases be fully and legibly written. The summons must be framed so as to require the defendant to produce any document called for by the plaintiff, or on which the defendant intends to rely in support of his own case, and must state whether the case is fixed for the settlement of issues only, or for final disposal. It must also have attached thereto one of the copies of concise statements of the plaint which the plaintiff is bound to file with the plaint. Before issuing the summons, the Court should satisfy itself that the form selected is that appropriate to the order made under Order V, Rule 5, of the Code.

No Court can rightly proceed to hear a suit ex parte until it has been proved to the satisfaction of such Court that the summons to the defendant to appear has been duly served, that is, has been served strictly in such manner as the law provides. The nature of the proof of service which the Court ought to require in such cases has been noticed in Rule 7, Chapter 1-D, of the High Court Rules and Orders, Volume 1.

3.  The Revenue Courts should note that the rules for the service of summons on a person residing within or without India, differ. The two sets of Rules are contained in Rules 21-23 and Rules 25-26, Order V, of the Civil Procedure Code, which should be carefully studied.

(i) Service within India. If the process has to be served within the jurisdiction of another Court but within the same district, the agencies located at tehsils will be employed, the processes being transmitted by post, from one agency to another, if the process has to be served in another district, but within the state, it should be transmitted by post to the Collector through the Collector for services and return. But no Court should refuse to serve any process received for service within its jurisdiction from a Court in another district or State, merely by reason of the process not having been sent through the Collector. In issuing processes to districts in other States, they should be forwarded for execution to the Deputy Commissioner of the district in which service of such process is desired, except where they are to be served within one of the Presidency towns (Order V, Rule 22, Civil Procedure Code) when they should be transmitted for service to the Judge of the Court of Small Causes.

(ii) Service by post. The attention of the Revenue Officers and Revenue Courts is specially drawn to the provisions of section 20 of the Punjab Land Revenue Act and section 90 of the Punjab Tenancy Act, 1887, under which a summons may be served by registered post. This mode of service has proved speedy and useful and may be freely resorted to in addition to, or in substitution for, any other mode.

(iii) The Financial Commissioner is pleased to make the following rules under section 155(1) (C) of the Punjab Land Revenue Act regarding service of Revenue Processes: -

RULES

(1) Rules regarding service of revenue processes. Notwithstanding the separation of Revenue from the Civil Courts; Revenue Courts and Revenue Officers shall send the processes issued by them, for which process fee is charged, to the Civil process serving agency for service and execution.

(2) The control over income derived from process-fees in all Revenue Courts and Revenue Offices and the expenditure on establishment, etc., from this source, shall be retained by the High Court. The Commissioner and the Subordinate Revenue Courts and Officers shall maintain the registers and accounts prescribed by the Rules and Orders of the High Court and submit the annual returns in the prescribed form.

(3) The Revenue Courts and Officers of the Punjab are for the purpose of levying process-fees divided into three grades as shown in the annexed table: -

The process fee shall be levied in accordance with the rules framed by the High Court of Punjab State under section 20(1) (ii) of the Court Fees Act, 1870, as contained in Chapter 5-B of the High Court Rules and Orders, Volume IV.

Service of the processes of the Courts in India in places beyond India:

4.  Service by post to the general rule. Order V, Rule 25, of the Code of Civil Procedure, provides generally, that if that if the defendant resides out of India and has no agent in India empowered to accept the service, the summons shall be addressed to the defendant at the place where he is residing, and forwarded to him by post, if there be postal communication between such place and the place where the Court is situate. In practice, all summonses so sent should, where possible, be sent by registered post, and should be “registered acknowledgment due”

5.  Service in foreign territory generally. Provisions for service of summonses in foreign territory are contained in Order V, Rule 26. Under this rule the State Government is also empowered to declare by notification that any summons issued by the Court of the State may be served by any court in foreign territory although such Court has not been established or continued by the Central Government. This rule is inapplicable to British or other territories not under or connected with the Indian Government, such as Ceylon, the Straits Settlement, and similar places. The general direction contained in Order V, Rule 25, would apply in all such cases (see above paragraph.)

6. Deleted.

7.  Service in foreign territories, where no special arrangements exist. When service by post under Order V, Rule 25, has failed and it is desired to proceed under Order V, Rule 26, Civil Procedure Code, the summons should be submitted to the Commissioner of the Division for transmission to the State Government. They should never be sent direct to the Court of Foreign territories. Before issuing summons, the Court should enquires from the postal authorities the time that it normally takes for a letter to get to the required place the must then double that time and add not less than two months to it in fixing the date of hearing for the case. But in no case should less than 4 months be allowed for such services.

In forwarding such summonses to Collectors, for transmission to the Commissioner, subordinate Courts must certify that service by post has been tried and failed and also state in what manner it has failed.

On receipt of summonses from subordinate Courts, it will be the duty of the Superintendent Grade IV or Reader to the Collector before transmitting the same to the Commissioner, to examine the summonses carefully and bring the defect, if any to the notice of the Collector, who should send the same back for correction if necessary to the Court issuing the summonses.

Summonses, notices and other judicial documents intended for service in foreign countries should always be accompanied by translations in the language of the country in which service is to be effected, at the expenses of the party at whose instance summonses, etc., are issued. Wherever possible, summonses should be typewritten in English and must be checked and legibly signed by the Presiding Officer of the Court who will be held personally responsible for their nearness and accuracy.

Other Countries

8.  Section 29 of the Code of Civil Procedure lays down that the Summonses and other processes issued by ---

(a)  any Civil or Revenue Court established in any part of India to which the provisions of Code of Civil Procedure do not extend; or

(b)  any Civil or Revenue Court established or continued by the authority of the Central Government outside India; or

(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. It has further been laid down on Order V, Rule 26(b) that where the Central Government, by notification in the Official Gazette, declare in respect of ay Court situate in any such territory, that service by such Court of any summonses shall be deemed to be valid service.

Apart from such arrangements Courts in India must be guided by Order V, Rules 25 and 26 of the Code of Civil Procedure.

9. Interrogatories. In the case of all foreign territories interrogatories should be transmitted through the channels prescribed for summonses.

10.  Cases in which Indian Officers or Soldiers are concerned. Unnecessary delay in the cases in which Indian officers or soldiers or members of the Military Reserves are concerned should be avoided, and the attention of Revenue Officers is drawn to Chapters 6-A administration 6-B of the High Court Rules and Orders, Volume 1. In disposing also of Revenue business, such as partition cases and appointments of lambardars, in which one of the parties to the case is an Indian officer or soldier on leave for a limited period, this fact should be taken into consideration by the Revenue Officer in fixing the order in which the cases shall be set down for hearing and an attempt should be made to decide such cases within the period for which the officer or soldier has obtained leave to be present at the hearing.

11.  Defendant to present a written statement. It is laid down in Order VIII, Rule I, of Code of Civil Procedure, that a defendant may, and if so required by the court shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Ordinarily it is advisable to require which written statement and the Court should at the time of issuing summons call for a written statement from the defendant of the date fixed for his appearance. In most cases, there should be no difficulty in presenting such written statement on the date fixed, and no adjournment should be given for the purpose except for good cause shown, and in proper cases, costs should be awarded to the opposite side. Laxity in granting adjournments for the purpose of filing written statements should be avoided, and it should be noted that in extreme cases contumacious refusal to comply with the Court’s order is liable to be dealt with under order VIII, Rule 10, Civil Procedure Code.

12.  Written statement to be accompanied by documents relied upon. Rule 1 of Order VIII (as amended by the High Court) further requires the defendant to produce with the written statement all documents in his possession or power on which he bases his defence or claim to set-off, if any. If he relies in support of his case on any other documents, not in his possession or power, he must annex a list thereof to the written statement. With the written statement, the defendant must also file his address for service during the litigation.

13.  Plaintiff may also be called upon to file a written statement. When the defendant has filed a written statement, the Court may call upon the plaintiff to file a written statement in reply. Under Order VIII, Rule 9 the Court has power to call upon both parties to file written statements at any time and this power should be freely used for elucidating the pleas when necessary, especially in complicated cases. In simple cases, however, examination of the parties, after the defendant has filed his written statement, is generally found to be sufficient.

14.  Each defendant should, as a rule, file separate written statement. In all cases where there are several defendants the Court should, as a rule, take a separate written statement from each defendant, unless the defences of any defendants filing a joint written statement are identical in all respects. There may be different defences based upon a variety of circumstances and these should not be allowed to be mixed up together in a single statement merely because all the defendants deny the plaintiff’s claim.

15.  Set-off. Written statement called from the parties may be on plain paper, but when the defendant claims in his written statements any sum by way of set-off under Order VIII, Rule 6, Civil Procedure Code, the statement must be stamped in the same manner as plaint in a suit for the recovery of that sum.

16.  General and special rules as to written statements. A ‘written statement’ is included in the definition of ‘pleading (vide Order VI, Rule 1)’, and should conform to the general rules of pleading given in order VI as well as the special rules with regard to written statements in Order VIII. All admissions and denials of facts should be specific and precise and not evasive or ambiguous. When allegations of fraud, etc., are set, the particulars should be fully given. When any legal provisions is relied on, not only the provision of law relied upon should be mentioned, but also the facts making it applicable should be stated. For instance, when a plea of res-judicata is raised, not only the provision of law (e.g. section 11 of the Civil Procedure Code) should be mentioned, but also the particulars of the previous suit which is alleged to bar the suit, be given.