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Report No. 54

Chapter 5

Issue and Service of Summons


5.1. When the plaint has been registered, a summons may be issued to the defendant, or to each defendant where there are more defendants than one. It is for the court to decide whether the summons shall be for the settlement of issues only, or for the final disposal of the suit. Elaborate provisions as to the mode of service of summonses are contained in the various rules of Order 5, the object being to make sure, as far as possible, that the summons comes to the knowledge of the defendant.

5.2. Since a considerable proportion of suits are decided ex parte owing to the defendant's failure to appear, the importance of these rules is obvious. Rules as to the effect of appearance and non-appearance of the defendant are separately provided for in Order 9 (which also deals with the consequences of non-appearance of the parties). Most of the rules in Order 5 relate to ministerial acts. We shall discuss only a few rules of importance.

Order 5, rule 15

5.3. Where, in any suit, the defendant cannot be found, service of the summons can be made on any adult male member of the family of the defendant who resides with him, under Order 5, rule 15. In the earlier Report,1 the previous Commission noted that the word "male" had been omitted by local amendment in Kerala. The previous Commission, however, thought that the amendment may not be suitable for adoption for the whole of India.

1. 27th Report, note on Order 5, rule 15.


5.4. We have considered the matter again, and are of the view that the word "male" should be dropped. Having regard to the increase in literacy and status of women during the last few years, this change could safely be made, for the whole of India. We, therefore, recommend that in Order 5, rule 15, the word "male" should be dropped.

Order 5, rule 20(1)

5.5. Order 5, rule 20 deals with "Substituted service". The rule provides that such service can (besides affixation of the summons) be ordered in such other manner as the Court may direct. The usual mode of service ordered is by publication in the newspaper. We considered the question whether, besides publication in the newspaper, the court should have power to direct that the substance of the summons should be read out by means of announcement on the radio. But, on inquiry being made from the Department concerned, we understand that, that would not be feasible.

5.6. We, therefore, recommend no change in this respect.

Postal Service

5.7. A recommendation for service of summons by post alongwith personal service has been made in the earlier Report,1 and we wish to record that we are in full agreement with it.

1. 27th Report, note on Order 5, rule 19.

The Code of Civil Procedure, 1908 Back

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