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 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 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.

(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.

Rule 2: Copy of plaint annexed to summons.—

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

Rule 3: Court may order defendant or plaintiff to appear in person.—

(1) Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

(2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.

Rule 4: No party to be ordered to appear in person unless resident with certain limits.—

No party shall be ordered to appear in person 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 fifty 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 two hundred miles’ distance from the Court House.

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 6: Fixing day for appearance of defendant.—

The day under sub-rule (1) of Rule 1 shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.

Rule 7: Summons to order defendant to produce documents relied on by him.—

The summons to appeal and answer shall order the defendant to produce all documents or copies thereof specified in Rule 1-A of Order VIII in his possession or power upon which he intends to rely in support of his case.

Rule 8: On issue of summons for final disposal, defendant to be directed to produce his witnesses.—

Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to rely in support of his case.

IMPORTANT CASE LAWS

1. Nature of Rule 1

Thakurdas Majhi v. Chand Majhi, AIR 1960 Cal 538: “Under O. V, R. 1, service of summons on the defendant is obligatory in every suit, unless the case comes within the proviso which contemplates the case of a defendant who has entered appearance at the presentation of the plaint and who has admitted the plaintiffs claim……”

Duty of the Court while issuing summons

Nahar Enterprises v. Hyderabad Allwyn Ltd., (2007) 9 SCC 466: “…..When a summons is sent calling upon a defendant to appear in the court and file his written statement, it is obligatory on the part of the court to send a copy of the plaint and other documents appended thereto, in terms of Order 5 Rule 2 CPC.”

CONNECTED SECTIONS

1. Section 27

2. Section 31