Department of Law & Justice LL.B(Hons) ProgramCourse Title: Law of Civil Procedure – I Submitted To: Md. Asraful Islam (Assistant Professor) Dept. of Law & Justice Southeast University Submitted By: Md. Fuhad Kabir ID No: 2009020300061 17th – Batch, Section: B Date of Submission: 01-09-2012
Assignment On – “Summons ’’ (Under The Code of Civil Procedure, 1908)Introduction:
Summons to defendants:27. Where a suit has been duly instituted, a summons may be issued to the defendant to appearand answer the claim and may be served in manner prescribed.(The Civil Procedure, 1908)A court summons is a type of legal document. It is typically used to inform a defendant of thebeginning of a legal proceeding that requires his presence. It also lets the defendant know thatthe court has created a file for the case. This is intended not just to inform him, but also to allowhim to respond to the case filing and prepare for court. When a defendant receives a courtsummons, he usually finds several important pieces of information on it. He should find hisname and address on it, as well as the name and address of the opposing party, referred to as theplaintiff. If there is more than one defendant in the case, the other defendants’ names are usuallylisted as well. A court summons should include the name and address of the court in which thecase is to be heard, as well as the case or file number created for the proceedings. It usuallyprovides brief information about the case as well. If, for example, a furniture company is suing aclient for default on a furniture loan, the court summons will typically include the amount forwhich the furniture store is suing. It will also inform the defendant of when he should show up incourt or file a response in the case.Though the exact language included in a court summons may vary, these documents typicallyadvise the defendant to seek legal help in understanding and responding to the summons.Usually, a phone number is included, providing the defendant with a contact number for gettingmore information about the document. A summons may also include information about theconsequences of failing to show up in court or failing to respond as directed. For example, failureto attend a court hearing could lead to a default judgment in favor of the plaintiff. This means theplaintiff could win his case simply because the defendant did not show up or respond.Sometimes a court summons is used in criminal cases and is referred to as a criminal summons.This document typically includes information about the crime of which the defendant is accusedand an order directing him to appear in court. It will also detail where, when and at what time thedefendant is to appear. A criminal summons may also list penalties for failure to appear asordered. In some places, arrest warrants are issued for failure to appear in criminal court. Thepaper that tells a defendant that he or she is being sued and asserts the power of the court to hearand determine the case. A form of legal process that commands the defendant to appear beforethe court on a specific day and to answer the complaint made by the plaintiff. The summons isthe document that officially starts a lawsuit. It must be in a form prescribed by the law governingprocedure in the court involved, and it must be properly served on, or delivered to, the defendant.If the prescribed formalities are not observed, the court lacks authority to hear the dispute. In thefederal district courts, the summons is prepared by the attorney for the plaintiff and given to theclerk of the court where the case will be heard. When the plaintiffs complaint, setting out hisclaim, is filed with the court, the clerk signs the summons and gives it and a copy of thecomplaint to a U.S. marshal or to someone else appointed to serve the papers. Once the summonsand complaint are served on the defendant, she must respond to them within twenty days orwhatever other time the court allows.Some states follow this same procedure, but other states allow service of the summons andcomplaint by delivery directly to the defendant. In those states, the lawsuit is considered begun
as soon as the defendant receives the papers, even though nothing has yet been filed with a court.Actions commenced in this way are sometimes called "hip pocket" suits.Summons in Civil Procedure:Summons to defendants:27. Where a suit has been duly instituted, a summons may be issued to the defendant to appearand answer the claim and may be served in manner prescribed.(The Civil Procedure, 1908)Service of foreign summonses:29. Summonses and other processes issued by any Civil or Revenue Court situate outsideBangladesh may be sent to the Courts in Bangladesh and served as if they were summonsesissued by such Courts:Provided that the Government] has by notification in the official Gazette declared the provisionsof this section to apply to such Courts.Power to order discovery and the like:30. Subject to such conditions and limitations as may be prescribed, the Court may, at any time,either of its own motion or on the application of any party,-(a) make such orders as may be necessary or reasonable in all matters relating to the delivery andanswering of interrogatories, the admission of documents and facts, and the discovery,inspection, production, impounding and return of documents or other material objects producibleas evidence;(b) issue summonses to persons whose attendance is required either to give evidence or toproduce documents or such other objects as aforesaid;(c) order any fact to be proved by affidavit.Summons to witness:31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or toproduce documents or other material objects.Penalty for default:32. The Court may compel the attendance of any person to whom a summons has been issuedunder section 30 and for that purpose may-
(a) issue a warrant for his arrest;(b) attach and sell his property;(c) impose a fine upon him not exceeding five hundred Taka;(d) order him to furnish security for his appearance and in default commit him to the civil prison. The Process of Summons:Order – V: Issue and Service of SummonsRule 1 of Order –V: Summons.- (1) When a suit has been duly instituted, summons may beissued to the defendant to appear and answer the claim and to file the written statement of hisdefence, if any, within thirty day from the date of service of summons on that defendant:Provided that no such summons shall be issued when a defendant has appeared at thepresentation of plaint and admitted the plaintiff’s claim; Provided further that where thedefendant fails to file the written statement within the staid period of thirty day, he shall beallowed to file the same on such other days as may be specified by the Court, for reasons to berecorded in writing, but which shall not be later than ninety days from the date of service ofsummons.(2) A defendant to whom a summons has been issued under sub-rule (1) may appear— (a) inperson, or(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or(c) by pleader accompanied by some person able to answer all such questions.(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall besealed with the seal of the court.Rule -2: Copy of plaint annexed to summons.- Every summons shall be accompanied by acopy of the plaint.Rule -3: Court may order defendant or plaintiff to appear in person.- (1) Where the courtsees reason to require the personal appearance of the defendant, the summons shall order him toappear in person in court on the day therein specified.(2) Where the court sees reason to require the personal appearance of the plaintiff on the sameday, it shall make an order for such appearance.
Rule -5: Summons to be either to settle issues or for final disposal.- The court shalldetermine, at the time of issuing the summons, whether it shall be for the settlement of issuesonly, 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 finaldisposal of the suit.Rule -6: Fixing day for appearance of defendant.- The day under sub-rule (1) of rule 1 shallbe fixed with reference to the current business of the court; the place of residence of thedefendant and the time necessary for the service of the summons; and the day shall be so fixed asto allow the defendant sufficient time to enable him to appear and answer on such day.Rule-7: Summons to order defendant to produce documents relied on by him.- Thesummons to appear and answer shall order the defendant to produce all documents or copiesthereof specified in rule 1A of Order VIII in his possession or power upon which he intends torely in support of his case.Rule -8: On issue of summons for final disposal, defendant to be directed to produce hiswitnesses.- Where the summons is for the final disposal of the suit, it shall also direct thedefendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence heintends to rely in support of his case. Service of summons:Rule -9: Delivery of summons by Court.- (1) Where the defendant resides within thejurisdiction of the Court in which the suit is instituted, or has an agent resident within thatjurisdiction who is empowered to accept the service of the summons, the summons shall, unlessthe Court otherwise directs, be delivered or sent either to the proper officer to be served by himor one of his subordinates or to such courier services as are approved by the Court.(2) The proper officer may be an officer of a Court other than that in which the suit is instituted,and where he is such an officer, the summons may be sent to him in such manner as the Courtmay direct.(3) The services of summons may be made by delivering or transmitting a copy thereof byregistered post acknowledgment due, addressed to the defendant or his agent empowered toaccept the service or by speed post or by such courier services as are approved by the High Courtor by the Court referred to in sub-rule (1) or by any other means of transmission of documents(including fax message or electronic mail service) provided by the rules made by the High Court:Provided that the service of summons under this sub-rule shall be made at the expenses of theplaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides outside thejurisdiction of the court in which the suit is instituted, and the Court directs that the service ofsummons on that defendant may be made by such mode of service of summons as is referred toin sub-rule (3) (except by registered post acknowledgment due), the provisions of Rule 21 shallnot apply.(5) When an acknowledgment or any other receipt purporting to be signed by the defendant orhis agent is received by the Court or postal article containing the summons is received back bythe Court with an endorsement purporting to have been made by a postal employee or by anyperson authorised by the courier service to the effect that the defendant or his agent had refusedto take delivery of the postal article containing the summons or had refused to accept thesummons by any other means specified in sub-rule (3) when tendered or transmitted to him, ‘ -the Court issuing the summons shall declare that the summons had been duly served on thedefendant: Provided that where the summons was properly addressed, pre-paid and duly sent byregistered post acknowledgment due, the declaration referred to in this sub-rule shall be madenotwithstanding the fact the acknowledgment having been lost or mislaid, or for any otherreason, has not been received by the Court within thirty days from the date of issue of summons.(6) The High Court or the District Judge, as the case may be, shall prepare a panel of courieragencies for the purposes of sub-rule (1).Rule -9A. Summons given to the plaintiff for service.- (1) The Court may, in addition to theservice of summons under Rule 9,on the application of the plaintiff for the issue of a summonsfor the appearance of the defendant, permit such plaintiff to effect service of such summons onsuch defendant and shall, in such a case, deliver the summons to such plaintiff for service.(2) The service of such summons shall be effected to or on behalf of such plaintiff by deliveringor tendering to the defendant personally a copy thereof signed by the Judge or such officer of theCourt as he may appoint in this behalf and sealed with the seal of the Court or by such mode ofservice as is referred to in sub-rule (3) or rule 9.(3) The provisions of Rules 16 and 18 shall apply to a summons personally served under this ruleas if the person effecting service were a serving officer.(4) If such summons, when tendered, is refused or it the person served refuses to sign anacknowledgment of service or for any reason such summons is not be served personally,. theCourt shall, on the application of the party, re-issue such summons to be served by the Court inthe same manner as a summons to a defendant.Rule -17: Procedure when defendant refuses to accept service, or cannot be found.- Wherethe defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment,or where the serving officer, after using all due and reasonable diligence, cannot find thedefendant, who is absent from his residence at the time when service is sought to be effected onhim at his residence and there is no likelihood of his being found at the residence within areasonable time and there is no agent empowered to accept service of the summons on his behalf,nor any other 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 in which the defendantordinarily resides or carries on business or personally works for gain, and shall then return theoriginal to the court from which it was issued, with a report endorsed thereon or annexed theretostating that he has so affixed the copy, the circumstances under which he did so, and the nameand address of the person (if any) by whom the house was identified and ‘whose presence thecopy was affixed.Rule -18. Endorsement of time and manner of service.- The serving officer shall, in all casesin which the summons has been served under rule 16, endorse or annex, or cause to be endorsedor annexed, on or to the original summons, a return stating the time when and the manner inwhich the summons was served, and the name and address of the person (if any) identifying theperson served and witnessing the delivery or tender of the summons.Rule -20:Substituted service.- (1) Where the court is satisfied that there is reason to believe thatthe defendant is keeping out of the way for the purpose of avoiding service, or that for any otherreason the summons cannot be served in the ordinary way, the court shall order the summons tobe served by affixing a copy thereof in some conspicuous place in the court house, and also uponsome conspicuous part of the house (if any) in which the defendant is known to have last residedor carried on business or personally worked for gain, or in such other manner as the court thinksfit.(1A) Where the court acting under sub-rule (1) orders service by an advertisement in anewspaper, the newspaper shall be a daily newspaper circulating in the locality in which thedefendant is last known to have actually and voluntarily resided, carried on business orpersonally worked for gain.(2) Effect of substituted service—Service substituted by order of the court shall be as effectual asif it had been made on the defendant personally.(3) Where service substituted, time for appearance to be fixed—Where service is substituted byorder of the Court, the Court shall fix such time for the appearance of the defendant as the casemay require.Rule -21: Service of summons where defendant resides within jurisdiction of anothercourt.- A summons may be sent by the court by which it is issued, whether within or without theState, either by one of its officers or by post or by such courier service as may be approved bythe High Court, by fax message or by electronic mail service or by any other means as may beprovided by the rules made by the High Court to any court (not being the High Court) havingjurisdiction in the place where the defendant resides.Rule -23: Duty of court to which summons is sent.- The court to which a summons is sentunder rule 21 or rule 22 shall, upon receipt thereof, proceed as if it had been issued by such courtand shall then return the summons to the court of issue, together with the record (if any) of itsproceedings with regard thereto.
24. Service on defendant in prison.- Where the defendant is confined in a prison, the summonsshall be delivered or sent or by post or by such courier service as may be approved by the HighCourt, by fax message or by electronic mail service or by any other means as may be providedby the rules made by the High Court) to the officer in charge of the prison for service on thedefendant.Rule -26. Service in foreign territory through political agent or court.- Where—(a) in the exercise of any foreign jurisdiction vested in the Central Government, a political agenthas been appointed, or a court has been established or continued, with power to serve asummons, issued by a court under this Code, in any foreign territory in which the defendantactually and voluntarily resides, carries on business or personally works for gain, or(b) the Central Government has, by notification in the Official Gazette, declared, in respect ofany court situate in any such territory and not established or continued in the exercise of anysuch jurisdiction as aforesaid, that service by such court of any summons issued by a court underthis Code shall be deemed to be valid service, the summons may be sent to such political agentor court, by post, or otherwise, or if so directed by the Central Government, through the Ministryof that Government dealing with foreign affairs, or in such other manner as may be specified bythe Central Government for the purpose of being served upon the defendant; and, if the politicalagent or court returns the summons with an endorsement purporting to have been made by suchpolitical agent or by the Judge or other officer of the court to the effect that the summons hasbeen served on the defendant in the manner hereinbefore directed, such endorsement shall bedeemed to be evidence of service.26A. Summonses to be sent to officers of foreign countries.- Where the Central Governmenthas, by notification in the Official Gazette, declared in respect of any foreign territory thatsummonses to be served on defendants actually and voluntarily residing or carrying on businessor personally working for gain in that foreign territory may be sent to an officer of thegovernment of the foreign territory specified by the Central Government, the summonses may besent to such officer, through the Ministry of the Government of Bangladesh dealing with foreignaffairs or in such other manner as may be specified by the Central Government; and if suchofficer returns any such summons with an endorsement purporting to have been made by himthat the summons has been served on the defendant, such endorsement shall be deemed to beevidence of service.Rule -27.Service on civil public officer or on servant of railway company or localauthority.- Where the defendant is a public officer (not belonging to the Indian military naval orair forces, or is the servant of a railway company or local authority, the court may, if it appears toit that the summons may be most conveniently so served, send it for service on the defendant tothe had gaff the office in which he is employed together with a copy to be retained by thedefendant.Rule -28. Service on soldiers, sailors or airmen.- Where the defendant is a soldier, sailor orairman, the court shall send the summons for service to his commanding officer together with acopy to be retained by the defendant.
Rule -29. Duty of person to whom summons is delivered or sent for service.- (1) Where asummons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, suchperson shall be bound to serve it if possible, and to return it under his signature, with the writtenacknowledgement of the defendant, and such signature shall be deemed to be evidence ofservice.(2) Where from any cause service is impossible, the summons shall be returned to the court witha full statement of such cause and of the steps taken to procure service, and such statement shallbe deemed to be evidence of non-service.Rule -30. Substitution of letter for summons.- (1) The court may, notwithstanding anythinghereinbefore contained, substitute for a summons a letter signed by the Judge or such officer ashe may appoint in this behalf, where the defendant is, in the opinion of the court, of a rankentitling him to such mark of consideration.(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated ina summons, and subject to the provisions of sub-rule (3), shall be treated in all respects as asummons.(3) A letter so substituted may be sent to the defendant by post or by a special messengerselected by the court, or in any other manner which the court thinks fit; and, where the defendanthas an agent empowered to accept service, the letter may be delivered or sent to such agent.Opinion:A summons is a paper issued by a court informing a person that a complaint has been filedagainst her. A sheriff or other authorized person for service of process, called a process server,may serve it. The summons states the name of both plaintiff and defendant, the title and filenumber of the case, the court and its address, the name and address of the plaintiffs attorney, andinstructions on how to file a required response to the complaint within a certain time (such as 30days after service), usually with a form on the back on which information of service of summonsand complaint is to be filled out and signed by the process server. A copy of the summons mustbe served on each defendant at the same time as the complaint to start the time running for thedefendant to answer. After service to the defendants, the original summons, along with the
"return of service" proving the summons and complaint were served, is filed with the court toshow that each defendant was served.A document issued by the court at the time a lawsuit is filed, stating the name of both plaintiffand defendant, the title and file number of the case, the court and its address, the name andaddress of the plaintiffs attorney, and instructions as to the need to file a response to thecomplaint within a certain time (such as 30 days after service), usually with a form on the backon which information of service of summons and complaint is to be filled out and signed by theprocess server. A copy of the summons must be served on each defendant at the same time as thecomplaint to start the time running for the defendant to answer. Certain writs and orders to showcause are served instead of a summons since they contain the same information along withspecial orders of the court. After service to the defendants, the original summons, along with the"return of service" proving the summons and complaint were served, is filed with the court toshow that each defendant was served. A summons differs from a subpoena, which is an order towitnesses to appear.