Summoning of Defendant

(1) Summoning of Defendant:

Summoning of the Defendant Last month, I had the opportunity to review the brief for a civil suit that had been decreed by an ex-parte judgment and decree. The defendant, who sought to have the decree reversed, failed to convince the courts, including the High Court, that he was not properly served and that the decree was passed without following the due process of law, resulting in a lack of justice.

It was truly agonizing to see that right from the preliminary court uptil the High Court neither the adjudicators nor the legal advisors of losing party tried to figure out that; whether the course of administration of request on litigant, according to the law had been followed or not? And if the relevant provisions of the Code of Civil Procedure, 1908 (CPC) are not violated, does this mean that the ex-parte decree would still be valid or would have no legal weight? I'm going to try to find the answers to these questions, which have a big impact on how our justice system works, in this piece.

According to segment 27 of the CPC, in the event that the suit is appropriately founded, the court might give summons to respondent to show up and answer the case in the way as endorsed. In Order V of the First Schedule of the CPC, which is titled "Issue and service of summons," you can find the relevant provisions that have been established by the competent authority for the purpose of summoning the defendant.[1]

(2) summons on properly filed suit:

Rule 1 of Order V says that a summons must be issued for a "duly instituted suit," which means that the court must check to see if the suit has been properly instituted in accordance with the relevant CPC or other governing law(s) before issuing the summons to the defendant. I would say, by and large the learned Common Appointed authorities don't for even a moment trouble to go through even the items in plaint prior to requesting the issuance of request what to discuss discovering that regardless of whether the suit has properly been documented? So the principal figure which legal counselors ought to deal with prior to introducing the plaint in the court is, that there ought not be such an imperfection in their suit which might deliver equivalent to not legitimately founded suit, and for the adjudicators, it is their commitment to fulfill themselves, before issuance of request to respondent, that regardless of whether the suit is properly organized, and on the off chance that their is some evident deformity in the suit then, before issuance of request, the offended party ought to have been expected to cure the imperfection.[2]

(3) The plaint should be included with summons:

Rule 2 stipulates that the plaint or, if permitted by the court, a concise statement must accompany a summons issued in the defendant's name. This necessity is likewise not followed in a large portion of the cases. My opinion, which is also supported by a judgment from the Lahore High Court, is that the judge issuing the summons should also explicitly instruct the office that the summons should include a copy of the plaint.[3]

(4) Types of summonses:

Rule 5, which every court blatantly ignores and violates, is the subsequent provision that is relevant to the discussion. It is reproduced below for your convenience:

5. either summons to resolve issues or summons for final disposal. The Court will decide, at the hour of giving the request, whether it will be for the settlement of issues just, or for the last removal of the suit; what's more, the request will contain a heading in like manner:

Given that, in each suit heard by a Court of Little Causes, the request will be for the last removal of the suit.

The referenced decide expects that the court will undoubtedly decide, before issuance of request, whether the request will be given for settlement of issues just or for the last removal of the suit. In my nearly 15 years of practice, I have yet to see a single civil judge's order that specifically specifies the type of summons that should be issued for the settlement of issues or the final disposition of the suit. I have likewise seen that as a rule the request are given for conclusive removal as opposed to for settlement of issues which is such a wrongdoing which might deliver the entire resulting continuing of the suit as nullity.

Before proceeding any further, there is yet another question that needs to be briefly addressed here: why there is no arrangement for calling of litigant for basic appearance or for documenting composed articulation. It would also be difficult for some of us to comprehend how the defendant would be required to submit a written statement before the summons for settlement of issues could be issued. The way to determine these disarrays lies in rule 7 and Structure No. 2 of Index B of First Timetable of CPC. Structure No. 2 is imitated as under:

Brings FOR SETTLEMENT OF ISSUES (O.5, rr. 1, 5.)

(Title) To: [Name, description, and address.]

In light of the fact that ____________________________________________________________ has filed a lawsuit against you for ____, you are hereby summoned to respond to the claim in person or by a pleader who has been properly instructed and is able to answer all material questions about the suit, or who will be accompanied by someone who is able to answer all such questions. 6[and further you are thusly coordinated to record on that day a composed assertion of your guard and to create on the said day all reports in your control or power whereupon you base your protection or guarantee for set-off or counter-guarantee, and where you depend on whatever other archive regardless of whether in your control or power, as proof on the side of your safeguard or guarantee for set-off or counter-guarantee, you will enter such reports in a rundown to be added to the composed statement].

Please be aware that the suit will be heard and decided in your absence if you fail to appear on the preceding day.

GIVEN under my hand and the mark of the Court, this _______ day of _____19____ .[4]

(5) Judge:

The language utilized in the request is adequately straightforward to comprehend that under the plan of the Code, prior to the date referenced in the request for settlement of issues, the litigant will undoubtedly submit composed explanation, produce every one of the records in his control whereupon he bases his guard or claims set-off or counter case. In the illumination of the above conversation we may helpfully presume that the appointed authority, if neglects to discover what summons ought to have been given or issues wrong brings in current realities and conditions of the case, would commit an illicitness and material abnormality.[5]

(6) delivering the summons:

After issuance of request by the court the following stage is the assistance of request on the respondent. Rules 9 to 16 arrangements with how the help of request might be made. Decide 9 says that summons ought to be served by the appropriate official or his subordinate. Rule 10 recommends the method of administration viz. by handing over or presenting properly signed and sealed summons.[6]

(7) Postal support:

When the summons was issued in accordance with rule No. 9, one more duplicate of the request will be shipped off the litigant through enlisted post, affirmation due. This arrangement is likewise not being consented to in practically every one of the cases as by and by just request are sent through enrolled post however affirmation due cards are not went with the post and because of this deformity the entire activity of administration through enlisted post loses its legitimate worth since sub-rule (2) of rule 10-A has completely referenced that main the mark of litigant on the affirmation or support consequently by the mailman in regards to refusal of respondent to take the request will be at first sight verification of administration and not in any case. Therefore, there would be no presumption of service on the defendant for a summons that was sent by registered mail but did not include an acknowledgement of receipt.[7]

(8) Person-to-person service is preferred:

Rule 12 stipulates that the summons must be served personally or through an authorized agent; however, if the defendant cannot be located and does not have an authorized agent, the summons may be served on an adult male member of the defendant's family (rule 15).[8]

(9) Person who signed the acknowledgment:

Under rule 16 the serving official will undoubtedly require the individual on which the request are served, subsequent to conveying the duplicate of request to him, to sign the first gathers in affirmation of receipt of request. According to govern 18 the serving official who has served the request according to manage 16 would make a support on the request with respect to the way of administration and afterward, under rule 9 (3) would return the request to the court. In the event that the assistance is affected under Rule 16, under the law there is no need of additional help of request however practically speaking typically the courts, now and again rehash the course of administration or request for subbed administration through gluing of request at the place of respondent or distribution in paper or both, which exercise is superfluous and baseless.[9]

(10) Subbed administration:

We will now consider the circumstances under which the court may order substituted service of summons and the requirements for such an order.

Rule 20 stipulates that the court may only issue an order for substituted service if it determines that the defendant is obstructing service or that the summons cannot be served in an ordinary manner for any other reason.[10]

(11) Conclusion:

The summoning of the defendant has concluded, marking a crucial step in the legal proceedings. This process ensures the defendant is informed about the case, allowing them to respond appropriately. Now, the stage is set for further actions within the legal framework. If there are specific details you'd like me to address or expand upon, feel free to provide more information!

(12) Citation:

1. Usman karim, Summoning of Defendant, available at: https://www.legalservicesindia.com/article/2578/Summoning-of-Defendant.html (last visited on December 7, 2023).

2. Ibid

3. Ibid

4. Ibid

5. Ibid

6. Ibid

7. Ibid

8. Ibid

9. Ibid

10. ibid