Q.1] What is a Summon? What are the essentials of a summon?

What are the contents of a

valid summon?

A.1]

A summon is basically an intimation sent to a defendant or witness by the Court. The Code
does not define the word ‘summon’, however, according to the dictionary, it is a document
asking the person to whom it is addressed to attend before a judge or office of the court for a
certain purpose and it is issued from the office of a court of justice. Order 5 deals with
summons to a defendant and Order 16 deals with summons to witnesses.

The Essentials of a summon are:

1. It should be signed by either a judge or any such officer appointed by him.

2. It should be sealed with the seal of the court, as stated in Order 5 Rule 1(3).
3. The summon should be accompanied by a plaint or if so permitted, by a concise
statement thereof, as mentioned in Rule 2.

The Contents of a Valid Summon are:

1. As mentioned in Rule 5, it must contain a direction addressing that the date fixed is
whether for the issues to be settled only or for the suit’s final disposal.
2. If the summon issued is for the final disposal of the suit, according to Rule 8, the
defendant shall be directed to produce his witnesses.
3. According to Rule 6, sufficient time must be given by the Court to the defendant in
order for him to appear and answer the Plaintiff’s claim on the day fixed.
4. Rule 7 states that the summon must consists of an order to the defendant asking him
to present all the documents that he has in his possession or power upon which he
intends to rely on in support of his case.

Q.2] In what ways can the defendant to whom the summon is issued appear before the court?
What are the exemptions from personal appearance after a summon is issued?

A.2] According to Rule 1(2), the defendant to whom the summon is issued, may either appear

1. in person
2. by a pleader who is well instructed and is able to answer all the material questions
relating to the suit
 3. by a pleader accompanied by some person who is able to answer the questions
relating to the suit.

However, the Court may order the defendant or plaintiff to appear in person, as mentioned in
Rule 3.

Order 5 Rule 4 deals with exemption from appearance in person. According to it, no party
would be ordered to appear in person:

1. unless he resides
a) within the local limits of the Court’s ordinary original jurisdiction, or
b) without such limits, but at a place less than fifty miles or two hundred miles
(where public conveyance is available) from the courthouse, or
2. who is a women not appearing in public (Section 132), or
3. Who is entitled to exemption under the Code (Section 133)

Q.3] What does Section 27 state?

A.3] Section 27 deals with summons to defendant. According to it, when a suit is filed by
presentation of a plaint, the court must issue summons to the defendant to appear and answer
the claim of the plaintiff by filing a written statement which must be within thirty days from
the date of service of summons.

Q.4] What is Order 5 Rule 1(1)?

A.4] Rule 1 (1) of Order 5 states that when a suit has been duly instituted, a summon 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 the service of the summons on that
defendant.

Provided that no such summon 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 ways, he shall be allowed to file the same on such other day as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be later than
ninety days from the date of service of summons.

Q.5] What are the modes of service of summons?

A.5]

Service of 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.

The Code prescribes five principal modes of serving a summons to a defendant:

1. Personal or direct service (Rules 10 to 16 and 18)

2. Service by Court (Rule 9)
3. Service by Plaintiff (Rule 9-A)
4. Substituted Service (Rules 17, 19 and 20)
5. Service by Post
1. Personal or direct service:

Personal or direct service of summons upon the defendant are dealt with in Rules 10 to 16
and 18. It is an ordinary mode of service of summons. For the proper service of summons, the
following principles must be remembered:

i. In case there are two or more defendants, the service of summons should be
made on each defendant, as mentioned in Rule 11.
ii. Wherever it is practicable, the summon must either be served to the defendant
in person or to his authorized agent, as mentioned in Rule 12.
iii. A suit which is related to any business or work against an individual who does
not reside within the territorial jurisdiction of the court issuing the summons, it
may be served to either the manager or the agent carrying on such business or
work, as mentioned in Rule 13.
iv. In a suit for immoveable property, if the service of summons cannot be made
personally on the defendant and the defendant does not have any authorized
agent, the service of summons may be made on any agent of the defendant in
charge of the property, as per Rule 14.
v. Where the defendant is not present at his residence at the time of the service of
summons and there is no likelihood of him being found at his residence within
a reasonable period of time and he does not have any authorized agent, the
summons may then be served on any adult male or female member of the
defendant's family residing with him, as stated in Rule 15. However, a servant
would not be considered to be a family member.
According to Rule 10, the service of summons, in all the above scenarios, must be made by
delivering or tendering a copy thereof. The serving officer after making acknowledgment of
service of summons must make an endorsement on the original summons mentioning the
time and manner of service thereof and the name and address of the person, if any,
identifying the person served and witnessing the delivery or tender of summons.

2. Service by Court:

Rule 9 of Order V deals with delivery of summons by Court and States in cases, where the
defendant or his agent, empowered to accept the service of summons, resides within the
jurisdiction of the Court in which the suit was instituted, the summons to defendant shall,
unless the Court otherwise directs, be served by court officer or approved courier services.

The Court issuing the summons shall declare that the summons had been duly served on the
defendant, where

i. the defendant or his agent had refused to take delivery of the postal article containing
the summons or had refused to accept that summons by any other means specified in
sub rule (3) when tendered or transmitted to him, and
ii. Where the summons was properly addressed, pre-paid and duly sent by registered
post acknowledgment due, notwithstanding the fact that the acknowledgement having
been lost or mislaid, or for any other reason, has not been received by the Court
within 30 days from the date of issue of summons.
3. Service by Plaintiff:

In addition to the provisions of Rule 9, the Court, may also permit service of summons by the
Plaintiff served under Rule 9-A in addition to the service of summons by the Court.

4. Substituted Service:

"Substituted Service” means the service of summons by a mode which is substituted for the
ordinary mode of summons. The two modes of substituted service are:

A.
i. Where the defendant or his agent refuses to sign the acknowledgement or
ii. Where the serving officer, after due and reasonable diligence cannot find the
defendant, who is absent from his residence at the time when the service is sought to
be effected on him at his residence and there is no likelihood of him being found at
 his residence within a reasonable time and there is no authorized agent 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. Then
the serving officer shall, as mentioned in Rule 17, return the original to the Court
from which it was issued, with a report endorsed thereon or annexed thereto stating
the fact about affixing the copy, the circumstances under which to do 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. Further, according to Rule 19, if the Court is
satisfied, either on the affidavit of the serving officer or on his examination on oath,
that the summons has been duly served, it shall either declare that the summon has
been duly served or may make further enquiry in the matter as it thinks fit.

In the second mode as provided by Rule 17, the declaration by the court about the due service
of the summons is essential. If the provisions of the Rule 19 have not been complied with, the
service of summons cannot be said to be in accordance with law.

B. Where the Court is satisfied that there is a reason to believe that the defendant is
avoiding the service of summons or for any other reason the summons cannot be served
in the ordinary way, the Court shall order that the service may be effected in the
following manner:
i. by affixing a copy of the summons in some conspicuous place in the court house and
also upon some conspicuous part of the house in which the defendant is known to
have last resided, carried on business or personally worked for gain; or
ii. In such manner as the court thinks fit (Rule 20(1)) or
iii. By an advertisement in the daily newspaper circulating in the locality in which the
defendant is last known to have actually or voluntarily resided, carried on business or
personally worked for gain [(Rule 20(1- A)].

Substituted service under Rule 20 is as effective as personal service [(Rule 20(2)].

5. Service by Post:

Service of summons where defendant resides within jurisdiction of another Court: A summon
may be sent by the Court by which it is issued, whether within or without the State, either by
one of its officers or by post or by such courier service as may be approved by the High
Court, by fax message or by Electronic Mail service or by any other means as may be
provided by the rules made by the High Courts to any Court (not being the High Court)
having jurisdiction in the place where the defendant resides.

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 may be made by such
mode of service of summons as is referred to in sub-rule (3) of Rule 9 (except by registered
post acknowledgement due), the provision of Rule 21 shall not apply.

What is Suit ? Write about the suits of civil nature with examples.

Discuss about the fundamental rules of pleading.

Set off and counter claim

Briefly describe the different parts of a plaint.

Discuss the CPC provisions relating to the Appeals.

Resjudicata

What is an ex-parte decree ?

What are the remedies
available
against an ex-parte decree ?
What is an ex-parte decree ?
What are the remedies
available
against an ex-parte decree ?
What are issues ? Explain
how they are framed,
amended and
struck off.
What are issues ? Explain
how they are framed,
amended and
struck off.
What are issues ? Explain
how they are framed,
amended and
struck off.
What are issues ? Explain
how they are framed,
amended and
struck off.
What are issues ? Explain
how they are framed,
amended and
struck off.
What are issues ? Explain
how they are framed,
amended and
struck off.
What are issues ? Explain how they are framed, amended andstruck off.

Who are the parties to a

suit ? Discuss joinder of
parties and
effect of non-joinder.
Who are the parties to a
suit ? Discuss joinder of
parties and
effect of non-joinder.
Who are the parties to a suit ? Discuss joinder of parties andeffect of non-joinder.

Explain the different kinds of the Jurisdictions of the Civil Court.

Q.6] Jurisdiction

Jurisdiction and Place of Suing (Sec. 15

A.6]

to 20)
Meaning of jurisdiction
In general meaning, Jurisdiction is the power of the Court to take the
cognizance of an offence and to determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to

decide on a case or issue a decree.”

The jurisdiction was defined in the case of Hirday Nath vs  Ram Chandra. The
High Court of Calcutta stated that jurisdiction may be defined as judicial
power of Court to hear and determine the cause and adjudicate upon it.

Jurisdiction is decided mainly on the basis of:-

 Pecuniary value
 Local limits of Court
 The subject matter of Court
So the Court before taking the cognizance of offence, the following points
needs to be taken into consideration:-

 The pecuniary value of the suit

  The nature of the case
 The territorial limits of the court
It is not only sufficient that forum must have an authority to deal with the
matter or that the court has a pecuniary jurisdiction or the court has a local
jurisdiction but the court must be competent enough to grant the relief in
such matter.

Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil
rights is private rights and remedies that are different from the criminal and
political”. The word “nature”  indicates the identity or essential character of a
person or thing. So, we can draw the definition of suits of civil nature means
that the suit in a dispute relating to private rights and the suit must not be
related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which
is impliedly or expressly barred.

A suit which is related to the right to property or suit in which office is

contested is of civil nature suit, notwithstanding that such right may depend
entirely on the decisions of questions as to religious ceremonies or rites. It is
immaterial whether the fees to the office are attached or not, or whether
such an office is attached to a particular place or not.

The suit which is expressly barred means the suit which is barred by any
statute or any other law for the time being in force. The legislature has an
option to bar the jurisdiction of the civil court with respect to a particular
class of suit keeping itself with the ambit of the power conferred on the
Constitution of India. The establishment of the tribunal has taken away the
jurisdiction of the civil court with regard to the subject matter that is allotted
to the tribunal on the first instance, however, if any questions related to law
raised, or any provision of the act so created the tribunal can be looked into
by the civil court.  The civil court has no jurisdiction over the matter in which
court under the Code of Criminal Procedure, Revenue Court has exclusive
jurisdiction, or matter is dealt with special tribunal dealt under special
statutes. example Motor Accidents Claims Tribunal, Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of

law or general conduct of law. The basic purpose of barred impliedly is that
the court should not deal with the matter which causes injurious to the public
or which is against the public will.

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [2],

The Supreme Court observed that:-

 The phrases used in section 9 has a positive and negative meaning

 The earlier part has a wider sense as it covers all the matter of civil
nature; on the other hand, the latter part has a wider sense as it
excludes the matter which is impliedly or expressly barred.
 The two explanations mentioned in Section 9 expresses the
legislative intentions.
 It cast an obligation on the court to exercise the jurisdiction for the
enforcement of private rights
 No court is at discretion to refuse the matter which falls under this
section
 It is mandatory to take the cognizance of matter because the word
“shall” is used which means that it is a mandatory section.
In the case of  Shankar Narayanan Potti vs K. Sreedevi

The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all
types of civil matter as per Section 9 of CPC unless the suit is expressly or
impliedly barred.”

This means that Legislature can exclude the jurisdiction of the civil court by
inserting a provision or clause in any Act itself.

In the case of State of A.P VS Manjeti Laxmikanth Rao,  the court held that
for the purpose of constructing the test to determine the exclusion of civil
court it is necessary to look into the intent of the legislature to exclude the
jurisdiction. It means that the test is done to determine whether there is any
reason for the exclusion of jurisdiction and if there is any reason, to further
find out whether the just reason is justified or not. Although justification is
not subjected to judicial review. Once the court satisfies itself of the reason,
then it needs to determine whether the Act which excludes the jurisdiction
provides an alternative remedy for the same or not. An alternative remedy
must be in regard to such function which civil court must exercise in absence
of such exclusion and would be empowered to pass any order which the civil
court in similar circumstances would have passed.

In the case of Bar Council of West Bengal vs A. Austin.  The High Court of
Calcutta states that when the statute which bars the jurisdiction does not
provide an alternative remedy then the jurisdiction of the civil court cannot
be excluded.

In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is
not necessary that the entire suit cannot be instituted in the civil court.

In the case of Shri Panch Nagar Parak vs Purushottam Das.  If there are no
express provisions in any statute the court needs to look into the purpose,
scheme and relevant provisions of the Act in order to determine implied
exclusion of the jurisdiction of a civil court. Section 15 to 20 deals with the
place of suing.

There are three kinds of jurisdiction to determine the place of suing:-

 Territorial jurisdictions
 Pecuniary jurisdictions
 Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to
determine whether the court has jurisdiction to deal with the matter. If the
court has all these (territorial, pecuniary, or subject matter jurisdiction then
only the court has the power to deal with the case. In the case, if the court
does not have any of the above-mentioned factors then it will be considered
as lack of jurisdiction or the irregular exercise of jurisdiction. when the court
who does not have jurisdiction decide the case and give a decision then such
decision will be considered as void or voidable depending upon the different
circumstances.

Pecuniary jurisdiction ( Section 15)

Every suit shall be instituted in the court of lowest grade competent to try it.
The word competent denotes that the court must have the power to hear the
case with regards to pecuniary jurisdiction. The court of lowest grade who
has a jurisdiction with regards to pecuniary value shall deal with the case at
first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court unless it prima facie
appears to the court that the valuation was not done correctly.  When the
court finds that the valuation was either done overvalued or undervalued,
then the valuation will be done by the Court and the court will direct the
party to approach the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the
amount for which decree is passed.
Lets us understand from an example, if the court has a pecuniary jurisdiction
of Rs 15000 and the suit for recovery of accounts is filed on the valuation of
suit done by the plaintiff. The valuation was of Rs 15000. Later the courts
find that Rs 20000 is due, in this case, the court is not deprived of its
jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the

court. But this does not mean that the plaintiff is set free to file for any
arbitrary value and to choose the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of
avoiding the jurisdiction of the appropriate court, the court may require the
plaintiff to prove that valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

 Suits related to immovable property ( Section 16 to 18)

 Suits related to Movable property ( Section 19)
 Other suits( Section 20)
Section 16 states that the suit related to immovable property shall be
instituted where such immovable property is situated.

It talks about the institution of the suit with respect to:-

 Recovery of immovable property with or without profit or rent

 Partition of immovable property
 Foreclosure, sale or redemption in case of charge or mortgage upon
immovable property
 Compensation for a  wrong caused to immovable property
 Determination of any interest or rights related to immovable
property
 Recovery of movable property under attachment or distraint, for all
the above-mentioned purpose.
When the suit is filed for the relief or compensation for wrong caused to
immovable property held by a defendant or any other person on the behalf of
a defendant where the relief can be obtained through his personal
attendance then suits may be instituted in a court within whose local
jurisdiction:-

 the property is situated, or

  the defendant voluntarily and actually resides or carries on business
or personally for gains.
Section 17:-Cases in which the immovable property is situated within the
local limits of the jurisdiction of different courts.

When the suit is filed for obtaining the compensation or relief for the wrong
caused to immovable property situated within the jurisdiction of two or more
courts, the suit may be filed in any court within whose local jurisdiction a
portion of the property is situated. But in respect for the value of subject
matter of the suit, the entire claim is cognizable by such court.

Section 18– A place of an institution when the jurisdiction of courts is

uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of
courts, and any of the courts has satisfied that there is a ground for
uncertainty, record the statement and may proceed with the case to
entertain and dispose of the case. The decree passed by such court will have
the same effect as if the property was situated within the local limits of its
jurisdiction.

In a case where the court taking the cognizance of case does not record the
statement and objection is brought before Appellate or Revisional Court, the
Appellate or Revisional court shall not allow the objections unless it is
satisfied that at the time of institution of suit there was no reasonable ground
for uncertainty as regards to jurisdiction of Court and there has been a
failure of justice.

Section 19– Suits with regard to movable property when Applicable where
the suit is for the wrong caused to the person or property.

Conditions

If the wrong was done within the local limits of the jurisdiction of one
courtand the defendant voluntarily resides or carries on his business or works
for personal gain within the local limits of the jurisdiction of another court
then the plaintiff has an option to file at either court.

Lets us understand through an example.

A, residing in Delhi, beats B in  Bangalore. B may institute the suit either in
Delhi or Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B

may sue A in Bangalore or Delhi.
Other suits to be instituted where defendants reside or cause of action arises
(Section 20) when Applicable when there is a breach of contract or
commercial transactions.

Conditions

If the breach of contract was done or cause of action arises within the local
limits of the jurisdiction of one court and defendant voluntarily resides,
carries on his business or works for personal gains  within the local limits of
the jurisdiction of another court the plaintiff has an option to file at either
court

Example

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his

agent in Bangalore, buys goods from C and requests C to deliver them to
Amarchand Company. C delivers the goods in Bangalore accordingly. C may
sue for the price of goods either in Bangalore where the cause of action
arises or in Hyderabad where D carries on his business.

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

 pecuniary limits
 competence of the executing court with regards to local limits of its
jurisdiction
is not brought in the Court at the first instance, before settlement or in a
case where the issues are settled, then no objection will be allowed by the
Revisional or Appellate Court unless there is a failure of justice.

Non- Applicability

 Territorial jurisdiction
 Pecuniary jurisdiction
In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to
pecuniary or territorial jurisdiction then the decision given by such court will
not be void but will be considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing

(Section 21A)
No suit shall be brought up challenging the validity of decree passed in a
former suit between the same parties or between the parties litigating under
the same title on any ground based on an objection as to a place of suing.