This article is written by Puneet Dhanoa from Symbiosis Law School, Hyderabad and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
From Blackstone’s Commentaries, summons means“a writ, issued to a sheriff or other officer, to notify a party to appear in court to answer a complaint made against him.” The term summons has been further discussed in the case of Townsend v. US:
It should be necessary to point out that the word has a much wider meaning today. For example, the word attend, as well as the word appear and is sometimes used in the cases in defining summons. In some jurisdictions, it is not a writ or process at all but merely a notice to the defendant that an action has been commenced and that judgment will be taken against him if he fails to answer the complaint. On the other hand, a summons has been defined as synonymous with the process and as synonymous with a subpoena.
Once a suit of civil nature has been instituted, the next step and a significant one is the issuing of a summons. It is only after issuing of summons that the witnesses appear and the statements are recorded and the case goes on. It constitutes an important element for the successful delivery of a fair and just judgment. Summons are important to be issued accurately. If the summons is issued and not served properly then there lies no action against the defendant. However, if the defendant receives the summons and they have been served to him/her and still they don’t appear in the court, then the court can ex parte them.
Order XVI and Sections 27 to 31 deal with the “summoning and attendance of witnesses”. Rules 1 to 21 under Order XVI have provisions for the same. These provisions ensure proper procedure to be followed in a civil suit so as to have witnessed and informed them about the suit. The non- summoning of witnesses would create a great barrier in the way of providing justice adequately and on time. This research work is restricted to the study of the procedural aspect of summoning and attendance of the witnesses.
Extent and scope
The scope of this research will be limited to the procedure that has been established with respect to the matter of summoning of witnesses and the attendance of witnesses that is to be observed in a civil proceeding in India according to the Code of Civil Procedure, 1908 (hereinafter referred to as CPC). The civil proceedings in India will be studied by restraining the study to the summoning and attendance of witnesses in India.
Summoning of witnesses
Provisions in Section 27 to 31
Section 27 to 31 mention the aspect of summoning of witnesses in the CPC other than the Order XVI of CPC. Without the summons to witnesses, the suit cannot move further and summons are one of the most important elements of a civil suit. After the institution of a suit, the next step is issuing if summons. Only after that does the case move forward to other steps like the recording of statements, claims by defendants and framing of issues etc.
Section 27 mentions that once the case is instituted, within 30 days of the same, the summons is given out to the defendant asking them to appear. This summons can be issued in a manner that is prescribed.The summons might be sent for administration to another State too and in a way recommended or mentioned in the guidelines in power in the specific State. The Court received the summons will give orders and act as if they have been issued by the same court and will at that point give the summons back to the Court who issued it along with any documents regarding the procedure of the Court with regards to such matter.
In case the language used in summons received by another State does not turn out to be the same as the language of the record” of that State an interpretation and translation of the issued summon must be given in Hindi, will likewise be given along with the documents of the procedure followed sent according to the provision of Section 28(2). This provision is present to overcome the barrier of language so that the summons is properly issued to the witnesses and they cannot use the non-understanding of the language as an excuse to evade their duty to be present before the court.
Based on the application of one of the parties or by its own has the power to issue summons to any such people to provide evidence or documents as required by the court. In case of non-attendance of the witness or default, the court has the power to punish the person. A warrant can be issued for the default of summons by the person. The court can “attach and sell” the property or penalize a fine that isn’t more than five hundred rupees. The court can also instruct the person to provide security due to his presence and if such person defaults then the court has the power to send him to “the civil prison.”
Provisions in Order XVI of CPC
Rule 1 specifies that:
“Prior to such date as the Court may delegate, and not later than fifteen days after the date on which the issues are settled, the parties will introduce in Court a list of witnesses whom they propose to call either to give proof or to deliver documents and acquire summonses to such people for their participation in Court.”
The party getting the summons in case of participation of the individual will document an application expressing that the purpose of calling a particular witness for the proceedings of the case. The Court might grant permission to a party to request the admission of a witness whose name isn’t specified in the witness list, regardless of summons issued or not, if it is shown that there is adequate reason to specify and include such witness. The summons under sub-rule 2 might be acquired by a party“on an application to the Court or to such official as might be designated by the Court for this benefit.”
Rule 2 talks about the Costs of witnesses that will be paid in theCourt when someone applies for summons. It says that the persons seeking summons for their witnesses will be liable to pay a certain amount of money to make sure the travelling expenses of the person being summoned and other expenses are adequately paid, if such amount is not paid into the court the summons won’t be granted. So as to decide the sum supposed to be paid, the Court may on account of an individual brought to give evidence as a specialist, permit sensible compensation considering the time taken to provide with the evidence and in playing out whatever work of a specialist nature which holds importance for the case. Rule 3 states that the amount of money submitted to the court is supposed to be provided to witness along with the summons to be served.
Rule 14 states that the court can issue summons on its own if it feels it is important and necessary to do so. The court can also order such a person to produce or provide evidence for the matter. All the details and specifications regarding summons have been mentioned in sections 27 to 31 or CPC and Order XVI. Together, these form the basis of every civil suit. Summons are the initial stage in any civil case and hold importance since witnesses are an important factor when it comes to giving a just decision considering the proofs and documents provided by the witnesses.
Attendance of the witnesses
Court has the power to force the individual attendance of any witness living inside the jurisdiction of the court, or irrespective of the jurisdictional restrictions in case the individual called stays at a place, not farther than50 miles from the Court or not more than 200 miles in case of a rail line correspondence or public means of transport for 5/6th of distance, given that the person isn’t excluded with respect to the provisions of the CPC.
A stipulation was added to Order XVI, Rule 19, CPC in Punjab stating that- “a Court in the State of Punjab may require the personal attendance of any witness living in the State of Punjab or the Union Territory of Delhi.” The provisions for the attendance and summoning of witnesses also apply to the parties to the suit if they have to produce a document or act as a witness. They apply in a similar way and to the same extent as they apply to the witnesses who are not involved in the case. If a public servant is unable to attend the court after being issued summons, the court has the power to issue a warrant against him.
A notice can be sent to such a public servant to show cause as to why was there a failure on his part to not obey the summons. In case of failure of attendance on part of the parties and hence the default of the summons issued, the court has the power to levy punishment on such parties. When the witness is in attendance the statements and evidence should be recorded promptly and on time so as to prevent any adjournment.
Under Section 132 of CPC, ladies who as per the traditions and customs of the nation, should not be constrained to show up in broad daylight will be absolved from personal attendance in Court. “The Court has a prudence to absolve from participation as a witness any individual who in the assessment of the Court, is, from infection or ailment incapable so to join in or who, being a Civil or Military Officer of the Government, can’t attend without disadvantage to the Public Service.”The Court might give a Commission regarding the assessment of the witness, whose participation can’t force by law, or according to the conditions indicated all together under Order XXVI of the CPC. The defendant can be exempted from personal appearance if in case he doesn’t stay in the area of the court’s jurisdiction.
The attendance of witnesses is an important part of a civil suit. There exist some obligations on the part of the witness to give attendance based on the authority of the court. In case of failure of attendance, the court has the power to issue warrants. Other than these provisions discussed above, there also exists the provision of exemption of certain individuals like women bound by certain customs and traditions to not go out in broad daylight etc.
Specifications of summons
According to Order 5 Rule 1, the essential need in any summons is “the sign of the Judge and seal of the court giving the summons”. As for the summons to witness, Rule 5 of Order 16 expresses that information should be explicitly be mentioned like date and time at which the witness is needed to be present Alongside these, the justification regarding the presence of the witness, for example, to give proof or to give documents or both ought to likewise be referenced in the summons.
In the event that the person is called for delivering any document, the name and depiction of the document are required to likewise be mentioned in the summons. They should be duly served under the provisions of order 5. It was held that since the summons was issued ordinarily and not by means of special service, they were not considered to be served to the parties. In Rooprani v. Prem Singh, case the parties are not present to accept the summons, they should be duly affixed on the front door or any conspicuous place which wasn’t done in this case and hence it was considered that they have not been duly served.
When a Summon is signed and sealed, it is provided to a Police Officer to serve it on the individual as asked by the Court. It should be served to him in person by means of a copy of the summons. In case the person on which the summon has been served is not present at his house, the summons can be served to a family member who lives with him or the copy can be fixed at the “door of the house” of the person being summoned.The Court after applying due diligence as the case might be either pronounce that the summons has been appropriately served or may give a new summon.
The Summon might be served on a company by sending them to a delegate of the company like a manager. In case the individual called is a government employee, the summons must be delivered at the head office of the department he works in and the head is then responsible to deliver the summons to the person who they have been served upon. When the individual has to be called as a witness, the court may likewise order that a duplicate of the summons might be provided to the individual via post.
Summons can be served in various modes and methods as it is served under Order 5. They should be delivered on such a date and time so as to give sufficient time to the witness to prepare and appear before the court. Summon can be delivered actually to the individual or his approved agent. In case the individual can’t be found in his home for some time, the summons can be conveyed to any adult member residing with the witness.
In Suresh Kumar vs Smt. Godaveribai, it was held that the summons if read by the adult member and returned to the serving officer in the absence of the respondent, was not considered to be served as the serving officer didn’t specify if he waited for a reasonable time for the respondent to return. The Supreme Court recently in a suomoto writ petition for the extension of limitation period due to lockdown held that digital mediums such as WhatsApp, Telegram and Email can be used to send summons. It was also held that the blue tick in WhatsApp can be considered as the acknowledgement of the service.
CPC has defined all the specifications for summons like the seal, sign, explicit information, date and time etc. to be mentioned clearly on the summons. Even the provisions of serving of summons and failure to do so to the person himself and alternatives available have been clearly mentioned. The new and evolving methods of serving summons have been taken into consideration by the court time and again due to the evolving circumstances.
Conclusion
When the issues are framed, the plaintiff and defendant at first need to specify the witnesses who they could get on their own and who they cannot. Then, a list containing the names of all the witnesses to be summoned by the court is prepared and submitted. Along these lines, the summons is given and they ought to be served based on the modes recommended. The summons creates a legal implication on the witnesses to attend the proceedings and be a witness. In case of default on the part of witnesses with respect to the summons, they become liable for being penalized.
The significance of the summons issued is depicted from the fact that failure to adhere to them attracts punishment. The witnessed don’t have anything at stake in the case in question and hence the court by issuing summons creates an obligation for them to adhere to which they have to follow and abide by. The attendance of witnesses holds surmount importance as it helps in the justice delivery process by providing accounts that they tend to be witnesses for. The purpose for a particularly strong procedure is to get and deliver a fair and just judgment at the end which could be possible dependent on the proof and reports procured from the witnesses.
Bibliography
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