Report No. 163
(ii) Proposed substitution of rule 9:
2.13.2. The proposed substitution of rule 9 provides for sending the summons to the defendant, by other supplementary means presently not specified in sub-rule (1) of rule 9. The existing sub-rule also places the duty of serving the summons upon the plaintiff.
Sub-rule (1) says that "The Court shall issue summons and deliver the same to the plaintiff or his agent for service While there was a general welcome to the proposed sub-rule (1), which seeks to take advantage of the new and modern methods of communication like speed post, courier service, fax and E-mail, there was uniform opposition, both from the members of the Bar and Bench, to the proposal to deliver the summons to plaintiff for being served upon the defendant.
It was submitted that the summons should be sent in any of the modes specified in sub-rule (1) to rule 9 by the court itself, though at the expense of the plaintiff. An apprehension was expressed by many participants that delivery of summons to the plaintiff for service upon defendant may provide room for mischief and fraud.
The Law Commission agrees with the same and accordingly recommends that while sub-rule (1) of rule 9, as proposed, may be adopted the words in the said sub-rule which provide for delivering the summons to the plaintiff or his agent for service upon the defendant should be deleted and the service of summons in any of the modes specified by the Code should be by the court itself, no doubt at the expense of the plaintiff.
2.13.3. So far as sub-rule (2) of new rule 9 is concerned, it also requires to be amended in the same terms. In other words, sending of summons through court in the traditional mode shall be by the Court itself and not through plaintiff. It was suggested that the sub-rule may stipulate that the office/Registry of the Court shall send the summons within seven days of the filing of the summons with requisite charges by the plaintiff.
2.13.4. It was also suggested by some of the respondents/participants that sub-rule (3) must provide further that where endorsement was made by a postal employee or any authorised person that the defendant or his agent had refused to take delivery of the postal article containing the summons or refused to accept the summons by any other modes specified in sub-rule (1), the Court shall, before declaring that the summons had been duly served upon the defendant or his agent, make an appropriate enquiry and make such declaration only on being satisfied that the endorsement was true.
For this purpose, the court should be empowered to summon the postal employee or other authorised person and to record his statement on oath wherever called for. The Commission in its 140th Report, para. 6.1 observed that we cannot overlook the fairly large number of reported cases in which injustice might have resulted by reason of a fraud practised with the help of a dishonest postman or lapse in tendering the article to a wrong person. In view of this, the Law Commission agrees with this suggestion.