Report No. 27

Order V, rule 2

Order V, rule 2 provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Some High Courts1 have, by local Amendments, omitted the reference to concise statements. It is, however, considered desirable to retain it. These concise statements are filed under another rule-Order VII, rule 9.

6. See Allahabad, Kerala and Rajasthan Amendments to Order 5, rule 2.

Order V, rule 4A (Local Amendments)

Certain High Courts have, by Local Amendment1, inserted Order V, rule 4A, empowering the Court to dispense with service in proceedings for interlocutory relief and in proceedings held after the decree, in respect of defendants against whom the main case has proceeded ex parte. It is not considered necessary to adopt such a provision for the whole of India.

1. See Local Amendments by Allahabad and Orissa High Courts.

Order V, rule 5

1. The question whether the words "for appearing and answering the claim" should be added, to emphasise the defendant's duty to file the written statement1, has been considered. It is felt that no such change is necessary, as the existing rule is adequate.

2. The Madras Amendment to this rule contains elaborate provisions as to the kinds of summonses that may issue against the defendant. Briefly speaking, the summons may (under that Amendment) be issued

(i) for settlement of issues; or

(ii) for appearing and stating whether the defendant wishes to contest the suit and (if so) for receiving directions as to date for filing the written statement, date of trial and other matters, and (if he does not contest) for final disposal; or

(iii) for final disposal.

(As to the second category of summons-summons for receiving directions as to further proceedings, etc.,-the addition of such a category was recommended by the Civil Justice Committee)2.

The question whether a provision on the lines of this Amendment should be incorporated in the Code, has been considered. It is felt that such a change is not needed3.

1. Cf. 14th Report, Vol. I.

2. Civil Justice Committee (1924-25) Report, p. 6, Chapter I, para. 15.

3. See also 14th Report, Vol. I.

Order V, rule 15

1. Order V, rule 15 provides that where in any suit the defendant "cannot be found" and has no agent empowered to accept service, service may be made on any adult male member of his family residing with him. Many High Courts have made local Amendments whereunder, instead of the words "defendant cannot be found", the words "defendant is absent" or "defendant is absent from his residence at the time when service is sought to be effected on him thereat and there is no likelihood of his being found thereat within a reasonable time"1 have been substituted. The last mentioned form is the most elaborate and has been employed in the Calcutta Amendment. It seems to be worth incorporating, and has therefore been adopted.

2. The genesis of these local Amendments may be explained.

There had been decisions by several High Courts to the effect that service under this rule upon an adult male member would not be proper service unless it was proved to the complete satisfaction of the court that attempts were made to find the defendant, that the defendant could not be found and that he was deliberately keeping himself out of the way to avoid service. The Civil Justice Committee2 noted this position and observed that the decisions "imposed an unnecessary restriction on the application of this rule which is not contemplated either by the letter or spirit of the rule". It observed that there was no reason to suppose that the knowledge of the service effected on the adult male member would be withheld from the defendant and recommended the substitution of the words "where the defendant is absent".

3. A suggestion has been received to the effect that the word "male"' in this rule should be omitted. Though the word has been omitted by local Amendment in one State3, it does not appear to be a change which can be safely adopted for the whole of the country.

1. See the local Amendments made by High Courts of Allahabad, Andhra Pradesh, Asam, Calcutta, Madhya Pradesh, Madras, Punjab and Rajasthan.

2. Civil Justice Committee Report (1924-25), pp. 168-169, Chapter 10, para. 20.

1. See Kerala Amendment.

Order V, rule 17

In view of the change proposed to Order V, rule 151, it is proposed to substitute in rule 17 also for the words "or where the serving officer cannot find the defendant", the words "or where the defendant is absent, etc." The Calcutta Amendment on the subject, which is on the same lines, may be seen. The effect of that amendment has now been settled by several decisions relating to Order V, rule 15, and Order V, rule 172-3.

2. See amendment proposed to Order 5, rule 15.

3. Tripura M. Bank v. Bansen & Co., AIR 1952 Cal 781.

4. Ganesh Mal v. Keshoram, AIR 1952 Cal 10.

Order V, rule 19

By a local Amendment, the Calcutta High Court has substituted "declaration" for "affidavit" in Order V, rule 19. It is unnecessary to adopt this change.

Order V, rule 19 (proposed)

1. This carries out the recommendation in the Fourteenth Report1. The object is to provide for simultaneous issue of summons for

(i) service in the ordinary manner, and

(ii) service by post.

2. The suggested alternative that in the beginning, the summons should be sent by registered post, and if the defendant does not appear, the case should not proceed ex parte but the summons should be issued again for service in the ordinary way, has been examined. The question whether processes in connection with injunctions, contempis and proclamations for sale should be excluded totally from service by post, has also been considered. It is felt, that from the practical point of view, the course suggested in the Fourteenth Report, which has been adopted, is the simplest and is worth giving a trial.

The amendments made to Order V, rule 9 by certain High Courts2 and to Order V, rule 10 by other High Courts3, and Order V, rule 21A inserted by some High Courts4, give a discretion to the court to send the summons for service by registered post. It is unnecessary to consider the details of these amendments, but the effect of most of these amendments is that where summons is sent by registered post, an acknowledgment purporting to be signed by the defendant shall be deemed to be prima facie proof of service. Case-law on these amendments explains their meaninel5-6-7-8-9-10. What is now proposed is, that the summons (by post)11 should be simultaneously issued. The court may act on whichever summons is proved to have been served.

3. A saving, preserving the power of the Court to direct service in another manner, has been provided for. (It may be useful in cases, for example, where the defendant resides very near the headquarters of the Court, or the Court proposes to send a special messenger).

1. 14th Report, Vol. I.

2. See amendments to Order 5, rule 9 by High Courts of Allahabad, Andhra Pradesh, Kerala and Madras.

3. See amendments to Order 5, rule 10 by High Courts of Orissa, Patna, Punjab and Rajasthan.

4. Bombay, Gujarat and Madhya Pradesh Amendments inserting Order 5, rule 20A.

5. S.M.R.C. Church v. Lakshmana, AIR 1959 Ker 297.

6. Sri Krishna Rice Mills v. Rajagopal, AIR 1958 Mad 528.

7. Bai Shanta v. Khakis, AIR 1956 Born 144.

8. Mohan v. Sunder, AIR 1949 Punj 295.

9. Dua v. Balli, AIR 1959 Punj 467.

10. K.A. Desai v. Vijoy Singh, AIR 1954 Sau 84 (existing position).

11. As to post, see sections 16 and 114, Evidence Act, and section 27, General Clauses Act.

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