Service of Summons of the Court, or service of any other Notice or legal document postulate elementary principles of natural justice, i.e., a Person is thereby put to Notice, that if he neglects to take due steps upon receipt of the Summons / Notice, prejudicial legal action or Orders of the Court may be passed against him.
Service of Summons is the first step after the institution of the Suit. After the institution of the Suit, the Plaintiff is immediately require to tender draft Summons before the concerned dept of the Court, wherein the said office cause to affix the Seal of the Court, put up the future date on which the Defendant is called upon to appear and answer the claim of the Plaintiffs; and also cause it to be signed by the concerned Judge or any other officer of the Court empowered in this behalf; and cause it to be returned to the Plaintiffs, for it to be served upon the Defendants, either by Regd post / Speed post, or through Serving officer of the Court / Bailiff. The Summons must be tendered within 30 days from the date of institution of the Suit, and must be served at least 14 days prior to returnable date mentioned in the Summons. [Section 27, O.5 R.10]
Personal Service of Summons through Officer of the Court: The thumb rule is that, wherever it is practicable, service should be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient [O.5 R.12]. As per O.3 R.2 of CPC, 1908, Agent includes the power of Attorney holders, and any other person carrying on trade or business for and in the name of the Defendant.
Service upon family Member of the Defendant: Where the Defendant is not available at the time of effecting Service, the Service may be effected upon any adult family Member of the Defendant, who is residing with him. A service upon servant is not recognized in law as service upon family member of the Defendant. [O.5 R.15]
In cases where Service is duly effected, the Serving officer should prepare a Report stating the time when and the manner in which the summons was served, and the name and address of the person who identified the person served and witnessed the delivery of the summons [O.5 R.18]. The Defendant or Agent or any other person receiving Summons are obliged to put their signature and acknowledgement of receipt, endorsed on the original Summons. [O.5 R.16]
Mode of Service by Pasting of copy of Summons on outdoor / any conspicuous part of the House / Residence / work place, of the Defendant: In any of the circumstances enumerated hereinafter, the Service of Summons may be effected by Pasting copy of Summons on outdoor / any conspicuous part of the House / Residence / work place, of the Defendant. The circumstances are (i) where the defendant or his agent or his adult family member refuses to accept the Summons or sign the acknowledgment, or (ii) where the Defendant is absent from his residence at the time when service is sought to be effected on him at his residence, and there is no agent or any other adult family member of the Defendant is available for service, and the serving officer after making due efforts and / or inquiries, to find out the availability or whereabouts of the Defendant, satisfies himself that there is no likelihood of Defendant being found at the residence within a reasonable time. The Serving officer then may proceed to serve the Summons in the manner aforesaid, and then shall return the original Summons to the Court, with a report 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. [O.5 R.17].
In aforesaid cases of Service, the Court may examine the Serving officer, even if its report is verified by an affidavit; and the Court must examine the Serving officer, if its report is not verified by an affidavit; and the Court may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. [O.5 R.19]
Mode of Service by Regd Post / Speed Post: The Service of Summons may in the alternative be effected by Regd Post / Speed Post, in both cases where Defendant resides / carries on business within the jurisdiction of the Court issuing Summons, or outside jurisdiction of the Court issuing Summons; or by a Courier service / Email / Fax, if it is permitted under the Rules. [O.5 R.9]. When the Summons was properly addressed, pre-paid and duly sent by Regd post / Speed post, acknowledgment due, the Courts may regard deemed Service of Summons, even if the A/d card is lost or mislaid or is not received by Court; or (b) When Postal article is returned back with the endorsement “Refused ” or alike endorsement [O.5 R.9(5)].
In Suits relating to Immovable property, where Service cannot be effected upon Defendant, the Service may be effected upon a person who is in-charge of the concerned Immovable property. [O.5 R.14]
Substituted Service: Where the defendant is avoiding the service of Summons upon himself, or for any other reasons if the summons Could not be served in the ordinary manner, a simple application under this Rule may be made, praying that (a) the summons may be served by affixing the copy of the Summons in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain; and / or (b) the Service of Summons may be completed by an advertisement in the daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (O.5 R.20)
Additional Service by Plaintiff: The Court, on an Application by the Plaintiffs, may in addition to Service of Summons as aforesaid, allow Plaintiffs to cause personal service of Summons upon Defendants; and the Service by Plaintiff upon Defendants is considered in law as Service by Serving officer of the Court. [Rule 9A(3)]
In Suits against any Public / Private Limited Company, the Service may be effected on the secretary or on any director, or other principal officer of the Company; or by leaving it or sending it by post addressed to the Company at the registered office, or if there is no registered office then at the place where the Company carries on business. [O.29 R.2]. In Suits against Partnership Firms, the Service may be effected on any one or more of the Partner, or by sending at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business.
Section 27 of the General Clauses Act, 1897 and Section 114, illustration (f) of the Evidence Act, 1872, play significant role in presumption of due Service of postal articles sent by Regd post / Speed post / UCP. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post......... unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
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