THE CODE OF CIVIL PROCEDURE, 1908
[VOLUME – II]
THE FIRST SCHEDULE
PARTIES TO SUITS
1[1. Who may be joined as plaintiffs?—All persons may be joined in one suit as plaintiffs where-
(a) Any right to relief in respect of, or arising out of, the same Act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b)If such persons brought separate suits, any common question of law or fact would arise.]
COMMENTS
Representative writ petition.
Where a petition is filed in representative capacity, the law laid down in that petition would bind all the persons, similarly situated.(Maharashtra Vikrikari Sangathan v. State of Maharashtra, AIR 2000 SC 522(631).
1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
2. Power of Court to order separate trial.—Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.
1[3. Who may be joined as defendants?—All persons may be joined in one suit as defendants where-
(a) Any right to relief in respect of, or arising out of, the same Act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) If separate suits were brought against such persons, any common question of law or fact would arise.]
1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
1[3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.—Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
4. Court may give judgment for or against one or more of joint parties.—Judgment may be given without any amendment-
(a) For such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;
(b) Against such one or more of the defendants as may be found to be liable, according to their respective liabilities.
5. Defendant not be interested in all the relief claimed.—It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.
6. Joinder of parties liable on same contract.—The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and promissory notes.
7. When plaintiff in doubt from whom redress is to be sought.—Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.
1[8. One person may sue or defend on behalf of all in same interest.—(1) Where there are numerous persons having the same interest in one suit.—
(a) One or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) The Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this Rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]
1. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
1[8A. Power of Court to permit a person or body of person to present opinion or to take part in the proceedings.—While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
9. Misjoinder and non-joinder.—No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it :
1[Provided that nothing in this Rule shall apply to non-joinder of a necessary party.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
10. Suit in name of wrong plaintiff.—(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended- Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the 13Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
1[10A. Power of Court to request any pleader to address it.—The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which is likely to be so affected is not represented by any pleader.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
11. Conduct of suit.—The Court may give the conduct of 1[a suit] to such persons as it deems proper.
1. Substituted by Act No. 104 of 1976, for the words “the suit”, w.e.f. 1st February, 1977.
12. Appearance of one of several plaintiffs or defendants for others.—(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or Act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or Act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.
13. Objections as to non-joinder or misjoinder.—All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
FRAME OF SUIT
1. Frame of suit.—Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation—For the purposes of this Rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
ILLUSTRATION
A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the, years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
3. Joinder of causes of action.—(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit.
4. Only certain claims to be joined for recovery of immovable property.—No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-
(a) Claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof;
(b) Claims for damages for breach of any contract under which the property or any part thereof is hold; and
(c) Claims in which the relief sought is based on the same cause of action:
Provided that nothing in this Rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
5. Claims by or against executor, administrator or heir.—No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir, or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents.
1[6. Power of Court to order separate trials.—Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.)
1. Substituted by Act No. 10 of 1976, for former Rule 6, w.e.f. 1st February, 1977.
7. Objections as to misjoinder.—All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
RECOGNIZED AGENTS AND PLEADERS
1. Appearances, etc., may be in person, by recognized agent or by pleader.—Any appearance, application or Act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader 1[appearing, applying or acting, as the case may be,] on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
1. Substituted by Act No. 22 of 1926, for the words “duly appointed to Act”.
2. Recognized agents.—The recognized agents of parties by whom such appearances, applications and acts may be made or done are—
(a) Persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) Persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or Act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.
3. Service of process on recognized agent. -(1) Process served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.
(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.
1[4. Appointment of pleader.—(1) No pleader shall Act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be 2[filed in Court and shall, for the purposes of sub-rule (1), be] deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
3[Explanation.—For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit.—
(a) An application for the review of decree or order in the suit,
(b) An application under Section 144 or under Section 152 of this Code, in relation to any decree or order made in the suit,
(c) An appeal from any decree or order in the suit, and
(d) Any application or Act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.]
4[(3) Nothing in sub-rule (2) shall be construed—
(a) As extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) As authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1)]
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating—
(a) The names of the parties to the suit,
(b) The name of the party for whom he appears, and
(c) The name of the person by whom he is authorized to appear:
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to Act in Court on behalf of such party.]
1. Substituted by Act No. 22 of 1926, for the original Rule 4.
2. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
3. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
4. Substituted by Act No. 104 of 1976, for sub-rule (3), w.e.f. 1st February, 1977.
5. Service of process on pleader.—1[Any process served on the pleader who has been duly appointed to Act in Court for any party] or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if same had been given to or served on the party in person.
1. Substituted by Act No. 104 of 1976, w.e.f.. 1st July, 1977.
6. Agents to accept service.—(1) Besides the recognised agents described in Rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.
(2) Appointment to be in writing and to be filled in Court- Such appointment may be special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.
1[(3) The Court may, at any stage of the suit, order any party to the suit not having a recognised agent residing within the jurisdiction of the Court, or a pleader who has been duly appointed to Act in the Court on his behalf, no appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
INSTITUTION OF SUITS
1. Suit to be commenced by plaint.— (1) Every suit shall be instituted by presenting a 1[plaint in dublicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
2[(3) The Plaint shall not be deemed to be duly instituted unless it complies with te requirments specified in sub-rules (1) and (2)]
2. Register of suits.—The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.
1. Subs. by Act No.46 of 1999, section 14 for "Plaints to the court " (w.e.f. 1-7-2002).
2. Added by Act No.46 of 1999, section 14 (w.e.f. 1-7-2002).
ISSUE AND SERVICE OF SUMMONS
ISSUE OF SUMMONS
1. Summons.— 1[(1) 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 of summons on the defendant:
Provide that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim:
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court, for reasons to be recorded in writing, but which shall not be which shall not be latter than ninety days from the date of service of summons.]
(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—
(a) In person, or
(b) By a pleader duly instructed and able to answer all material questions relating to the suit, or
(c) By a 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 be sealed with the seal of the Court.
1. Sub-rule (1) was substituted by Act No. 46 of 1999, section 15 and again substituted by Act No. 22 of 2002, Section 6 (w.e.f. 1-7-2002).
1[2. Copy of plaint annexed to summons.—Every summons shall be accompanied by a copy of the plaint.]
1. Substituted by Act No. 46 of 1999, Section 15 (w.e.f. 1-7-2002).
3. Court may order defendant or plaintiff to appear in person.—(1) Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear 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 same day, it shall make an order for such appearance.
4. No party to be ordered to appear in person unless resident within certain limits.—No party shall be ordered to appear in person unless he resides-
(a) Within the local limits of the Court’s ordinary original jurisdiction, or
(b) Without such limits but at place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house.
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.
6. Fixing day for appearance of defendant.—The day for the appearance of the defendant 1[under sub-rule (1) of the Rule 1] shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.
7. Summons to order defendant to produce documents relied on by him.—The summons to appeal and answer shall order the defendant to produce 2[all documents or copies therof specified in rule 1-A of Order VIII] in his possession or power upon which he intends to rely in support of his case.
1. Substituted by Act 46 of 1999, sec 15 (w.e.f. 1-7-2002).
2. Substituted for "all documents" by Act 46 of 1999, sec 15 (w.e.f. 1-7-2002).
8. On issue of summons for final disposal, defendant to be directed to produce his witnesses.—Where the summons is for the final disposal of the suit, it shall also direct the defendant to produce, on the day fixed for his appearance, all witnesses upon whose evidence he intends to relay in support of his case.
SERVICE OF SUMMONS
1[9. Delivery of summons By Court— Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or 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 Court may direct.
(3) The services of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due, addressed to the defendant or his agent empowered to accept the service or by speed post or by such curier services as are approved by the High Court or 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 the plaintiff.
(4) Notwithstanding anything contained in sub-rule(1). Where a defendant resides outside the jurisdiction of the Court in which the suit is instituted, and the Court directs that the service of summons on that defendant my be made by such mode of service of summons as is referred to in sub-rule (3) (except by registered post acknowledgment due), the provisions of rule 21 shall not apply.
(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is recived by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the posta article containing the summons or had refused to accept the summons 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 the defendant:
Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, 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 courier agencies for the purposes of sub-rule (1)
(2) The service of such summons shall be effected by or on behalf of such plaintiff by delivering or tendering to the defendant personally a copy thereof signed by the Judge or such officer of the Court or by such mode of service as is referred to in sub-rule (3) of rule 9.
(3) The provisions of rules 16 and 18 shall apply to a summons personally served under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgment of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant.]
1. Rule 9 was Substituted by Act No. 46 of 1999, Sec 15 and now further substituted by Act No. 22 of 2002, Sec 6 (w.e.f. 1-7-2002).
10. Mode of service.—Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the Court.
11. Service on several defendants.—Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.
12. Service to be on defendant on person when practicable, or on his agent.—Wherever it is practicable service shall 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.
13. Service on agent by whom defendant carries on business.—(1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service.
(2) For the purpose of this Rule the master of a ship shall be deemed to be the agent of the owner or chartered.
14. Service on agent in charge in suits for immovable property.—Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accent the service, it may be made on any agent of the defendant in charge of the property.
1[15. Where service may be on an adult member of defendant’s family.—Where in any suit the defendant is absent Prom his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf service may be made on any adult member of the family, whether male or female, who is residing with him.
Explanation.—A servant is not a member of the family within the meaning of this Rule.]
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
16. Person served to sign acknowledgement.—Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgement of service endorsed on the original summons.
17. Procedure when defendant refuses to accept service, or cannot he found.—Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, 1[who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable 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 defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a 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.
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
18. Endorsement of time and manner of service.—The serving officer shall, in all cases in which the summons has been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.
19. Examination of serving officer.—Where a summons is returned under Rule 17, the Court shall, if the return under that Rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and 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.
19A. Simultaneous issue of summons for service by post in addition to personal service.— 1[ * * *].
1. Rule 19A was Inserted by Act No. 104 of 1976, now omitted by Act No. 46 of 1999, Sec 15 (w.e.f. 1-7-2002).
20. Substituted services.—(1) Where the Court 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 shall order the summons to be served by affixing a copy thereof 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, or in such other manner as the Court thinks fit.
1[(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a 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.]
(2) Effect of substituted service-Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed -Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.
1. Inserted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
1[20A. Service of summons by post.—Repealed by the Code of Civil Procedure (Amendment) Act, w.e.f. 1st February, 1977]
21. Service of summons where defendant resides within jurisdiction of another Court.—A summons may sent by the Court by which it is issued, whether within or without the State, either by one of its officers 2[or by post or by such courier service as may be approved by the High court, by fax message, by electronic Mail service or by any other means as may be provided by the rules made by the High Court] to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.
22. Service within presidency-towns of summons issued by Courts outside.—Where as summons issued by any Court established beyond the limits of the towns of Calcutta, Madras 3[and Bombay] is to be served within any such limits, it shall be sent to the Court of Small Causes within whose jurisdiction it is to be served.
1. R.20-was inserted by Act No.66 of 1956, Sec 14.
2. Substituted by Act No. 46 of 1999, sec 15 (w.e.f. 1-7-2002).
3. Substituted by the A.O. 1937, for the words “Bombay and Rangoon”.
23. Duty of Court to which summons is sent. -The Court to which a summons is sent under Rule 21 or Rule 22 shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto.
24. Service on defendant in prison. - Where the defendant is confined in a prison, the summons shall be delivered or sent 1a[by post or by such courier service as may approved by the High Court by Fax massage of by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] to the officer in charge of the prison for service on the defendant.
25. Service where defendant resides out of India and has no agent. - Where the defendant resides out of 1[India] and has no agent in 2[India] empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him 2a[by post or by such courier service as may approved by the High Court by Fax massage of by Electronic Mail service or by any other means as may be provided by the rules made by the High Court] if there is postal communication between such place and the place where the Court is situate:
2[Provided that where any such defendant 3[resides in Bangladesh or Pakistan,] the summons, together with a copy thereof, may be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:
Provided further that where any such defendant is a public officer 4[in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military, naval or air forces)] or is a servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Government may, by notification the Official Gazette, specify in this behalf.]
1a. Substituted by Act No. 46 of 1999, Sec 15 (w.e.f. 1-7-2002).
1. Substituted by Act No. 2 of 1951, for the words “the States”.
2. Inserted by Act No. 19 of 1951.
2a. Substituted by Act No. 46 of 1999,sec 15 (w.e.f. 1-7-2002).
3. Substituted by Act No. 104 of 1976, for the words “resides in Pakistan,”, w.e.f 1st February, 1977.
4. Substituted by Act No. 104 of 1976, w.e.f. 1st February, 1977.
1[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 Agent has been appointed, or a Court has been established or continued, with power to serve a summons, issued by a Court under this Code, in any foreign territory in which the defendant actually 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 of any Court situate in any such territory and not established or continued in the exercise of any such jurisdiction as aforesaid, that service by such Court of any summons issued by a Court under this Code shall be deemed to be valid service, the summons may be sent to such Political Agent or Court, by post, or otherwise, or if so directed by the Central Government, through the Ministry of that Government dealing with foreign affairs, or in such other manner as may be specified by the Central Government for the purpose of being served upon the defendant : and, if the Political Agent or Court returns the summons with an endorsement purporting to have been made by such Political Agent or by the Judge or other officer of the Court to the effect that the summons has been served on the defendant in the manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.
1. Substituted by Act No. 104 of 1976, for former Rule 26, w.e.f. 1st February, 1977.
26A. Summonses to he sent to officer to foreign countries.—Where the Central Government has, by notification in the Official Gazette, declared in respect of any foreign territory that summonses to be served on defendants actually and voluntarily residing or carrying on business or personally working for gain in that foreign territory may be sent to an officer of the Government of the foreign territory specified by the Central Government the summonses may be sent to such officer, through the Ministry of the Government of India dealing with foreign affairs or in such other manner as may be specified by the Central Government; and if such officer ,any such summons with an endorsement purporting to have been made by him that the summons has been served on the defendant, such endorsement shall be deemed to be evidence of service.]
27. Service on civil public officer or on servant of Railway Company or local authority.—Where the defendant is a public officer (not belonging to 1[the Indian] military 2[naval or air] forces 3[***]), or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send it for service on the defendant to the head of the office in which he is employed together with a copy to be retained by the defendant.
1. Substituted by the A.O. 1950, for the words “His Majesty's”.
2. Substituted by Act No. 10 of 1927, for the words “or naval”.
3. The words “or His Majesty's Indian Marine Service” omitted by Act No. 35 of 1934.
28. Service on soldiers, sailors or airmen.—Where the defendant is a soldier, 1[sailor] 2[or airman], the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.
1. Inserted by Act No. 35 of 1934.
2. Inserted by Act No. 10 of 1927.
29. Duty of person to whom summons is delivered or sent for service.—(1) Where a summons is delivered or sent to any person for service under Rule 24, Rule 27 or Rule 28, such person shall be bound to serve it if possible and to return it under his signature, with the written acknowledgement of the defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.
30. Substitution of letter for summons.—(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration.
(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in a summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a summons.
(3) A letter so substituted may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and, where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.
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