Institution of suits and service of summons (sections 26 to 31, Orders IV and V)

1. Institution of a suit: section 26 and Order IV

Section 26(1): every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Section 26(2), added by the 1999 Amendment with effect from 1 July 2002, requires that in every plaint, facts shall be proved by affidavit.

Order IV rule 1 adds the mechanics:

• The plaint is presented in duplicate to the court or to an officer it appoints (rule 1(1)).
• It must comply with Orders VI and VII so far as applicable (rule 1(2)).
• It is not deemed duly instituted unless it complies with sub-rules (1) and (2) (rule 1(3)).
• The court enters its particulars in the register of civil suits, numbered each year in the order of admission (rule 2).

The date of presentation of the plaint is the date of institution. That date matters for limitation (section 3 of the Limitation Act, 1963), for priority under section 10, and for valuation. A plaint filed in a court without jurisdiction and later returned under Order VII rule 10 is a fresh institution when presented in the proper court, though section 14 of the Limitation Act may exclude the time spent in good faith in the wrong court.

The other “prescribed” modes include an application to sue as an indigent person (Order XXXIII) and a summary suit (Order XXXVII), which begin differently but end in a suit.

Commercial suits. Section 12A of the Commercial Courts Act, 2015 (inserted in 2018) provides that a commercial suit which does not contemplate urgent interim relief shall not be instituted unless the plaintiff first exhausts pre-institution mediation. In Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd., 2022 INSC 841, the Supreme Court held the requirement mandatory, so that a plaint filed in breach of it is liable to be rejected under Order VII rule 11, and made that direction operate from 20 August 2022.

2. Summons: what it is

The Code does not define summons. It is a document issued by the court, under the signature of the Judge or an officer he appoints and the seal of the court, calling on the person to whom it is addressed to appear before the court on a stated day for a stated purpose. Its object is to give the defendant notice of the suit, so that he can answer it; this is the first rule of natural justice, audi alteram partem.

• Section 27. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim, served in the prescribed manner, on a day not beyond thirty days from the date of institution (words added in 1999).
• Order V rule 1(1). The summons calls on the defendant to appear and answer, and to file his written statement within thirty days from service. No summons is needed if the defendant appears at the presentation of the plaint and admits the claim.
• Rule 1(2). He may appear in person, by a pleader able to answer all material questions, or by a pleader accompanied by someone who can.
• Rule 2. Every summons is accompanied by a copy of the plaint.
• Rule 5. The court decides whether the summons is for settlement of issues only or for final disposal; in a Small Cause Court it is always for final disposal.
• Rules 7 and 8. The summons orders the defendant to produce the documents he relies on (those under Order VIII rule 1A), and, if for final disposal, his witnesses.
• Section 31. Sections 27 to 29 apply to summonses to witnesses to give evidence or produce documents.

3. Modes of service

Court service and service by post or courier (rule 9). Where the defendant resides within the jurisdiction, the summons is delivered to the proper officer for service, or to a court-approved courier. It may also be served by registered post acknowledgment due, speed post, approved courier, fax or e-mail, or other means provided by High Court rules, at the plaintiff’s expense (rule 9(3)). If the acknowledgment comes back signed, or the postal article returns with an endorsement that the defendant refused it, the court shall declare the summons duly served (rule 9(5)). Where the summons was properly addressed and sent by registered post AD, the court shall so declare even if the acknowledgment is lost or not received within thirty days.

Service by the plaintiff (rule 9A). The court may permit the plaintiff himself to serve the summons, by personal delivery or by a rule 9(3) mode. If it is refused or cannot be served, the court re-issues it for service by the court.

Personal or direct service (rules 10 to 16).

• Service by delivering or tendering a copy signed by the Judge and sealed (rule 10).
• On each of several defendants (rule 11).
• On the defendant in person wherever practicable, or on his agent empowered to accept service (rule 12).
• On the manager or agent carrying on business for a defendant who resides outside the jurisdiction, in a suit relating to that business; the master of a ship is the owner’s agent (rule 13).
• On the agent in charge of immovable property, in a suit about that property (rule 14).
• On an adult member of the family, male or female, residing with the defendant, where he is absent and not likely to be found within a reasonable time. A servant is not a member of the family (rule 15).
• The person served signs an acknowledgment on the original (rule 16).

Refusal or defendant not found: affixation (rules 17 to 19). If the defendant or his agent refuses to sign, or the serving officer cannot find him after due diligence and there is no one else on whom service can be made, the officer affixes a copy on the outer door or a conspicuous part of the house where the defendant ordinarily resides or works for gain, and returns the original with a report naming the person who identified the house (rule 17). The court examines the serving officer, if his return is not verified by affidavit, and declares the summons served or orders fresh service (rule 19).

Substituted service (rule 20). Where the court is satisfied that the defendant is keeping out of the way to avoid service, or that for any other reason the summons cannot be served in the ordinary way, it orders service by affixing a copy in a conspicuous place in the court-house and on the house where the defendant last resided or worked, or in any other manner it thinks fit. Newspaper publication must be in a daily newspaper circulating in the locality where he last resided (rule 20(1A)). Substituted service is as effectual as personal service (rule 20(2)), and the court fixes a time for appearance (rule 20(3)).

Service outside the court’s jurisdiction and special cases.

• Defendant within the jurisdiction of another court: the summons is sent to that court (rule 21; section 28 for another State, with a translation where the languages differ).
• Defendant in prison: through the officer in charge of the prison (rule 24).
• Defendant outside India with no agent: by post, courier, fax or e-mail to his address abroad (rule 25), or through the channels in rules 26 and 26A.
• Public officer, or servant of a railway or local authority: through the head of his office (rule 27).
• Soldier, sailor or airman: through his commanding officer (rule 28).
• A person whose rank entitles him to the courtesy: a letter signed by the Judge in place of a summons (rule 30).

4. Consequence of non-service

If the summons is not served because the plaintiff failed to pay costs or take steps, the suit may be dismissed under Order IX rule 2; if it returns unserved and the plaintiff does not apply for fresh summons within seven days, under Order IX rule 5. An ex parte decree passed without due service is liable to be set aside under Order IX rule 13 (covered in Unit III).

5. Problem

The process server goes to D’s house three times; D is away on business each time. On the third visit D’s adult son refuses to accept the summons. The server pastes a copy on the door. D does not appear and the court proceeds ex parte. Was service valid?

Issue. Whether affixation after refusal by a family member is valid service.

Law. Order V rule 15 allows service on an adult member of the family residing with the defendant when he is absent and not likely to be found within a reasonable time. Rule 17 allows affixation where the person on whom service may be made refuses to sign, or the defendant cannot be found, with a report naming the identifying witness. Rule 19 requires the court to examine the serving officer where the return is not verified by affidavit, before declaring the summons served.

Application. D was absent and the son was an adult member of the family living with him, so rule 15 applied, and on his refusal rule 17 permitted affixation. The service is good only if the officer recorded the circumstances and the name of the identifying person, and the court then followed rule 19.

Conclusion. If those steps were followed, service is valid and the ex parte order stands. If the report is bare, or the court declared service without examining the officer, D can apply under Order IX rule 13 to set aside the ex parte decree on the ground that he was not duly served.

How this is examined

As essays: “Explain the rules regarding institution of suits” (June 2025) and “Define summons. Explain the modes of service of summons” (January 2025). As a short note: “Summons” (June 2025). The modes question is best answered in the order of Order V, rule numbers stated, ending with substituted service and the special cases.