Author Name:   usman karim

Order V CPC. Importance and significance of process of summoning.

Summoning of Defendant

Last month I had an opportunity to go through a brief of a civil suit which has been decreed by the civil court through an ex-parte judgment and decree and the defendant, who seek reversal of the said judgment,  has failed to convince the courts including the High Court that he was not duly served and the decree has been passed without following the due process of law, resulting in failure of justice.

It was really painful to notice that right from the trial court uptil the High Court neither the judges nor the lawyers of losing party bothered to find out that; whether the process of service of summons on defendant, as per the law had been complied with or not? And if there is non-complaince of relevant provisions of Code of Civil Procedure, 1908 (CPC), whether the ex-parte decree would still hold field or the same would have no value in the eye of law? Through the instant piece I shall try to find out the answers of these questions which has significant importance in our system of administration of justice.

As per section 27 of the CPC, if the suit is properly instituted then the court may issue summons to defendant to appear and answer the claim in the manner as prescribed. The relevant provisions as prescribed by the competent authority for summoning of defendant are available in Order V of the First Schedule of CPC which is titled as "Issue and service of summons".

Summons on duly instituted suit:
Rule 1 of the Order V talks about the issuance of summons on a "duly instituted suit", which expression casts duty on the court, before issuing the summons to the defendant to ascertain that whether the suit has duly been instituted in accordance with the relevant provisions of CPC or other governing law(s). In my experience, generally the learned Civil Judges don't even bother to go through even the contents of plaint before ordering the issuance of summons what to talk about ascertaining that whether the suit has duly been filed or not? So the first think which lawyers should take care of before presenting the plaint in the court is, that there should not be such a defect in their suit which may render the same as not validly instituted suit, and for the judges, it is their obligation to satisfy themselves, before issuance of summons to defendant, that whether the suit is duly instituted or not, and in case their is some apparent defect in the suit then, before issuance of summons, the plaintiff should have been required to remedy the defect.

Summons should be accompanied by the plaint:
Rule 2 requires that summons in the name of defendant must be accompanied by the plaint or, if the court so permits, by a concise statement. This requirement is also not complied with in most of the cases. In my view, which is also supported by a judgment of honourable Lahore High Court, the judge issuing the summons should also pass an explicit direction to office that summons should be issued with the copy of plaint attached with it.

Form of summons:
The next provision which is relevant to the discussion is rule 5 which is being ignored and violated with impunity by every court, which is reproduced as under for ready reference:

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.

The mentioned rule requires that the court is bound to determine, before issuance of summons, whether the summons shall be issued for settlement of issues only or for the final disposal of the suit. In my almost 15 years of practice I have not seen any single order of a civil judge specifically determining that what kind of summons, either for settlement of issues or for final disposal of the suit should be issued. I have also noticed that in many cases the summons are issued for final disposal rather than for settlement of issues which is such an illegality which may render the whole subsequent proceeding of the suit as nullity.

Here another question arises which need to be briefly addressed before further going on viz. why there is no provision for summoning of defendant for simple appearance or for filing written statement. It would be also hard for some of us to understand that how the summons for settlement of issues may be issued without first requiring the defendant to file written statement. The key to resolve these confusions lies in rule 7 & Form No. 2 of Appendix B of First Schedule of CPC. Form No. 2 is reproduced as under:

SUMMONS FOR SETTLEMENT OF ISSUES (O.5, rr. 1, 5.)
(Title)
To,
[Name, description and place of residence.]
    WHEREAS_____________________________________________________________
has instituted a suit against you for ______  you are hereby summoned to appear in this Court in person or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the day of day of 19___, at  o'clock in the _______ noon, to answer the claim ; 6[and further you are hereby directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counter-claim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim, you shall enter such documents in a list to be annexed to the written statement].

Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

GIVEN under my hand and the seal of the Court, this _______ day of _____19____ .

Judge.
The language employed in the summons is simple enough to understand that under the scheme of the Code, on or before the date mentioned in the summons for settlement of issues, the defendant is bound to submit written statement, produce all the documents in his possession upon which he bases his defence or claims set-off or counter claim. In the light of the above discussion we may conveniently conclude that the judge, if fails to determine that which summons should have been issued or issues wrong summons in the facts and circumstances of the case, would commit an illegality and material irregularity.

Service of summons:
After issuance of summons by the court the next stage is the service of summons on the defendant. Rules 9 to 16 deals with the manner in which the service of summons may be made. Rule 9 says that summons should be served by the proper officer or his subordinate. Rule 10 prescribes the mode of service viz. by delivering or tendering of duly signed and sealed summons.

Service by post:
As per rule 10-A, at the time of issuing the summons under rule No. 9, another copy of the summons shall be sent to the defendant through registered post, acknowledgement due. This provision is also not being complied with in almost all the cases as in practice only summons are sent through registered post but acknowledgement due cards are not accompanied with the post and due to this defect the whole exercise of service through registered post loses its legal value because sub-rule (2) of rule 10-A has categorically mentioned that only the signature of defendant on the acknowledgement or endorsement thereon by the postman regarding refusal of defendant to take the summons shall be prima facie proof of service and not otherwise. So summons which have been sent through registered post but without acknowledgement due would not carry presumption of service on defendant.

Service should be made in person:
Rule 12 requires that service of summons should  be made in person or through authorised agent, however if the defendant cannot be found and also has no authorised agent then service of summons on an adult male member of defendant's family would be considered as good service (rule 15).

Person served to sign acknowledgement:
Under rule 16 the serving officer is bound to require the person on which the summons are served, after delivering the copy of summons to him, to sign the original summons in acknowledgement of receipt of summons. As per rule 18 the serving officer who has served the summons as per rule 16 would make an endorsement on the summons regarding the manner of service and then, under rule 9 (3) would return the summons to the court. If the service is effected under Rule 16 then, under the law there is no need of further service of summons but in practice usually the courts, in some cases repeat the process of service or order for substituted service through pasting of summons at the house of defendant or publication in newspaper or both, which exercise is unnecessary and unjustifiable.

Substituted service:
Now we shall consider that in what circumstances the court may order for service of summons through substituted mode and what are the prerequisites for passing the said order?
Rule 20 requires that the court may only pass an order for substituted service when it comes to the conclusion that, either the defendant is keeping out of the way for the purpose of avoiding service or for any other reason the summons cannot be served in ordinary manner.

How the court will conclude that the defendant is keeping himself out of way for the purpose of avoiding service? The answer lies in Rule 17 & 19.
As per Rule 17, if the defendant or any other person liable to receive summons under the law refuses to receive the same or if the serving officer, despite exercise of due diligence cannot find the defendant or his agent or person liable to accept summons, then he would affix the copy of summons on the house or place of work of the defendant and return the original summons to the court with the endorsement about the circumstances in which the affixation of summons has been made. The court after receipt of original summons along with the endorsement under rule 17 would be bound to satisfy itself about the veracity of the report of serving officer. Rule 19 says that if the endorsement under Rule 17 is accompanied by an affidavit of serving officer then it may after considering such affidavit either declare that service has been duly effected or order such service as it will think fit. However, despite the affidavit of the officer the court may require such officer to appear in court and the court may examine him oath before passing any order regarding service. But in case of non submission of affidavit by serving officer the court can neither pass the order of service, which includes substituted service, nor it can declare that service has been duly effected unless it examines the serving officer on oath.
I think most of the lawyers would agree with me that before ordering the substituted service the courts does not follow the provisions of Rules 17 & 19 and the order for substituted service is made in a mechanical manner which rendered the substituted service illegal.

Here I like to reproduce a few lines from a celebrated judgment of honourable Supreme Court of Pakistan in Syed Muhammad Anwar, Advocate vs. Sheikh Abdul Haq (1985 SCMR 1228) in which the apex court has given guidelines to the trial court that what are the requirements for passing the order for substituted service. The Supreme Court while discussing the provisions of Order V held:
"Under these provisions the service could be effected on the defendant personally, by the registered post, through his authorised agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in rule 17 that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no 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 and shall then return the original to the Court from which it was issued, with the 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. It is clearly borned out from the record that no resort to this ordinary way of service of the summons on the defendant, his agent (if any) or the male member of his family was at all made in this case. In these circumstances, the learned Senior Civil Judge on the 4th of February, 1947 was not justified in forming the opinion that no service on the defendant could be effected in the ordinary way. In his order dated 9-4-1978, the learned Senior Civil Judge while setting aside the ex parte decree though on some what different consideration, was of the opinion that there was no reason to conclude that the "summons could not be served on the defendant in the ordinary way" and, therefore, the substituted service effected on him was not justified in the circumstances of the case."

Substituted service through publication in newspaper:
Rule 20 has mentioned number of modes of substituted service but usually the courts pass the order of substituted service through publication in newspaper.
If we go through Rule 20 (1) (e) then it would become clear that law requires the publication of summons (as prescribed under Rule 5) in the newspaper but not in a single case in which order of substituted service is passed by civil court you will find publication of summons rather in every case a simple intimation about the pendency of suit in which defendant is required to appear on given date is issued. Such an intimation in no way may be construed as service of summons, therefore, legally speaking initiation of ex parte proceeding after issuance of such intimation can not be considered valid proceeding.

Right of hearing & due process:
The service of defendant in a civil suit intimating him about the claim of plaintiff and requiring him to answer the said claim, is not only a legal right rather it is fundamental right of every defendant, guaranteed under Articles 4 & 10-A of the Constitution.

Article 4 provides guarantee that every citizen will be treated in accordance with law and the Supreme Court of Pakistan has held that right of hearing is the fundamental right of every citizen. While Article 10-A has declared that every citizen will be entitled to fair trial and due process.

In my humble view, the courts seized of a civil suit is bound under the above mentioned constitutional provisions to rigorously follow the provisions of Order V CPC and even a minor deviation which may result into ex parte proceeding and subsequent decree may result into deprivation of fundamental of the defendant.

ISBN No: 978-81-928510-1-3
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