Order v CPC: Significance of the process of summoning the defendant

Last month I had the opportunity to go through a brief of a civil suit which was decreed by a civil court through an ex-parte judgment. The defendant, who sought reversal of the said judgment, had failed to convince the courts, including the High Court, that he was not duly served and that the decree had been passed without following due process, resulting in failure of justice.

It was disappointing to notice that from the trial court up till the High Court, neither the judges nor the lawyers of the losing party bothered to find out whether the process of serving summons to the defendant had been complied with or not. And if there is non-compliance of relevant provisions of the Code of Civil Procedure 1908 (CPC), whether the ex-parte decree would still stand or would lose any legal value it holds. In this article, I shall try to answer these questions which are imperative to the administration of our justice system.

As per section 27 of the CPC, if the suit is properly instituted then the court may issue summons to the defendant to appear and answer the claim in the manner as prescribed. The relevant provisions as prescribed by the competent authority for summoning of defendant are available in Order V of the First Schedule of CPC which is titled as “Issue and service of summons”.

Summons on a duly instituted suit
Rule 1 of the Order V talks about the issuance of summons on a “duly instituted suit”. This expression imposes a duty on the court to ascertain the validity of the institution of the case, before issuing the summons. In my experience, usually, the Judges don’t even bother to go through the contents of the plaint before ordering the issuance of summons. The question of the suit being properly filed never arises. The first thing which lawyers should take care of before presenting the plaint in the court is that there should not be such a defect in their suit which may render it invalidly instituted. It is an obligation of the judge to satisfy himself regarding the institution of the case and in case of there being a defect in such a case, the plaintiff should be directed to remedy this.

Summons should be accompanied by the plaint
Rule 2 requires that summons in the name of defendant must be accompanied by the plaint or, if the court so permits, by a concise statement. This requirement is also not complied with in most of the cases. In my view, which is also supported by a judgment of the honourable Lahore High Court, the judge issuing the summons should also issue explicit directions to ensure that the summons are issued with a copy of the plaint.

Form of summons
The next provision which is relevant to the discussion is rule 5 which is being ignored and violated with impunity by every court, which is reproduced as under for ready reference:

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.”

The mentioned rule mandates the court to determine, before the issuance of summons, whether the summons will be issued for settlement of issues only or for the disposal of the suit. In my 15 years of practice, I have not seen a single order by any civil judge specifically requesting the determination of the type of the summons issued. In many cases the summons are issued for the final disposal of the case rather than for the settlement of issues which is an illegality and can nullify the subsequent proceeding of the suit.

Another question which needs to be addressed before proceeding further is why there are no provisions summoning the defendant to be present physically or to file a written statement. It is also hard to understand how summons for the settlement of issues can be issued without first requiring the defendant to file a written statement. The key to resolve these confusions lies in rule 7 & Form No. 2 of Appendix B of First Schedule of CPC. Form No. 2 is reproduced as under:

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

(Title)

To,

[Name, description and place of residence.]

    WHEREAS_____________________________________________________________

has instituted a suit against you for ______  you are hereby summoned to appear in this Court in person or by a pleader duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions, on the day of day of 19___, at  o’clock in the _______ noon, to answer the claim ; 6[and further you are hereby directed to file on that day a written statement of your defence and to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counter-claim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim, you shall enter such documents in a list to be annexed to the written statement].

    Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence.

    GIVEN under my hand and the seal of the Court, this _______ day of _____19____ .

Judge.

The language employed in the summons is simple enough to understand that under the scheme of the Code, on or before the date mentioned in the summons for settlement of issues, the defendant is bound to submit a written statement, produce all the documents in his possession upon which he bases his defence, claims, set-off or counter claim. In the light of the above discussion we may conveniently conclude that the judge, if he fails to determine which summons should have been issued or issues wrong summons in the facts and circumstances of the case, would commit an illegality and a material irregularity.

Service of summons
After issuance of summons by the court the next stage is the service of summons to the defendant. Rules 9 to 16 deal with the manner in which the service of summons may be made. Rule 9 states that summons should be served by the proper officer or his subordinate. Rule 10 prescribes the mode of service viz. by delivering or tendering of duly signed and sealed summons.

Service by post
As per rule 10-A, at the time of issuing the summons under rule No. 9, another copy of the summons shall be sent to the defendant through registered post, acknowledgement due. This provision is also not being complied with in almost all the cases as in practice only summons are sent through registered post but acknowledgement due cards do not accompany the post and due to this defect the whole exercise of service through registered post loses its legal value. Sub-rule (2) of rule 10-A has categorically mentioned that only the signature of defendant on the acknowledgement or endorsement thereon by the postman regarding refusal of defendant to take the summons shall be prima facie proof of service and not otherwise. So summons which have been sent through registered post but remain without acknowledgement would not carry presumption of service to defendant.

Service should be made in person
Rule 12 requires that service of summons should be made in person or through authorised agent, however if the defendant cannot be found and also has no authorised agent then service of summons on an adult male member of defendant’s family would be considered as good service (rule 15).

Person served to sign acknowledgement
Under rule 16 the serving officer is bound to require the person to whom the summons are served, to sign the original summons as acknowledgement of receipt of delivery. As per rule 18 the serving officer who has served the summons would make an endorsement on the summons regarding the manner of service and then, under rule 9 (3) would return the summons to the court. If the service is affected under Rule 16, there is no legal requirement of further service of summons, but in practice usually the courts, in some cases, repeat the process of service or order for substituted service which is done by pasting the summons on the walls of the defendant’s house or by publishing them in the local newspaper, an exercise which is unnecessary and unjustified.

Substituted service
Rule 20 permits the court to only pass an order for substituted service when it comes to the conclusion that, either the defendant is purposely avoiding the service of summons or that the summons cannot be served in the ordinary manner. Rule 17 and 19 help the court in reaching either of these conclusions.

As per Rule 17, if the defendant or any other person liable to receive summons refuses them, or if the serving officer, despite exercise of due diligence, cannot find the defendant or his agent or person liable to accept summons, then he can affix the copy of summons on the house or place of work of the defendant and return the original summons to the court along with a detail of the circumstances in which the affixation of summons has been made. The court, after receipt of original summons along with the endorsement under rule 17, would be bound to satisfy itself regarding the veracity of the report of the serving officer. Rule 19 states that if the endorsement under Rule 17 is accompanied by an affidavit of serving officer then it may, after considering such affidavit, either declare that service has been duly effected or order such service as it will think fit. However, despite the affidavit of the officer the court may require such officer to appear in court and examine him under oath before passing any order regarding the service. But in case of non submission of affidavit by serving officer the court can neither pass the order of service, which includes substituted service, nor can it declare that service has been duly effected, unless it examines the serving officer under oath.

I think most of the lawyers would agree with me that before ordering substituted service, most courts do not follow the provisions of Rules 17 & 19 and the order for substituted service is made in a mechanical manner which renders the substituted service illegal.

The Supreme Court in in Syed Muhammad Anwar Advocate vs. Sheikh Abdul Haq (1985 SCMR 1228) provided guidelines for trial courts regarding the requirements for passing the order for substituted service. The Court held that:

“Under these provisions the service could be effected on the defendant personally, by the registered post, through his authorised agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in rule 17 that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house and shall then return the original to the Court from which it was issued, with the report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. It is clearly borne from the record that no resort to this ordinary way of service of the summons on the defendant, his agent (if any) or the male member of his family was at all made in this case. In these circumstances, the learned Senior Civil Judge on the 4th of February, 1947 was not justified in forming the opinion that no service on the defendant could be effected in the ordinary way. In his order dated 9-4-1978, the learned Senior Civil Judge while setting aside the ex parte decree though on some what different consideration, was of the opinion that there was no reason to conclude that the “summons could not be served on the defendant in the ordinary way” and, therefore, the substituted service effected on him was not justified in the circumstances of the case.”

Substituted service through publication in newspaper
Rule 20 has mentioned number of modes of substituted service but usually the courts orders substituted service through a publication in a newspaper. If we go through Rule 20 (1) (e) then it would become clear that law requires the publication of summons (as prescribed under Rule 5) in the newspaper but in not a single case in which order of substituted service is passed by a civil court will you find the publication of summons rather, in every case, a simple intimation about the pendency of suit in which the defendant is required to appear on a given date is issued. Such an intimation in no way may be construed as service of summons, therefore, legally speaking, initiation of ex parte proceeding after issuance of such an intimation cannot be considered as a valid proceeding.

Right of hearing and due process
The service of defendant in a civil suit intimating him about the claim of plaintiff and requiring him to answer the said claim, is not only a legal right but it is also, a fundamental right of every defendant, guaranteed under Articles 4 & 10-A of the Constitution.

Article 4 guarantees that every citizen will be treated in accordance with the law and the Supreme Court of Pakistan has held that the right to a hearing is the fundamental right of every citizen. Article 10-A has declared that every citizen will be entitled to fair trial and due process.
In my humble view, the court seized of a civil suit is bound under the above mentioned constitutional provisions to rigorously follow the provisions of Order V CPC and even a minor deviation which may result in ex parte proceeding and subsequent decree may result in deprivation of fundamental of the defendant.