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Report No. 27

Order V, rule 20

1. The Fourteenth Report contains a recommendation1 to empower the court to order substituted service where a summons sent for personal service has been returned unserved twice.

It is, however, considered unnecessary to insert any such rigid provision of this nature.

2. It is considered, that where substituted service by advertisement in newspapers is ordered, the newspapers should be those circulating in the neighbourhood. Necessary change has been proposed.

1. 14th Report, Vol. I.

Order V, rule 20A

This is consequential.1 See also Fourteenth Report2.

1. See Order 5, rule 19A (proposed).

2. 14th Report, Vol. I.

Order V, rule 26

Order V, rule 26 contains two types of provisions for service of a summons intended for a defendant residing outside the territories to which the Code extends. Under the first type, it can be sent for service to a Political Agent appointed by the Central Government in exercise of foreign jurisdiction or to a court established or continued in the exercise of such jurisdiction. Under the second, where the State Government has, in respect of any court situate in any such territory, and not established or continued in the exercise of such jurisdiction, declared that service by such court of a summons issued under this Code, shall be deemed to be valid service, a summons can be sent to such court.

It is considered that in the second case, the notification should be issued by the Central Government, and not by the State Government. Since external affairs are exclusively in the charge of the Central Government, and since the corresponding section for summonses received from countries outside India-section 29-now leaves the power to issue notification under the section to the Central Government, it is proper that the power under Order 5, rule 26 should also be vested in the Central Government.1-2

Secondly, it would appear that the intention of Government is, that a provision should be made for the transmission of summonses under this rule (in both cases) through diplomatic channels3.

Necessary change has been proposed.

1. In Order 5, rule 26 as enacted in 1908, the power was with the Governor-General in Council. In the adaptation made in 1937, the power was transferred to the State Government, on the ground that the matter fell within the topic of "administration of justice".

2. This is also the suggestion received from the Government; see Ministry of Law, Legal Affairs Deptt. File No. 12(3)-62, J.

3. See correspondence in Ministry of Law, Legal Affairs Department, File No. 12(3)/62, J, which was forwarded to the Law Commission for its consideration.

Order V, rule 26A (New)

1. This rule is new, and inserts an additional provision dealing with service of summonses meant for defendants residing outside India. There are two rules which exist at present on the subject, namely, Order V, rule 25, under which the summons can be sent by registered post direct to the defendant (subject to the proviso relating to Pakistan), and Order V, rule 26, under which, in certain cases, the summonses can be sent to a Political Agent or court specified in the rule or in the notification issued thereunder. These provisions do not, however, provide for cases where it is intended that the summons should be served through diplomatic channels and sent to an officer of the foreign country. A provision authorising such a course has been suggested by the Government1. The provision, as drafted, is intended to implement this suggestion. Reference may be made in this connection to the local Amendments made in Order V, rule 26 by the High Courts of Madras and Kerala, though they are not so comprehensive as the proposed provision.

2. Certain points of detail2 may be discussed.

(a) The proposed new rule will not alter the existing practice of sending summonses to the Political Agent or courts (Order V, rule 26).

(b) The transmission of documents under the new rule, will be either through the External Affairs Ministry or in such other manner as the Central Government may notify.

(c) It is expected that the documents will be sent in a language with which the authorities in the foreign countries will be familiar, but it is considered unnecessary to make such a provision in the Code of Civil Procedure3.

3. One point of importance may be noted. Order V, rule 26 authorises a presumption of service when the endorsement by the court, etc., is to the effect that the summons has been served on the defendant "in manner herein before directed". This seems to contemplate service in accordance with the provisions of the Civil Procedure Code. But, in respect of the proposed new rule, it is considered sufficient to provide that a certificate of service by the officer of the foreign country concerned shall be evidence of service. It would not be convenient to adopt the provision in rule 26 in such cases.

4. Order V, rule 26, as originally enacted in 1908, is quoted below:-

"26. Service in foreign territory through Political Agent or Court.-Where

(a) in the exercise of any foreign jurisdiction vested in His Majesty or in the Governor-General in Council, a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons issued by a Court under this Code in any foreign territory in which the defendant resides, or

(b) the Governor-General in Council has, by notification in the Gazette of India, declared that any summons so issued may be served by any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid,

the summons may be sent to such Political Agent or Court, by post or otherwise, for the purpose of being served upon the defendant; and, if the Political Agent or Court returns the summons with an endorsement signed by such Political Agent or by the Judge or other officer of the Court that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.".

5. The Adaptation of Indian Laws Order, 1937 substituted "Provincial Government" in clause (b)-now State Government.

6. The provisions corresponding to Order V, rule 26 in the earlier Acts are quoted below:-

Code of Civil Procedure (10 of 1877) (Sections 90 and 92) (now Order V, rule 26)

"90. Service through British Resident or Agent of Government.-If there be a British Resident or Agent of Government in or for the territory in which the defendant resides, the summons may be sent to such Resident or Agent, by post or otherwise, for the purpose of being served upon the defendant; and if the Resident or Agent returns the summons with an endorsement under his hand that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be conclusive evidence of the service.

92. Mode of sending such letter.-When a letter is so substituted for a summons, it may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; unless the defendant has an agent empowered to accept service of summons, in which case the letter may be delivered or sent to such agent.".

Section 90 of Act 14 of 1882 (now Order V, rule 26)

"90. Service through British Resident or Agent of Government.-If there be a British Resident or Agent of Government in or for the territory in which the defendant resides, the summons may be sent to such Resident or Agent, by post or otherwise for the purpose of being served upon the defendant; and if the Resident or Agent returns the summons with an endorsement under his hand that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be conclusive evidence of the service.

Section 90 of Act 14 of 1882 as amended by section 12 of Act 7 of 1888 (now Order V, rule 26)

"90. Service in foreign territory through British Resident or court.-If there is a British Resident or Agent, or a Superintendent appointed by the British Government, or a Court established or continued by the authority of the Governor-General in Council, in or for the territory in which the defendant resides, the summons may be sent to such Resident, Agent, Superintendent or Court, by post or otherwise for the purpose of being served upon the defendant; and if the Resident, Agent or Superintendent or the Judge of the Court returns the summons with an endorsement under his hand that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be evidence of the service.".

7. The reason for the 1888 Amendment (Act 7 of 1888) appears from the following remarks of the Select Committee, namely:-

"The section will admit of summonses being sent for service to Superintendents of foreign States, and to Courts established or continued by the authority of the Governor-General in Council in foreign territory, as well as to British Residents and Agents.".

The 1882 Act was revised and in the draft prepared in 1900 (which became the present Order V, rule 26), emphasis was laid on one ingredient, namely, that the officers and courts must be those who possess powers to serve a summons in the foreign territories, and that the summons should not be sent for service to an officer who had no such power.

8. As to service by the ordinary mode, Order V, rule 18 requires the serving officer to make a return as to service and the person identifying (if any)4

Without examining the peon, or proving his report, the report would not be evidence.5 An affidavit of the process-server would be evidence, but where a defendant denies that he was absent from the house (service having been effected by affixture), the process-server should, it has been held, be put in the witness box for cross-examination.6

1. Suggestion in Ministry of Law, Department of Legal Affairs, Judicial Section, File No. F. 12(3)/62, J., which is in substitution of the previous suggestion under Order 5, rule 25, contained in File No. F. 17(5)/58, J.

2. Those points arise from Ministry of Law, Legal Affairs Department, File No. F. 12(3)/ 62, J.-noting as well as correspondence.

3. This can be conveniently dealt with by rules made by the High Courts for civil courts.

4. As to Order 5, rule 18, see Nagendra v. Sambu, AIR 1923 Pat 114 (DB).

5. Sarad Prosad v. Krishna Dome, AIR 1926 Cal 539 (540) (Cuming and Chakravarti P.). (Case of service of notice under Order 21, rule 22.)

6. Basappa v. Hansaji, AIR 1936 Mad 660 (661) (Wadsworth J.).

Order VI, rule 2

The rule has been slightly re-drafted, to provide that each allegation should be contained in a separate paragraph in the pleadings.1

1. Cf. Order 18, rule 6(2), RSC Revision (1962).



Code of Civil Procedure, 1908 Back




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