Summons under CPC

SUMMONS IN A CIVIL SUIT IN BANGLADESH

Z. H. SIKDER UNIVERSITY OF SCIENCE AND TECHNOLOGY Madhupur,Bhedergonj,Shariatpur ASSIGNMENT ON

SUMMONS IN A CIVIL SUIT IN BANGLADESH COURSE CODE COURSE TITLE

: :

LAW 232 CODE OF CIVIL PROCEDURE ( PART II)

DEPARTMENT OF LAW

SUBMITTED BY STUDENT’S NAME STUDENT’S ID BATCH DEPARTMENT

: TAWHIDUR RAHMAN MURAD : 140314024 : :

8th LAW

SUBMITTED TO SUPERVISOR DESIGNATION

: DR. MD. EMRAN PARVEZ KHAN : PH.D IN LAW[ANU,USA] ASSOCIATE PROFESOR

DEAN

FECULTY OF HUMANITIES AND SOCIAL SCIENCE& CHAIRMAN

SUMMONS IN A CIVIL SUIT IN BANGLADESH

DEPARTMENT OF LAW

ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher Dr.Md.Emran Pervez Khan who gave me the golden opportunity to do this wonderful Assignment on the topic “SUMMONS IN A CIVIL SUIT IN BANGLADESH” Under the Code of Civil Procedure, 1908.which also helped me in doing a lot of Research and I came to know about so many new things I am really thankful to his. And also thanks to give me extra time for make my assignment. I also wish to express my special thanks of gratitude to my teacher Ifti Hasan Imran for helping me to make my assignment. Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this assignment within the limited time frame.

Tawhidur Rahman Murad

SUMMONS IN A CIVIL SUIT IN BANGLADESH

CONTENTS SN 1.1 1.2 1.3 1.4 1..5 1.6 1.7 1.8 1.9 2. 2.1 2.2 2.3 2.4

Chapter I – Introduction Introduction Institution of suit Parties to suit Summons under the statutory law of Bangladesh Meaning and definition of Summons Importance of Service of Summons Object of issuing Summons Essentials of summons Purpose of Summons Issue and Service of Summons Summons to the defendant Appearance in person Exception from appearance in person Content of Summons

PAGE NO. 01 01 02 02 02-03 03 04 04 04-05 05 06 06 06 06

Chapter II - Service of Summons 2.5 2.6 2.7 2.8 2.9

Service of Summons Personal or Direct Service Extended Service Substituted Service Postal service

07 07 08-09 10 10-11

Chapter III - Summons in Special Cases 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 4. 4.1 4.2 4.3

Service by affixing without an order of the court Service by registered post in addition to personal service Delivery of summons to the plaintiff or his agent. Simultaneous issue of summons for service by the court-controlled process Service where defendant resides within the jurisdiction of another court Service within Presidency Towns of summons issued by Courts outside. Service on defendant in prison Service where defendant resides out of Bangladesh and has no agent Service in foreign country through Political Agent or Court Summons to be sent to officers of foreign countries. Service on Civil Public Officer Service on soldiers or sailors or airman Substitution of letters for summons

12 13 14 14-15 15 15 15 16 17 17 18 18 18

Chapter IV – Conclusion 4.4 4.5 4.6 4.7

Ground of Ex parte decree for summons Difference between Summons and Warrant Compare of summons with Australia, UK & USA Problems of the service of summons in Bangladesh

19 20 21-22 23

SUMMONS IN A CIVIL SUIT IN BANGLADESH

4.8 4.9

Recommendation Conclusion

24 25

Chapter 1 – Introduction

1.1 Introduction Order V of the Code of Civil Procedure, 1908 in Bangladesh is based on this principle that no one should be condemned unheard when the suit is instituted against the defendant the court is bound to serve the summons to defendant for appearing before the court. In fact, the Code of Civil Procedure, 1908 provided procedural rules to administer trial of civil suit from its institution till its conclusion. After filing of suit, it becomes necessary for that party, which files suit, to serve summon son opponent party. A summon is a legal document that is issued by a Court on a person involved in a legal proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a witness in a proceeding, to call upon such person and ensure his presence on the given date of the proceeding, summons are served. A summon is served when a suit has been initiated by the plaintiff against the defendant, the court directs to issue summons to the defendant as this ensures a fair trial. If the summons is not duly served then no action can be taken against the defendant. 1 To constitute a summons a copy of the plaint must be accompanied with it. Mohammadullah vs Shamsul. 2003 BLD 414: 55 DLR 428. 1.2 Institution of suit Section 26 of the Code of Civil Procedure, 1908 says that every suit must be instituted by presentation of a plaint or in other prescribed manner. In every plaint, the facts must be proved by affidavits. Plaint is a private memorial submitted to court in writing in which the person presents his cause of action. Only the person who has got cause of action or his authorized representative can institute a suit.2Suit must always be instituted by the presentation of the plaint only, and hence any civil proceeding commenced by means of an 1 Torab Ali and Others Vs. Madris Ali Saha and Others, 2015, 44 CLC (HCD) 2 Assan v. Pathumma

SUMMONS IN A CIVIL SUIT IN BANGLADESH

application or otherwise does not become a suit. As per Order V, Rule 1, the plaint must be submitted in duplicate to the court. Further every plaint must comply with the rules contained in Order VI and VII. The plaint must show in what capacity the plaintiff sues the defendant. While submitting the plaint, the Court fee for the service of the plaint along with the summons must be paid. Copy of the plaint is an integral part of the summons to constitute a summons within the meaning of the provisions of the Code plaint must be accompanied with the summons either it be served by the process server or by registered post.3 1.3 Parties to suit Rule 1 to 3 of Order I of the Code of Civil Procedure,1908 deals with Parties to suit. For institution of a suit, there must be two parties, a subject in dispute, cause of action and demand of relief. A suit is instituted by the presentation of a plaint to the court. The plaint should set out the name of the plaintiff,(if there are more than one plaintiff, the names of every plaintiff) and the name of the defendant(and if there are more than one defendant, the names of every defendant) 1.4 Summons under the statutory law of Bangladesh Section 27 and Order V of the Code of Civil Procedure, 1908 deals with the service of summons to the defendant when subject matter of the suit is civil nature and in the Code of Criminal Procedure, 1898 from section 61 to 69 deals with the topic of summons when subject matter of the case is criminal nature. 1.5 Meaning and definition of Summons In Bangladesh the term summon has not been define in the Code of Civil procedure, 1908But the intimation which is sent to defendant by the court is technically known as Summon. According to the dictionary meaning4, A Summon is a document issued from the office of a Court of Justice, calling upon the person to whom it is directed to attend before a Judge or officer of the Court for a certain purposed. No such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim. A summons has been issued; the Court may direct the defendant to file the written statement of his defense, if any, on the date of his appearance and cause an entry to be made to that 3 Moiammadullah vs Md 55 DLR 428 4 Earl Jowett, The Dictionary of English Law, 1972

SUMMONS IN A CIVIL SUIT IN BANGLADESH

effect in the summons. In all other cases Summon must be issued and served to defendants. A summons is an official document which requires a person to give evidence at a Tribunal hearing or to produce documents or things to the Tribunal. The term once used to describe such a document was ‘subpoena’. According to the Black's Law Dictionary In practice. To serve a summons ; to cite a defendant to appear in court to answer a suit which has been begun against him; to notify the defendant that an action has been Instituted against him, and that he is required to answer to it at a time and place named.5 In Foreign country Legally, a summons (also known in England and Wales as a claim form and in the Australian state of New South Wales as a Court Attendance Notice (CAN)) is a legal document issued by a court Finally we can say that when an individual (the “plaintiff”) files a complaint initiating a lawsuit against another party (the “defendant”), he is legally required to inform that party that he has done so. The summons provides the defendant with the identity of the court in which the lawsuit has been filed, identifies all of the parties involved in the lawsuit, and bears the signature and official seal of the court clerk. The summons is served with the complaint on the defendant, at which point the lawsuit officially begins. 1.6 Importance of Service of Summons6 The importance of service of summons, in whatever way it may be effected, is that the defendant may be informed of the institution of the suit in due time before the date fixed for the hearing and to extend him an opportunity to resist the suit where the defendant is not served with summons, the mere fact that he had no knowledge of the suit is immaterial. There are some important of service of summons7. These are following: 

It is a fundamental rule of procedure.

5 Black's Law Dictionary 6 4.Md. Abdul Halim: Text Book on Civil Procedure,p.109 7 Abdul Hamid Chowdhury (Iqbal) and Others Vs. Artha Rin Adalat and Others, 2015, 44 CLC (HCD)

SUMMONS IN A CIVIL SUIT IN BANGLADESH



A party must have a fair and reasonable notice of the legal proceedings initiated



against him, so that he can defend himself. It may be issued to the defendant to appear and answer the claim and may be served

 

in manner prescribed. A summons may be sent by the court by which it is issued. In every suit heard by a Court of small Causes, the summons shall be for final disposal of the suit.

1.7 Object of issuing Summons When plaintiff files a suit against the defendant and a claimed relief is claimed and the defendant must give an opportunity must be given to defendant to say against the prayer which plaintiff has claimed against the defendant. According the natural justice rule “audi alteram patterm” no one should be unheard to this rule the object of summons is created that if the a suit if filed against the defendant he should be not left un heard from the claims which plaintiff has raised against the defendant hence it says no one should be condemn of hearing.8 1.8 Essentials of summons9 1) The summons may be issued to the defendant to issue to the defendant to appear and answer the claim and to file a written statement within 30 days from the date of service of summons on him .The defendant has now to file the written statements within 30 days of service of summons and in case of defendant is not able to file against 30 days the court is given a discretion to allow the defendant to file the written statement within a maximum period of 90 days for which the court have to give reasons in writing every summon should be signed by the judge or the officer appointed by court and shall be sealed,10 2) Without a copy of the plaint no summons is valid. If the summons is not accompanied by a copy of the plaint or (where so permitted) a copy of the concise statement, it is not a valid service.11 However when the defendant was not showing any interest to receive a copy of the 8Aid Advice vs. Bar Council of India 1995 9 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014 at p. 251. 10 Suresh Chandra vs Gosaidas

AIR 1976 Cal 87

11 Laxmi vs keshrimal jain AIR 1995 MP 178

SUMMONS IN A CIVIL SUIT IN BANGLADESH

plaint on the date fixed for supply of copy or on any other date thereafter a plea that the summons must be accompanied with the plaint is not entertain able12 . 1.9

Purpose of Summons  Attendance of witness13

The defendant is also to be directed to produce his witness too, on the date fixed for his appearance14 with the evidence or documents or other material objects. Court may require personal attendance of the parties where it sees reason.15  For settlement of issue and final disposal of suits16 Though this mandatory in terms it has been construed as directory. Therefore the omission to follow the prescription laid down in this rule does not invalidate the summons and the service of a composite writ is due service17as a general rule summons for final disposal of suits should be issued only in simple cases.18 2. Issue and Service of Summons Who hos served the process. Forms of summons (Nos.l-3) or Appendix-B in the First Schedule. Ordinarily personal attendance of either or both of the parties is not ordered and it is ordered only in two cases, (i) where the court sees reason to require personal attendance (Order V, R.3) and where his pleader or the person accompanying the pleader refuses or unable to answer any material question Relating to the suit. (Order X, R.4). 12 Lakpa Sherpa v Tempa Sherpa AIR 1997 Sikkim 13 Order V rule 8 14 Sudrershan devi vs SushilaDevi (1999)4 LRI 993 15 Durtlsitvs Sakina 4 BLC (AD) 68;

16 Oder 5 rule 5 17 Narendranarh v amiya choudhary AIR 1959 Cal 231 overrulling mader khan vs Kaiser ali (1958)62 cwn 718 18 (1914) ILR 38 bom 377,380,24 ic 665

SUMMONS IN A CIVIL SUIT IN BANGLADESH

 Every summons shall be served by a police officer, or by an officer of the court issuing it or any other public servant.  The summons shall if practical, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.19  Every person on whom summons is served shall sign a receipt on the back of the other duplicate. 2.1

Summons to the defendant

When a suit has been duly filed by presentation of a plaint, the Court must issue Summons to the defendant calling upon him to appear and answer the claim of the plaintiff by filling a written statement within thirty days from the date of service of Summons. 20 No summons, however, will be issued by the court if, at the time of presentation of plaint, the defendant is present and admits the plaintiff’s claim21.

2.2 Appearance in person22 Under the rule 3 deals that a defendant to whom a summons has been issued under sub-rule (1) may appear In person, or  By a pleader duly instructed and able to answer all material questions relating to the suit, or  By a pleader accompanied by some person able to answer all such questions. The court, however, may order to defendant or plaintiff to appear in person. 2.3 Exception from appearance in person23 19 Whether This Case Involves A ... vs State Of Gujarat & on 24 March, 2017 20 Immam Hossain Sawdagor and others Vs. Abul Hashem and others, 2015, 44 CLC (AD) 21 section 27; Order v Rule 1 22 Rule 3 of order V 23 A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007)p.333

SUMMONS IN A CIVIL SUIT IN BANGLADESH

No party shall be ordered to appear in person: Unless he resides (a) Within the local limits of the court’s or dinary original jurisdiction. (b) Outside such limits, but at a place less than 50 miles; or 200 miles (where public conveyance is available) from the courthouse.  Who is a woman not appearing in public, or  Who is entitled to exemption under the code. 2.4 Content of Summons24 The summons must contain a direction whether the date fixed is for settlement of issues only or for final disposal of the suit. In the letter case, the defendant should be directed to produce his witness. The Court must give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed. The summons should also contain an order to the defendant to produce all documents or copies thereof in his possession or power upon which he intends to rely on in support of his case25.

Chapter 2 - Service of Summons 2.5 Service of Summons The service of summons is of primary importance as it is a fundamental rule of law of procedure that a party must have a fair and reasonable notice of the legal proceedings initiated against him so that he can defend himself. In Bheru Lal v. Shanti Lal, it was held that an objection as to service of summons should be raised at the earliest possible opportunity. If it is not taken at that stage, it is deemed to have been waived. The problem of service of summons is one of the major causes of delay in the progress of the suit. It is common knowledge that defendants try to avoid service of summons. The Law commission considered the problem and it was felt that certain amendments were necessary in that

24 Idib 25 section 27, rule 5-8, order 5, of the code of civil procedure, 1908

SUMMONS IN A CIVIL SUIT IN BANGLADESH

direction and a defendant can be served by a plaintiff or through modern means of communication. Accordingly, amendments were made in the court.26 The object of the service of a summons, in whatever way it may be effected (other than substituted service to which other consideration apply),is that the defendant may be informed of the institution of the suit in due time before the date fixed for the hearing and to extend him an opportunity to resist the suit 27. Where the defendant is not served with summons the mere fact that he had knowledge of the suit is immaterial28. 2.6

Personal or Direct Service

The service of summons may be made by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to the defendant or to his agent empowered to accept the service or by speed post or by such courier service as are approved by the High Court or by fax or electronic mail service. These types of services shall be made at the expenses of the plaintiff. The court may also permit services of summons by the plaintiff in addition to service of summons by the court. R. 9A talks about the summons given to plaintiff for service. In Salem Advocate Bar Association (II) v. Union of India,

the court was of

opinion that though there can be no objection in giving an opportunity to the plaintiff to serve summons on the defendant, there should be sufficient safeguards to avoid false report of service of summons. High Court should make appropriate rules or issue practice directions to ensure that the provisions are properly implemented and there is no abuse of process of law. Where personal service or service on a male member of the family is not possible, leave of the court should be taken to effect substituted service. District Board vs Sarafat. 3 DLR.l17. The peon's statement in the returns that finding the defendant absent and he being in Dhaka for business he served the notice on his brother as agent is not a proper service29' or in another case on the respondents mother since she was not his authorized agent.30

26 Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014 at p. 255. 27 Bhomshetti vs Umabai (1897) ILR 21 BOM 223 225 28 Bengal chand and co vs Durga Shankar Gowri Shankar 29 Emdad vs ' Habib. 21 DLR 747 30 12 BLC (AD)

SUMMONS IN A CIVIL SUIT IN BANGLADESH

2.7 Extended Service Where no attempt is made to find the defendant and the summons is served. The inquiry as to the where about of the defendants must not be perfunctory 31. A person who does not reside within the local jurisdiction of thecourt will be bound by the service of notice on his manager or agent. Commissioner vs ldris' 19 DLR (SC) 170.Service of notice on a boy who is not an adult is not valid32The agent's authority to accept summons must be in writing. Hazari vs Daiba' 26 DLR 3. Service of notice on the husband of the defendant is not valid service under this rule unless it is shown that the conditions mentioned in the rule were satisfied 33. When summons intended for a pradanashin lady tendered to a male member of the family who was separate it was held not be sufficient34.if a pardanashin lady could not be found and adult members refuse to accept service , copy of notice can be affixed on the front door in the presence of witness

35

S.

27 of the Code of Civil Procedure, 1908, Summons to defendants.- Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed [on such day not beyond thirty days from date of the institution of the suit]. The words ‘on such date not beyond thirty days from the date of the institution of the suit’ do not mean that the summons must be served within thirty days of the date of the institution of the suit. The words added by amendment, fix outer time frame, by providing, that steps must be taken within thirty days from the dare of the institution of the suit, to issue summons. In other words, if the suit is instituted, for example, on 1st Jan, 2002 then the correct addresses of the defendants and the process fee must be filed in the court within thirty days so that summons be issued by the court not beyond thirty days from the date of the institution of the suit. The object is to avoid long delay in issue of summons for want of steps by the plaintiff.

31 Bharam Chand vs

Kanak (1921) 26 CWN 359,68 IC 991 AIR 1921

32 BDB Prasad vs Bank of India AIR 1995 MP 234 33 Eravi Pillai Vs Maluk Mohammad 1953 ILR 34 Labanga dibya vs Prahlad Patri

Tr & Co 405 AIR 1953

1960 ILR Cut 522

35 Mehtab Bai vs Mst motan bai 1960 ILR 10 Raj 1088

SUMMONS IN A CIVIL SUIT IN BANGLADESH

It is quite evident that if all that is required to be done by a party, has been performed within the period of thirty days, then no fault can be attributed to the party. Order V of the Code of Civil Procedure,1908 deals with summons to defendant. When a suit has been duly filed by presentation of a plaint, the courts must issue summons to the defendants calling upon him to appear and answer the claim of the plaintiff by filing a written statement within thirty days from the date of service of summons and such summons issued by the court must be accompanied by the copy of the plaint. Such procedure has been duly provided for in rule 1 and 2 of Order V. The peon's statement in the returns that finding the defendant absent and he being in Dhaka for business he served the notice on his brother as agent is not a proper service' Emdad vs ' Habib. or in another case on the respondents mother since she was not his authorised agent.36 In Karnail Singh v. Dina Nath, it was said that it is the requirement of law that summons must be accompanied by the copy of the plaint and unless it is done, mere presentation of summon without copy is no service. Hence, if the plaint was not presented along with the summons, it cannot be said that there was due service. ‘Due Service’ means service of summons along with the plaint. Word ‘due’ has not been superfluously used by the legislature but attachment of copy of complaint or concise statement thereof along with summons is mandatory.37 In another case of Sneh Gupta v. Devi Sarup, summons were served on the party after the date fixed in the suit had expired. The Supreme Court held that the court, in this situation, had a legal obligation to serve another summons fixing another date of hearing in terms of order V rule 2 of the CPC. 2.8 Substituted Service38 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 reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy 36 21 DLR 747 37 Ibid 38 Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 555

SUMMONS IN A CIVIL SUIT IN BANGLADESH

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. Service may be ordered to be effected by publication in a local daily newspaper. Service substituted by order of the court shall be as effectual as if it had been made on the defendant personally. it is not service in the ordinary sense of the word . its is a artificial proceeding upon a fiction imported by necessity. Further , it should be effected as a last resorts to it all the conditions laid down for it must be fulfilled39 and an application for substituted service should not be allowed automatically40 .service by publication should be ordered when the court is satisfied that personal service is not possible41. Where the plaintiff knew the where about of the defendant and in spite of the fact, obtained by a false representation an order for substituted service by giving the court to understand that the defendant had been deliberately avoiding service it was held that the defendant had not been properly served42. Where the order for substituted service was made on the representation that the defendant has been residing at a particular place when as a matter fact the defendant never resided there for sometime past and on such representation the court was induced to hold that the substituted service was properly effected the service was held not to be proper 43 is cast on the court to summon the defendant and for that purpose to pass appropriate orders under under the code the duty is cast on the court to summon the defendant and for that purpose to pass appropriate orders under the rules no duty is cast on the plaintiff to take the summon him 44

self and to serve it on the defendant.

45

In a proper case there may be substituted service by

proclarnation in newspapers of long standing Mir vs Pir.

39 Johri lal vs income tax commissioner AIR 1967 All 170 40 Yallawwa vs Shantavva 1997 2 SCC 159 41 Advertising service vs The Hindustan times ltd AIR 1998 Del 14 42 Tarachand vs Santokh 1935 153 IC 80 AIR 1935 lah 129 43 Kedar v wazifunnessa 1934 60 Cal LJ 106 44 Mahbudul Islam: Law of Civil Procedure, ed.2nd , Volume 2 (or 21r. 60 to end)p.432 45 Jai hind timber depot vs

Gian Chand AIR 1954 Punj 174

SUMMONS IN A CIVIL SUIT IN BANGLADESH

2.9Postal service46 When an acknowledgement purporting to be signed by the defendant or his agent is received by the court or defendant or his agent refused to take delivery of summons when tendered to him, the court issuing the summons shall declare that the summons had been dully served on the defendant. A summons sent by registered post and returned with the endorsement "refused" is a good and valid service. Shahab vs Abdu. 52 DLR 305. Summons sent by registered post with acknowledgment receipt due would be considered duly served even if acknowledgment is lost or mislaid or not received by the Court. Abdur vs Shahabuddin 12 BLC (AD) 118. Same procedure is followed where summons was properly addressed, prepaid, and duly sent by registered post, acknowledgement due and the acknowledgement is lost or not received by the court within 30 days from the date of issue of the summons. Where the summons sent by registered post is retuned with an endorsement refused, the burden is on the defendant to prove that the endorsement is false. Under Order V Rule 10-A of the Code of Civil Procedure,1908, a copy of summons would be sent by registered post. A summons sent by registered post and returned with the endorsement "refused" is a good and valid service. Shahab vs Abdu. 52 DLR 305. ' A' notice on a corporation may be served on the Secretary or on the Director or other principal officer at the Registered Office. But service by hanging the notice on the outer dwelling of the Manager-incharge is no service' Mahaluxmi Bankvs Mohammad. 20 DLR 983 Summons sent by registered post with acknowledgment receipt due would be considered duly served even if acknowledgment is lost or mislaid or not received by the Court. Abdur vs Shahabuddin 12 BLC (AD) 118.A bare perusal of Order V, Rule 9, CPC clearly shows that service through process of court is mandatory. Summons to defendant residing within or outside the jurisdiction of the court shall be served through court officer or approved courier service or various other means such as registered post, speed post, fax, acknowledgment due, etc. Further, summons is presumed to be served if it does not back within thirty days from the date of issue. Subodh S. Salaskar v. Jayprakash M. Shah, 2008(3) RCR(Civil) 905 SC.

46 Ibid

SUMMONS IN A CIVIL SUIT IN BANGLADESH

In M. G. Dua v. Balli Mal Nawal Kishore, it was held that summons can be sent by registered post only in the first instance. If any other mode of service is tried in the first instance and if it fails to yield any fruitful result, it is not open to courts to endeavor to effect service on the defendants by registered post. R. 9 also states that where the defendant refuses to accept the summons, he is deemed to have been served. Similarly, where an acknowledgement or receipt purported to have been signed by the defendant is received by the court that the defendant has refused to take the delivery of the summons, the court will proceed treating the defendant as served. In the matter of Mst. Bhabia Devi v. Permanand Pd. Yadav, the ex parte decree was held to be rightly passed where the defendant refused to put her sign or thumb impression on summons when they were handed to her and she also refused to acknowledge the registered service.

Chapter III - Summons in Special Cases There are many type cases where summons cannot be served ordinarily or via any other procedure as described above. For such type of cases S. 28-29 and Order V, Rules 21-30 of the Code can be dealt with. To study them clearly, they have been categorized into various categories as discussed below. 3.1 Service by affixing without an order of the court47 Order V, Rule 17 of the code of Civil Procedure, 1908 deals with Service by affixing a copy of summons on defendant’s house without an order of the court (a) Where the defendant or his agent or in their absence an adult member of the family refuses to sign the acknowledgment, or (b) where the serving officer, after using due diligence, cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and within a reasonable time and there is no such other person on whom service 47 ibid

SUMMONS IN A CIVIL SUIT IN BANGLADESH

can be effected, 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 then shall return the original to the court from which it was issued, with a report endorsed thereon 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. If the court is satisfied it declares the service to have been duly effected.

3.2 Service by registered post in addition to personal service48 Order V, Rule 19-A of the code of Civil Procedure, 1908 deals with Service by registered post in addition to personal service. The court shall, in addition to, and simultaneously with the issue of summons for service also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain. The court, however, shall not issue a summons for service by registered post, where, in the circumstances of the case, it considers it unnecessary. When an acknowledgment purporting to be signed by the defendant or his agent is received by the court, or the postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered 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, prepaid 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 the issue of the summons. 3.3 Delivery of summons to the plaintiff or his agent.49

48 Ibid

SUMMONS IN A CIVIL SUIT IN BANGLADESH

Order V, Rule 9 of the code of Civil Procedure, 1908 deals with Delivery of summons to the plaintiff or his agent. (1) The court shall issue summons and deliver the same to the plaintiff or his agent, for service, and direct the summons to be served by registered post, acknowledgment, due or by speed post or by such courier service as may be approved by the High Court or by fax message or by Electronic Mail Service by such other means as the High Court may prescribe by rules, addressed to the defendant to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. (2) The plaintiff or his agent shall send the summons by any means as directed by the court under sub-rule (1) within two days from the delivery of summons to the plaintiff by the court under that sub-rule. (3) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent received by the court or postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee or by any authorised person to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or refused to accept the summons by any other means specified in sub-rule (1), 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 summons was properly addressed, pre-paid and duly send 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 misled or for any other reasons has not been received by the court on the date fixed by it. 3.4 Simultaneous issue of summons for service by the court-controlled process.50 Order V, Rule 9 of the code of Civil Procedure,1908 deals with Simultaneous issue of summons for service by the court-controlled process. (1) The court may, in addition to and simultaneously with the delivery of summons for service to the plaintiff as provided in the manner provided in Rule 9, may also direct that 49 Order V, Rule 9 of the code of Civil Procedure, 1908 50 Order V, Rule 9

SUMMONS IN A CIVIL SUIT IN BANGLADESH

summons to be served on the defendant or his agent empowered to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. (2) The summons shall, unless the court otherwise directs, be delivered or sent to the proper officer in such manner as may be prescribed by the High Court to be served by him or one of his subordinates. (3) The proper officer may be an officer of the 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. (4) The proper officer may serve the summons by registered post acknowledgment due, by speed post, by such courier service as may be approved by the High Court, by fax message, by Electronic Mail Service or by such other means as may be provided by the rules made by the High Court. 3.5

Service of summons where defendant resides within the jurisdiction of another

court.51 Order V, Rule 11 of the code of Civil Procedure, 1908 deals with Service of summons where defendant resides within the jurisdiction of another court A summons 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 Court, to any court (not being the High Court) having jurisdiction in the place where the defendant resides. 3.6 Service within Presidency Towns of summons issued by Courts outside.52 Order V, Rule 22 of the code of Civil Procedure, 1908 deals with Service within Presidency Towns of summons issued by Courts outside. Where a summons issued by any court 51 Order V, Rule 11 52 Order V, Rule 22

SUMMONS IN A CIVIL SUIT IN BANGLADESH

established beyond the limits of the towns of Calcutta, Madras 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. 3.7

Service on defendant in prison.53

Order V, Rule 22 of the code of Civil Procedure, 1908 deals with Service on defendant in prison. Where the defendant is confined in a prison, the summons shall be delivered or sent 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 Court, to the officer-in-charge of the prison for service on the defendant.

3.8 Service where defendant resides out of Bangladesh and has no agent Order V, Rule 25 of the code of Civil Procedure, 1908 deals with Service where defendant resides out of Bangladesh and has no agent. Where the defendant resides out of India and has no agent in India empowered to accept service, the summons shall be addressed to the defendant at the place where he 1s residing and sent to him 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 Court: Provided that where any such defendant resides in India or Pakistan, the summons together with 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 in Bangladesh or Pakistan (not belonging to 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 in the Official Gazette, specify, in this behalf.

53 Order V, Rule 22

SUMMONS IN A CIVIL SUIT IN BANGLADESH

3.9

Service in foreign country through Political Agent or Court54

Order V, Rule 26 of the code of Civil Procedure, 1908 deals with Service in foreign country through Political Agent or Court. (a) in the exercise of any foreign jurisdiction vested or a court has been established or contained, with power to serve a summons, issued by a Court under this Code, in any foreign country 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 but the purpose of being served upon the defendant, and, if the Political Agent or Court return 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. 4. Summons to be sent to officers of foreign countries55 Order V, Rule 27 of the code of Civil Procedure, 1908 deals with Summons to be sent to officers of foreign countries. Where the Central Government has by notification in the Official Gazette, declared in respect of any foreign territory that summons 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 that 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 returns any such

54Order V, Rule 26 55 Mulla, The Code of Civil Procedure, 17th ed., LexisNexis Butterworths Publications, 2007 at p. 556

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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. 4.1

Service on Civil Public Officer or on servant of Railway Company or local

authority56 Order V, Rule 28 of the code of Civil Procedure, 1908 deals with Service on Civil Public Officer or on servant of Railway Company or local authority. Where the defendant is a public officer, officer (not belonging to the Indian military, navel or, air force) 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 copy to be retained by the defendant.

4.2 Service on soldiers or sailors or airman57 Order V, Rule 29 of the code of Civil Procedure deals with Service on soldiers or sailors or airman, where the defendant is a soldier, sailor or airman, the court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant. 4.3 Substitution of letters for summons Order V, Rule 30 of the code of Civil Procedure deals with Substitution of letters for summons. (1) The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a letter signed by a 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.

56 Order V, Rule 28 57 Ibid

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(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated to a summons, and subject to the provisions of sub-rule (3) shall be treated in all respect 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. Chapter IV- Conclusion 4.4 Ground of Ex parte decree for summons After the plaintiff is adjudged a pauper and the suit if registered, a summons must be served upon the defendant without which a decree passed ex parte is illegal. Punjab vs Kanwar 10 DLR (SC) 14

i.

Irregularity in Serving Summons

The Supreme Court in Sushil Kumar Sabharwal v. Gurpeet Singh held that non-service of summons is a ground for setting aside an ex parte decree. The service of summons to the party cannot be a mere formality but should, in fact, be reality. In Naresh Chandra Agarwal v. Bank of Baroda the appellant application for setting aside an ex parte decree was rejected by Trial Court and subsequently by the High Court as it considered the validity of notice of substitution sent to the permanent residential address rather than his actual present residence. The plaintiff admitted in his affidavit that the appellant was working in some other place at the relevant time. In appeal the Supreme Court has set aside the decree as it considered that summon was not served in reality. In Rabindra Singh v. Financial Commr. Coop., an ex parte decree was passed against the defendant who was residing in foreign country for the past 25 years and has never received any notice though the plaintiff had knowledge of his correct address. Summons were effected to the village address. The Court held that ex parte decree

SUMMONS IN A CIVIL SUIT IN BANGLADESH

passed in the event of non-appearance of the defendant without providing an opportunity of hearing to him caused prejudice to defendant and it is against the principles of natural justice. When seeking remedy against an ex parte decree the Court before exercising its discretion should satisfied that summons were not proved to be served duly. ii.

Refusal to Accept Summons

If the applicant refuses to accept the notice and pleads for setting aside the ex parte decree on the ground of absence of notice cannot be entertained. However, if the defendant did not accept summons bona fide on the grounds of misdescription, even though the service is held to be good, the ex parte decree passed as a result can be set aside. iii.

Non- Service of Summons

Mere non-service of summons is not a ground in itself to set aside an ex parte decree on the grounds of fraud but fraudulent suppression of summons is. In A.C. Ananthaswamy v. Boriah there was a bare allegation of fraud. Moreover, no allegation of fraud was made in the two proceedings prior to this appeal. The question before the Court was whether non –service of summons amount to fraud. The court said a suit for setting aside an ex parte decree on mere non-service of summons is not maintainable. If the Court rejects the defendant application for setting aside the decree under Order IX Rule 13 on the grounds of fraud in case of non-service of summons upon him subsequent regular suit for setting aside on the same fraud is barred due to application of res judicata. 4.5 Difference between Summons and Warrant58 • A warrant is an official authorization which gives the power for law enforcement officials to engage in an activity. • A warrant can be an arrest of a suspected individual, searching of premises or else bringing an individual to court. • A summons, on the other hand, is also an official request made by a court for an individual to be present on a specific date and time to inquire after charges that have been made.

58 lawhelpbd.com/article/summons-vs-warrant/

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• The main difference between summons and warrant is that while a warrant gives authority for law enforcement officials to perform an action, a summons requests of the individual to be present for an inquiry. • If an individual ignores the summons then the next step would be the issue of a warrant. 4.6 Compare of summons with Australia, UK & USA In Bangladesh Summons is an important subject matter for any civil suit under the Code of Civil Procedure,1908.59 When the plaintiff files a suit, the defendant has to be informed that the suit, the defendant has to be informed that the suit has been filed against him, and that he is required to appear in the court to defend it. The intimation which is sent to the defendant by the court is technically known as ‘Summons’. Although the term ‘ Summons” has not been defined in the code, a summons is a document issued from the office of a court of Justice, calling upon the person to whom it is directed to attend before a Judge or officer of the Court for a certain purpose. With the provision in Rule 1 of Order V where it is stated that no summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim. In all other cases summons must be issued and served to defendants. Australia In the Australian state of New South Wales (NSW) the service of a Court Attendance Notice can be issued in a number of ways, the most common of which is by the NSW Police Force when charging someone after an arrest is made, a Bail Court Attendance Notice (with bail conditions) or regular Court Attendance Notice is issued. Other methods the Police use include via a paper form called a Field Court Attendance Notice (Field CAN) which is issued to the accused person on the spot after an offence has been detected. Or by way of a Future Court Attendance Notice (Future CAN), which replaced the old court issued summons and is served in person by Police or sometimes by mail. In all of these cases the CAN is filed at the court after it has been served.60 United Kingdom 59 Order V of the Code of Civil Procedure,1908 60

Weatherburn, Don; Fitzgerald, Jacqueline (2015).

SUMMONS IN A CIVIL SUIT IN BANGLADESH

Historically, in old English law, a summons was called an auxilium curiae, although this term is now obsolete.61 In England and Wales, the term writ of summons for the originating document in civil proceedings has been replaced with the term claim form by the Civil Procedure Rules,1999 (CPR). This is part of the reforms to simplify legal terminology. However, despite its name, the claim form does not present the details of the claim itself (in other words, it does not replace the complaint). The complaint is now known as the particulars of claim.62 In criminal matters, either a requisition, summons or warrant is issued to initiate criminal proceedings. A summons issued by the Leicester Magistrates' Court against Russell Finlay for a charge of common assault by beating. Signed by District Judge (Magistrates' Courts) Sally Fudge. This is a summons for a private prosecution.

United States In most U.S. jurisdictions, the service of a summons is in most cases required for the court to have jurisdiction over the party who is being summoned.63 The process by which a summons is served is called service of process. The form and content of service in the federal courts is governed by Rule 4 of the Federal Rules of Civil Procedure, and the rules of many state courts are similar. The federal summons is usually issued by the clerk of the court. In many states the summons may be issued by an attorney, but some states use filing as the means to commence an action and in those states the attorney must first file the summons in duplicate before it becomes effective; one or more copies are stamped by the court clerk with the court seal and returned to the attorney, who then uses it to actually serve the defendants. Other 61 Black's Law Dictionary 62 UK Civil Procedure Rules 1998 63 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).

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jurisdictions may only require that the summons be filed after it is served on the defendants. 64 New York is distinguished by its permissive filing system, in which the summons or complaint need not be filed at all. 4.7 Problems of the service of summons in Bangladesh Rule 15 of Order V says that in the absence of the defendant, service may be made on any adult male member of the family. Under this rule even the wife of the defendant cannot legally receive summons. However, the wife of the defendant or any adult female member is likely to be available at home when summons has to be served during working hours. The ineligibility of the female to receive summons delays the process of its service as the process server has to return the summons no served, if the defendant or any adult male member of his family is not available. This rule is also discriminatory against women, and there is no reasonable ground for its existence to-day.Service by post includes only government institutions responsible for postal service. However, the courier service may be considered for inclusion as this kind of service has become popular and trustworthy. The District Judge of each district can be empowered by the law to make a list of agents of such courier service available in his particular district. The courier service can be approved as an alternative to government postal service. The other alternative service may also be fax message or electronic mail (e-mail). This is very useful where the defendant is an employee/employer in a public or private organization or business enterprise or resides in places outside the jurisdiction of the court. The soft copies of plaint or petition can also be served along with the process in this way. Courier service and service through fax and e-mail has already been recognized in Bangladesh by the Code of Civil Procedure, 1908. The advantage of fax, e-mail and courier service is that these services will be made at the expense of the plaintiff and he will be responsible to make the service on his own initiative. Thus it will ease the workload of the process-servers as well as the courts, and will at the same time expedite the service. Another aspect is that it will reduce the scopes for malpractices in the service of summons. 4.8 Recommendation Rule 15 of Order V can be amended by deleting the word ‘male’, thereby including any adult member of the family who is permanently residing with the defendant to be eligible to receive summons. The words ‘member of the family’ needs clarification. There is already an 64 Federal Rules of Civil Procedure

SUMMONS IN A CIVIL SUIT IN BANGLADESH

‘Explanation’ under the same provision which excludes the servant as member of the family. The existing note of explanation can be further clarified by inserting a specific definition of the member of a family, which will include any person residing permanently with the A new rule can be inserted right after Rule 19B of Order V introducing the above alternative methods, or alternatively some changes can be made in Rule 19B of Order V or Rule 9 of Order V. There should be clear provisions as to what kind of proof needs to be submitted to satisfy the court that the process has been duly served by the plaintiff; as to who will bear the expenses; and how long the court needs to wait to declare that the process has been served. The main emphasis must be on the satisfaction of the court that the summons has been served in one or any of the different modes, which would enable the court to take the next steps. It has to be made clear that these services will be alternative to the postal service. A minor change should also be made in Rule 1 of Order IV, indicating that in case of alternative service a petition on behalf of the plaintiff stating that he wants to serve the summons through courier service or fax message or e-mail within the date mentioned by the court is sufficient. defendant except servants. Under the present procedural system, service of summons or process is not properly effected due to procedural technicalities. Under the system, the process-server is the most powerful person in serving the summons and there is no check and watchdog over the work of process-server. Moreover, the postal system of our country is not effective enough in providing its service in time. So there is glaring need to change the present system and to incorporate a new dimension of service of summons or process. Any or more of the following steps may be taken into consideration: i. Provisions should be incorporated to make the process-server responsible for failure of service within the time prescribed. ii. A separate sell for service should be set up i.e. a separate

department of service may be

established in the nezarat branch which is to deal with all functions in respect of service of summons or process. iii.

Similarly a separate branch or sell for service should be set

up

in every Union

Parishad wherefrom summons or process may be effectively served to the defendant or witness residing in the Union. iv. Courier service and internet or cyber network access should be adopted in every stage of the service of summons or process.

SUMMONS IN A CIVIL SUIT IN BANGLADESH

v. Process fees should be increased to a reasonable amount in consonance with present day communication expenditure. vi. Postal department should be instructed to give special treatment in delivering courts summons, letters, etc 5. Conclusion Summons is a service, where informed to the defendant about the suit which was filed by the plaintiff. It is the judicial process to inform the defendant to submit his appearance on behalf of him and he get the chance to say something about the suit. Whether he is liable or not. Section 27 and order V provides the provision of summons. Here provides the provision of service of summons. Even how a summons will serve in case of the absence of the defendant. If the defendant is public servant of Bangladesh then which procedure will be followed that is also specified in that Code.

Book reference:

1.Takwani C. K., Civil Procedure, 7th ed., Eastern Book Company, 2014 2.

Mahmud Wazedd: Hand book on code of civil procedure;

3.

Mahbudul Islam: Law of Civil Procedure, ed.2nd , Volume 2 (or 21r. 60 to end)

4.

Md. Abdul Halim: Text Book on Civil Procedure

5.

A. M Moniruzzaman, Civil Procedure Code, 3rd ed., (Dhaka: Shams Publications, 2007

6.

Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755.

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7.

The Code of Civil Procedure, 1908

8.

Md. Abul Kalam Azad, The Code of Civil Procedure, 3rd ed., (Dhaka: Lipi Law Book House,

2008)