CODE OF CIVIL PROCEDURE

ARTICLE

Prerequisites to be followed when issuing SUMMONS to

witnesses

AND

Pleadings under the Code of Civil Procedure

SUBMITTED BY

Uditi Patel
A3211119276
Section – D
Semester – 7
 Article 1

Prerequisites to be followed when issuing SUMMONS to

witnesses

Introduction
A summons is a written notice served on a person under the authority of the court to appear
personally before the court. Summons in Civil Procedure Code, 1908 (hereinafter referred to
as “CPC”) are served on the defendants and testimonials. Defendants are summoned to
intimate the suit filed against them. Whereas as the evidences are summoned to demand
substantiation or to produce documents or both.
The conception of process emanates from the natural justice principle of Audi alteram
partem (hear both sides). Only through similar process, the defendants come apprehensive of
proceedings against them. In the after stage of a suit, the parties can prove their case with the
help of substantiations. To bring similar witnesses to the court, the parties seek the court’s
support. therefore, process are transferred to the substantiations through the procedure laid
under Order 16 of CPC. Without process, the parties can not apply the presence of witnesses
and establish their case. Bereft of similar process, the attendance of substantiations can not be
achieved thereby the dispute can not be resolved on merits.

Who cannot be summoned

According to CPC, certain people can not be summoned to appear in person. So, it should be
made sure that a summon isn't served to similar people. According to Rule 19 of Order 16,
the court can not serve summons to persons who are abiding outside the original jurisdiction
of the court. The rule is exempted if such a person’s home is positioned less than fifty miles
from the courthouse and even in the case where the person’s residence is positioned less than
two hundred miles from the courthouse where there's an accessibility of public transport.
Apart from this, women according to certain customs who don't appear in public can not be
summoned to appear in person before a court nor arrested under section 132 of CPC. Section
133 exempts persons holding constitutional positions from particular appearance in the court.
So they can not be summoned by the court either.

List of witnesses
Order 16 Rule 1 of CPC stipulates that a list of witnesses has to be submitted to the court by
the parties. Such a list conforming of witnesses has to state details similar as whether the
witnesses are summoned for giving proof or to produce documents or both. This list has to be
submitted within fifteen days from the date on which the issues are framed.
But the entire summons process itself isn't mandatory under CPC. A witness can also be
produced before the court without the name in the witness list or indeed without a summons
under Rule 1A of Order 16. This is used in cases where the party doesn't bear the court’s help
in bringing a witness to the court. So, only when the party is unable to bring the witness by
himself, the court’s help is sought and a summon is transferred.
Under Rule 14 of Order 16, the court may also summon a witness suo moto if the court feels
it's necessary to serve justice. The court can examine such witnesses on its discretion and
may require such a person to produce any evidence or documents he can.

Essentials in a summons
As per Order 5 Rule 1, the basic necessity in any summons is the sign of the Judge and seal
of the court issuing the summons. With respect to the summons to a witness, Rule 5 of Order
16 nations that particulars similar as date and time at which the witness is needed to attend
are to be specified. Along with these, the reason for the procurement of the attendance of the
witness similar as to give evidence or to produce a document or both should also be
mentioned in the summons. However, the name and description of the document required
should also be mentioned in the summons, If the witness is called for producing any
document.

Mode of service of summons

Summons to a witness can be served in different ways as it's served to a defendant under
Order 5. Summons can be delivered personally to the person or his authorised agent.
However, the summons can be delivered to any adult family member residing with the
witness, If the person can not be set up in his residence for a reasonable time. The court can
serve the summons through its court officer or by registered post acknowledgement due. This
shall be the most preferred method as there's a proof of acknowledgement slip and there can
be no false report of service of summons.
However, the court officer can affix the summon on the door or the other conspicuous part of
the house where the person resides or on the place where the person carries business, If the
person purposely avoids the summons and can not be reached by any means. The Supreme
Court recently in a suo moto writ petition for the extension of limitation period due to
lockdown held that digital mediums such as WhatsApp, Telegram and Email can be used to
send summons. It was also held that the blue tick in WhatsApp can be considered as the
acknowledgement of the service.

Summons outside the court’s jurisdiction

A court can not summon a person residing outside its jurisdiction. In that case, Order 5 Rule
21 provides that the court may issue the summons to a court having jurisdiction over the
person’s residence through its officer or by other means similar as post or electronic mail
service. also Rule 23 enables such a court to which the summons is transferred to serve the
summons.
According to Section 31 of CPC, Section 27, 28 and 29 can also apply in the case of
summons to witnesses. Wherein Section 28 in service of summons outside the State states
that the summons has to be sent to a court with authority in the other State and it has to be in
agreement with the rules in the transferee State. Such a court can serve the summon and a
rephrasing can also be made accordingly. Similarly, under section 29, a foreign summons
passed by a court in India which doesn't come under CPC or a court under the authority of
Central Government of
Indian outside India or a court notified by the Government in official gazette under the
section can be transferred to courts under the CPC for service of such summons.

Non-compliance with summons

In case the witness fails to comply with the summons served, the person will face
consequences laid under Rule 10 of Order 16. On such a situation, it's given that the court
may issue a proclamation stating the person to be present at a specific time and date for
giving evidence or to produce the document and a copy of the proclamation has to be affixed
on the witness’s external door or any conspicuous part of the house. Along with this, the
court on its discretion may also issue a warrant to arrest the person for not appearing. Rule 12
states that the court could impose a fine less than five hundred rupees fornon-appearance.
Pertaining to which the court could also attach the property of the person in order to recover
the fine if imposed. All this consequence could be avoided if the person gives any lawful
excuse to the court for his absence.

Conclusion
Once the issues are framed in a civil dispute, the parties initially have to classify the witness
whom they can bring by themselves and whom they cannot. Accordingly, a list of witnesses
conforming of witnesses who can be produced only with the court’s assistance has to be
made and submitted to the court. Thus, the summons are issued and they should be served on
the witnesses in modes prescribed by the statute. By which those witnesses come legally
responsible to attend the proceedings. similar witnesses will be penalised if they don’t obey
the summons and appear before the court.
Unlawful warrants for the failure to obey the summons illustrates the significance of process
to witnesses. In a disagreement, the witnesses generally have no interest in the case. They've
nothing to lose if they don’t carry out the responsibility of a substantiation. But a summon
from court creates a liability on the person to whom it's issued. By which the person has to
attend unless they come under the given exceptions. The reason behind such a coercive
process is to obtain a just decision in the end which can be done based only on the evidence
and documents acquired from the witnesses.
 Article- 2

Pleadings under the Code of Civil Procedure

Introduction
Pleadings form the foundation for any case in the court of law. It's a statement in writing
filed by the counsel of complainant stating his contentions on the case, on the base of which
the defendant shall file the written statement defending himself and explaining why the
complainant’s contentions shouldn't prevail. occasionally the complainant, having filed his
plaint, may, with the leave of the court, file a statement or the court may bear him to file a
written statement. In similar cases, the written statement forms part of the complainant’s
pleadings. Similarly, there are cases in which the defendant having filed his written statement
may, with the leave of the court, file an additional written statement or the Court may require
him to do so. In similar cases the additional written statement also forms part of the
defendant’s pleadings. This is the first stage of a suit. Code of Civil Procedure( CPC) in order
6, Rule 1 defines pleadings as a written statement or a plaint. The complainant’s written
statement and the defendant’s additional written statement are termed supplemental
pleadings.

Objective of pleading
The whole objective behind pleading is to narrow down on the issues and give a clear picture
of the case thereby enhancing and expediting the court proceedings. The pleadings help both
the parties know their point of controversy and where both parties differ so as to bring forth
the relevant arguments and evidence in the court of law.
The Supreme Court on 25th March, 1972 while disposing a case praying for certain
amendments in an election petition, observed that rules of pleadings are intended towards
giving justice and to act as aids for fair trial.

Rules of Pleadings
The four words which can briefly summarise the rule of pleading is ‘ Plead facts not law ’.
The counsel of both the parties should only project the facts in their respective case rather
than suggesting on the laws applicable in the particular case. To gain a crystal clear
understanding of the same, the rules can be studied in two tract that is
1) Basic or Fundamental Rules
2) Particulars or other rules

Basic or Fundamental Rules

Basic or Fundamental Rules are discussed in thesub-rule( 1) of Rule 2 of Order VI of the
Code of Civil Procedure, 1908. Summarising the provision, the introductory rules of
pleadings are the following

Facts should be pleaded upon and not the law

This was first held in the case Kedar Lalv. Hari Lal where it was held that the parties are
under the duty to state the facts on which they're claiming their compensation. The court shall
apply the law as per the stated facts to render the judgement. One shouldn't assert or apply
any laws for claiming right on the stated facts.

Material facts should be pleaded

The alternate basic rule is to present facts which are material only. Immaterial facts shall not
be considered. The question arose in the court of law that what's the factual scope of ‘
material facts ’. It was decided by the judge in the case Union of Indiav. Sita Ram that
material facts will be inclusive of all those facts upon which the complainant’s counsel will
claim damages or rights as the case may be or the defendant will put forth his defence. In
nutshell, facts which will form the basis for claiming a right or compensation by the
complainant or prove the defendant’s defence in the written statement will fall under the
ambit of being ‘ material ’.

Evidence shouldn't be included while pleading

It says that pleadings should contain a statement of material facts on which the party relies
but not the evidence by which those facts are to be proved.
There are two types of facts

 Facts probanda the facts which need to be proved,i.e material facts

 Facts probantia facts by which a case is to be proved,i.e evidence
Only facts probanda should form the part of pleadings and not facts probantia. The material
facts on which the complainant relies for his claim or the defendant relies for his defence are
called facta probanda, and they must be stated in the plaint or in the written statement, as the
case may be.
Facts in concise manner should be presented
This is the last and final introductory rule of pleadings. Compressed and crisp presentation
must be stuck while presenting the pleadings. At the same time it must be kept in mind that in
order to maintain brevity of facts one shouldn't miss out on important data in the pleadings.
Pleadings can be saved from superfluity if one takes care in syntax.

Amendment of Pleadings
Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deal with amendment of
pleading. These provisions aim towards achieving justice in the society. Rule 17 of the Code
of Civil Procedure, 1908 provides either parties may be ordered to amend or alter his
pleading at any stage of the proceeding in such manner which shall be fair and just and allow
amendment when necessary so as to determine the exact controversial question between the
parties.
On the other hand Rule 18 deals with the issue of failure of amending the pleading. It deals
with the law that if court orders a party to make necessary and if he fails to do the same
within the given time limit given by the order or if no time is limited also within 14 days
from the date of the order, he shall not be permitted to amend after the expiration of similar
limited time as forenamed or of similar 14 days, as the case may be, unless the time is
extended by the Court.

Conclusion
Pleadings form the backbone of any legal suit. The case is set out in the pleading. It guides
the parties to form the arguments and know the contentions of the other party so as to frame
claims or defence by either party respectively. It's guidance in the whole trip of the suit. They
also determine the range of admissible evidence which the parties should adduce at the trial.
The Code of Civil Procedure lays down the fundamental rules of pleadings along with the
amendments to the same. These provisions are aimed to strike a balance in the society and to
achieve the ultimate ends of justice.

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