Issue and Service of Summons (Order V)

Order V of the Code of Civil Procedure, 1908 regulates the procedural step that immediately follows institution of a suit under Section 26 and Order IV — the issue of summons to the defendant and the manner of service. Rule 1 fixes the substantive obligation: when a suit has been duly instituted, a summons shall be issued to the defendant to appear and to file the written statement of his defence, ordinarily within thirty days from the date of service. Rules 2 to 8 deal with the form and content of the summons. Rules 9 to 30 govern the modes of service — personal, postal, courier, electronic, on agents and family members, by affixation, and by substituted service through court-house notice and newspaper publication.

The chapter must be read alongside Section 27, which fixes the outer time-frame of thirty days from institution for the issue of summons. The Supreme Court's decisions in the Salem Advocate Bar Association trilogy have settled most of the doctrinal questions arising from the 1999 and 2002 amendments — including the validity of service by courier, the effect of registered-post refusal, and the scope of the court's discretion to extend time for filing the written statement. The Order V machinery also feeds into the questions of jurisdiction of civil courts under Section 9, since invalid service can vitiate even a decree passed by a court of unimpeachable jurisdiction, and into forum-selection rules under Sections 15 to 21, which determine where the summons must travel.

Scheme of Order V

Order V is structured in three blocks. Rules 1 to 8 deal with the issue of summons — when it must be issued, who signs and seals it, what it must order the defendant to do, and what documents it must be accompanied by. Rules 9 to 19 set out the modes of service in the ordinary course — delivery to the defendant or his agent, postal and electronic transmission, service on adult family members, service by affixation, and the verification protocol. Rule 20 carves out the exceptional mode of substituted service. Rules 21 to 30 deal with service across States, on civil and military personnel, on prisoners, on public officers and corporations, and the duty of the receiving court to return proof of service.

Rule 1 — when a summons must issue

Rule 1(1) provides that when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service. The first proviso permits the court to dispense with summons where the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim. The second proviso allows the court, for reasons recorded in writing, to extend the time for filing the written statement up to ninety days from the date of service. For commercial disputes of a specified value, that outer limit is one hundred and twenty days, beyond which the right to file is forfeited.

Sub-rule (2) lists the modes by which a defendant to whom a summons has been issued may appear: in person, by a duly instructed pleader, or by a pleader accompanied by a person able to answer all material questions relating to the suit. Sub-rule (3) requires every summons to be signed by the judge or such officer as he appoints, and to be sealed with the seal of the court.

Mandatory or directory?

The Karnataka High Court in AV Purushottam v NK Nagaraj, AIR 2003 Kar 121, held that despite the use of the word "shall" in Order V Rule 1 and Order VIII Rules 1, 8 and 9, the time-limit is not mandatory in the strict sense — no penal consequence is provided for non-filing within the stipulated period. The object is to expedite hearings and avoid adjournments. The Supreme Court in Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344 (Salem-II), gave a similar reading: the time-limit can be extended by the court in the interests of justice, and where mediation under Section 89 is being explored, the court may, in its inherent jurisdiction, extend time to allow settlement (Sukhdeo Singh Gambhir v Amrit Pal Singh, AIR 2003 SC 4642).

Rules 2 to 8 — form and content of the summons

Rule 2 requires every summons to be accompanied by a copy of the plaint. Without that copy, the summons is not validly served (Suresh Chandra v Gosaidas, AIR 1976 SC 2521; Laxmibai v Keshrimal Jain, AIR 1995 MP 32). After the 2002 amendments, a concise statement of the plaint is no longer sufficient — the actual plaint copy must accompany the summons.

Rule 3 empowers the court to order the personal appearance of the defendant or the plaintiff. Rule 4 confines the power to require personal appearance — it cannot be ordered against a party who resides outside the local limits of the court's ordinary original jurisdiction unless the residence is within fifty miles, or two hundred miles where there is railway, steamer, or established public conveyance for five-sixths of the distance. Rule 5 requires the court to determine, at the time of issuing summons, whether it is for the settlement of issues only or for the final disposal of the suit; the proviso requires summonses in Small Causes Courts and similar fora to be for final disposal in every case.

Rule 6 requires the day of appearance to be fixed with reference to the current business of the court, the place of residence of the defendant, and the time necessary for service. Rule 7 directs the summons to require the defendant to produce all documents in his possession or power upon which he intends to rely in support of his defence — the rule is read with Order VIII Rule 1A and dovetails with discovery and inspection under Order XI. Rule 8 directs the defendant, where the summons is for final disposal, to produce all witnesses on whose evidence he intends to rely on the day fixed for his appearance — a discipline also reflected in the rules on summoning and attendance of witnesses under Order XVI.

Rule 9 — delivery and modes of service

Rule 9, as amended by the Code of Civil Procedure (Amendment) Acts of 1999 and 2002, recognises a wide range of service modes. Where the defendant resides within the jurisdiction of the issuing court, the summons may be delivered to a proper officer for service or to an approved courier service. Service may also be effected by registered post acknowledgment due, by speed post, by approved courier, or by any other means provided by High Court rules — including fax message and electronic mail. Service is at the expense of the plaintiff.

Sub-rule (5) permits the court to declare that summons has been duly served where the acknowledgment is signed and returned, or where the postal article is returned with an endorsement of refusal. The proviso fills the practical gap: if the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the court may declare due service even if the acknowledgment is lost or has not returned within thirty days.

The Supreme Court in Salem Advocate Bar Association v Union of India, AIR 2005 SC 3353, held that there can be no valid objection to service through courier and directed High Courts to make appropriate rules to prevent abuse through false endorsements. The Court has consistently treated service by registered post and approved courier as substantively equivalent to personal service.

Rule 9A — Dasti service through the plaintiff

Rule 9A permits the court to deliver the summons to the plaintiff for personal service on the defendant — colloquially known as Dasti service. This is in addition to ordinary court service and not a substitute for it. The plaintiff effects service by delivering or tendering a copy signed by the judge and sealed with the court's seal, or by any of the modes permitted under Rule 9(3). If service by Dasti fails, the court re-issues the summons for service in the ordinary course on the application of the plaintiff.

Rules 10 to 16 — personal service and acknowledgment

Rule 10 prescribes the basic mode: service is made by delivering or tendering a copy of the summons signed by the judge and sealed with the seal of the court. Rule 11 requires service on each defendant where there is more than one — a discipline that interlocks with the joinder rules in Order I. Rule 12 prescribes service on the defendant in person wherever practicable, and only on an empowered agent when the defendant is unavailable.

Rule 13 deals with service on the manager or agent personally carrying on the defendant's business or work where the defendant is outside the local limits — service on a mere clerk or commission agent is insufficient (Goculdas v Ganeshlal, (1880) ILR 5 Bom 88). Rule 14 governs service on the agent in charge of immovable property. Rule 15, as amended in 1976, permits service on any adult member of the defendant's family — male or female — residing with him, when the defendant is absent from his residence and there is no likelihood of his being found within a reasonable time. The Explanation excludes a servant from the family. The amendment substantially adopts the earlier Calcutta amendment and replaced the vague "cannot be found" with the more workable "absent from residence" test.

Rule 16 obliges the serving officer to obtain the signature of the person to whom the summons is delivered as acknowledgment of service. A mere refusal to sign the acknowledgment is not, by itself, an offence under the Penal Code (Queen Empress v Krishna, (1893) ILR 17 Mad 50), but it triggers the affixation procedure under Rule 17.

Rule 17 — refusal and affixation

Rule 17 prescribes the procedure where the defendant or his agent refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant. The serving officer must affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain. The original is then returned to the court with a report stating that the copy has been affixed, the circumstances under which it was done, and the name and address of the person who identified the house and witnessed the affixation.

The duty of "due and reasonable diligence" is real. The Karnataka High Court in Yallawwa v Shantavva, (1997) 11 SCC 159, found service defective where the process server made no effort to find out when the defendant would be available, did not mention who identified the house, and recorded no useful particulars — the deficiencies were not mere irregularities but failures of compliance. The Madras High Court in Eravi Pillai v Maluk Mohammad, 1953 (II) MLJ 478, held that service on a male relative of a defendant is not valid unless the conditions of Rule 15 are satisfied; the Calcutta High Court in Labanga Dibya v Prahlad Patri, 1960 (I) Cal 412, held the same for a separate adult male outside the joint family.

If the defendant accepts the copy and merely refuses to sign the acknowledgment, the position is more nuanced. Some High Courts have held that affixation is mandatory in addition; others have treated retention of the copy as substantial compliance (Nageshwar v Biseswar (1924) and MR Ved v SB Hayeem, AIR 1943 Bom 39).

Rules 18 and 19 — endorsement and verification

Rule 18 requires the serving officer to endorse on the original summons the time and manner of service, and the name and address of the person identifying the person served. Rule 19 requires the court, where a return is made under Rule 17, to examine the serving officer on oath if the return has not been verified by affidavit, and to make further inquiry as it thinks fit before declaring whether the summons has been duly served. The Madhya Pradesh High Court in Vishwa Nath Bogar v Gyarsilal Agrawalla, AIR 2004 MP 32, treated the acceptance of a service report under this rule as a serious judicial act, not a mere formality.

Rule 20 — substituted service

Rule 20 is the exceptional mode. The court may order substituted service only if it is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. The court may direct affixation of a copy in some conspicuous place in the court-house and on the defendant's last known residence or place of business, or in such other manner as the court thinks fit, including publication in a daily newspaper circulating in the locality where the defendant last actually resided.

Sub-rule (3) makes substituted service "as effectual as if it had been made on the defendant personally" — a deeming clause that simplifies what would otherwise be a difficult question of due notice. Sub-rule (4) requires the court to fix such time for the appearance of the defendant as the case may require.

The Supreme Court in Neerja Realtors (P) Ltd v Janglu, (2018) 2 SCC 649, set out the procedural discipline. Substituted service is an exception to the normal mode. Before resorting to it, the bailiff must follow the Rule 17 affixation procedure and report compliance; only then can an application under Rule 20 be entertained. The court must independently satisfy itself that the defendant is deliberately avoiding service or that ordinary service is impossible. Mere assertion by the plaintiff is insufficient (Teharoochund v Surajmull Nagarmull, AIR 1984 Cal 145).

The defendant retains the right to show, even after substituted service, that he had no actual knowledge of the proceedings — sub-rule (3) deems the service effectual for going forward, but does not foreclose the question of due notice for purposes of setting aside an ex parte decree under Order IX Rule 13. The Andhra Pradesh High Court in Shanmukhi v Venkatarami Reddy, AIR 1957 AP 956, treated substituted service as due service only when all conditions in the rule were established and notice had effectively been brought home.

Newspaper publication — qualitative requirements

Sub-rule (1A) requires that where service is ordered by advertisement, the newspaper be a daily circulating in the locality in which the defendant is last known to have actually resided. The Karnataka High Court in Venkatesh v P Subbaiah, 2008 (4) Kar LJ 215, treated "daily newspaper" as meaning a paper of repute, published as a morning edition with general acceptance — courts should not allow publication in obscure papers chosen merely for cost.

Rules 21 to 30 — service across States, on special parties, foreign service

Rules 21 to 26 govern service through other courts where the defendant resides outside the issuing court's jurisdiction. Rule 21 provides for the transmission of the summons to a court within whose jurisdiction the defendant resides, which then serves the summons as if it had been issued by that court. Rule 22 covers service in another State. Rules 23 and 24 deal with the language of the summons and the procedure to be followed by the serving court. Rules 25 and 26 set out the rules for foreign service — the latter dealing with service of summons in foreign territory through the Central Government's diplomatic channels, where reciprocity exists.

Rule 27 deals with service on a civil public officer or a railway servant — through the head of the office, who is required to deliver the summons. Rule 28 deals with service on soldiers, sailors and airmen — through the commanding officer. Rule 29 governs duty of the court to which a summons is sent for service — the receiving court must promptly serve and return the record. Rule 30 makes substituted service available in all the situations covered by Rules 21 to 29 if ordinary service fails.

Effect of defective or non-service

Service of summons is the procedural foundation of an adversarial proceeding. The Supreme Court in Sushil Kumar Sabbarwal v Gurpreet Singh, AIR 2002 SC 2370, held that proof of service is a precondition without which the court cannot proceed ex parte; an ex parte decree where the plaintiff has not satisfied the court of proper service is liable to be set aside under Order IX Rule 13. Mere knowledge of the suit, in the absence of service, is immaterial (Bhomshetti v Umabai, ILR 21 Bom 223).

Defective service has several consequences. An ex parte decree passed without due service is a nullity (Madhusudana v Arabinda, AIR 1978 Ori 144). Where summons is sent to the wrong defendant by name, the decree is liable to be set aside even where the application is technically time-barred — sufficient grounds exist for condonation. The error also implicates the drafting discipline of Order VII, which requires the plaintiff to identify defendants accurately in the cause-title. Where the defendant residing within the jurisdiction is sent summons by registered post and the cover is returned with an endorsement of refusal, the presumption under Rule 9(5) operates only if the postal receipt and the address are on record (Najeebunnisa v Mohammad Mahboob Ali Khan, 2007 (4) ALT 234).

Distinguish — ordinary service from substituted service

Ordinary service (Rules 9 to 19). The rule. Personal delivery, registered post, courier, electronic transmission, service on agent or family member, affixation under Rule 17 if refused or if the defendant cannot be found.

Substituted service (Rule 20). The exception. Court-ordered service by court-house affixation and newspaper publication where the defendant is keeping out of the way or where ordinary service is impossible. Deemed effectual under sub-rule (3).

Service on agent (Rule 12 / Rule 13). Allowed only where the agent is empowered to accept service — mere oral authorisation or service on a clerk is insufficient (CW Nataraj v IT Officer, AIR 1965 Kar 31; Pravinchandra v Murli Agro Products Ltd, 2005 Bom 245).

Service through plaintiff (Rule 9A — Dasti). An additional mode at the court's discretion, on application of the plaintiff. Re-issued through the court if it fails.

Leading authorities — quick reference

• Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344 — courier service is valid; the time-limit for written statements is directory; courts retain discretion to extend.
• Neerja Realtors (P) Ltd v Janglu, (2018) 2 SCC 649 — Rule 20 substituted service is an exception; bailiff must first comply with Rule 17 affixation; court must independently satisfy itself.
• Sushil Kumar Sabbarwal v Gurpreet Singh, AIR 2002 SC 2370 — service is a precondition for ex parte proceedings; defective service vitiates the decree.
• Yallawwa v Shantavva, (1997) 11 SCC 159 — "due and reasonable diligence" under Rule 17 is a substantive requirement; cursory effort by the process-server is non-compliance.
• Madhusudana v Arabinda, AIR 1978 Ori 144 — an ex parte decree based on misnamed summons without copy of plaint is a nullity.
• Hari Gopal v Vijay Kumar, 2007 (5) ALT 1 — the presumption of service under Rule 9(5) arises once a registered cover is duly sent and the acknowledgment has not returned within thirty days.

MCQ angle

1. Time to file the written statement. Thirty days from service ordinarily, extendable to ninety days for reasons recorded in writing under the second proviso to Rule 1; one hundred and twenty days as a hard outer limit for commercial disputes of specified value, beyond which the right is forfeited.
2. Modes of service under Rule 9. Court process server, registered post acknowledgment due, speed post, approved courier, fax, electronic mail, and Dasti service through the plaintiff under Rule 9A.
3. Rule 17 affixation. Triggered on refusal of acknowledgment or on the serving officer's inability to find the defendant after due and reasonable diligence; the affixation must be on the outer door or conspicuous part of the residence, business, or workplace.
4. Rule 20 substituted service. An exception requiring court satisfaction that the defendant is keeping out of the way or that ordinary service is impossible. Deemed effectual under sub-rule (3) but does not foreclose the no-actual-notice defence under Order IX Rule 13.
5. Service on family member under Rule 15. Permissible on any adult member, male or female, residing with the defendant, where the defendant is absent and unlikely to be found within reasonable time. A servant is not a family member.

Order V is the procedural artery between the institution of a suit and the commencement of trial. Get the service right and the suit moves; get it wrong and the decree is exposed to challenge under Order IX Rule 13. The MCQ patterns that recur — registered-post refusal, the Rule 17 versus Rule 20 distinction, the deeming clause in Rule 20(3) — all reward a precise reading of the text. The chapter sits naturally before Order IX on appearance and default procedure and integrates with Order VIII on the written statement.

Frequently asked questions

Is the thirty-day limit for filing the written statement under Order V Rule 1 mandatory?

No — it is directory in ordinary suits. The Karnataka High Court in AV Purushottam v NK Nagaraj, AIR 2003 Kar 121, held that despite the use of 'shall', no penal consequence is attached to non-filing within thirty days. The Supreme Court in Salem Advocate Bar Association v Union of India, (2005) 6 SCC 344, allowed extension up to ninety days for reasons recorded in writing, and beyond that in the inherent jurisdiction of the court where mediation under Section 89 is being explored. For commercial disputes of specified value, however, one hundred and twenty days is a hard outer limit beyond which the right to file is forfeited.

Is service of summons by courier valid under Order V Rule 9?

Yes. The Code of Civil Procedure (Amendment) Acts of 1999 and 2002 inserted approved courier services as a recognised mode of delivery under Rule 9. The Supreme Court in Salem Advocate Bar Association v Union of India, AIR 2005 SC 3353, expressly upheld the validity of courier service and directed High Courts to prepare panels of approved couriers and to prescribe safeguards against abuse through false endorsements. Sub-rule (5) treats refusal endorsements by the courier as equivalent to refusal endorsements by a postal employee.

What is the difference between affixation under Rule 17 and substituted service under Rule 20?

Rule 17 affixation is automatic — the serving officer affixes a copy on the outer door of the defendant's house when the defendant refuses to sign or cannot be found after due and reasonable diligence; no order of the court is required. Rule 20 substituted service is an exceptional, court-ordered mode applied where the defendant is keeping out of the way or ordinary service is impossible, and may include affixation in the court-house and publication in a newspaper. The Supreme Court in Neerja Realtors (P) Ltd v Janglu, (2018) 2 SCC 649, held that Rule 17 must be exhausted first; only then can a Rule 20 application be entertained.

Can a summons be served on an adult female member of the defendant's family?

Yes, after the 1976 amendment to Order V Rule 15. The pre-1976 rule confined service to adult male members; the amendment substantially adopted the Calcutta amendment and now permits service on any adult member, male or female, residing with the defendant, when the defendant is absent and unlikely to be found within reasonable time. The Explanation excludes a servant from the meaning of 'family'. Service on a son who is not a major is invalid (BDB Prasad v Bank of India, AIR 1995 Pat 12), as is service on a husband of the defendant unless the conditions of the rule are otherwise satisfied.

Does substituted service under Rule 20 prevent the defendant from later challenging the ex parte decree?

No. Sub-rule (3) deems substituted service as effectual as personal service for going forward with the proceedings, but it does not foreclose the defendant's right to apply under Order IX Rule 13 to set aside an ex parte decree on the ground that he had no actual knowledge of the suit. The Andhra Pradesh High Court in Shanmukhi v Venkatarami Reddy, AIR 1957 AP 956, held that substituted service is due service only when the conditions in Rule 20 are established, and the defendant remains free to demonstrate that notice was not in fact brought home to him.

What is Dasti service under Order V Rule 9A?

Dasti service is service of summons effected by the plaintiff personally on the defendant, with the court's permission. Under Rule 9A, on the plaintiff's application the court may deliver the summons to the plaintiff for personal service in addition to ordinary court service. The plaintiff effects service by tendering a signed and sealed copy or by any of the modes in Rule 9(3) — registered post, courier, fax, e-mail. If service fails or is refused, the court re-issues the summons for ordinary court service on the plaintiff's application. Rule 9A is an additional mode, not a substitute for the court's ordinary service machinery.