An In-depth Look at Order 5 CPC in India - A Comprehensive Examination of Service of Processes in Civil Cases-

The Code of Civil Procedure (CPC) in India is a comprehensive piece of legislation that governs civil proceedings in the country. One of its most crucial components is Order 5, which outlines the rules for the service of processes in civil cases. This includes the issuance of summons, which are legal documents that inform a defendant about a lawsuit and require their presence in court. This article aims to provide an in-depth understanding of the service of processes under Order 5 CPC, its objectives, the mandatory nature of notices, and the various modes of service.

The Object of Service of Processes

The service of processes is a fundamental aspect of civil proceedings. It is based on the doctrine of audi alteram partem, a Latin phrase that translates to “hear the other side.” This principle is a cornerstone of natural justice, ensuring that every party involved in a dispute has an opportunity to present their case before the court. However, it’s important to note that the issuance of process is not necessary in all cases.

The primary objective of the provisions under Order 5 CPC is to ensure the defendant’s presence in court. This is achieved by serving them with a summons, which informs them about the lawsuit and requires them to appear in court on a specified date. If the defendant is aware of the suit and is participating through counsel, they cannot later claim that summons were not served upon them, thereby invalidating the proceedings. This principle was upheld in the case of Sri Nath Agrawal vs. Santosh Kumar, AIR 1981 All 400.

Mandatory Notice of Hearing

The principles of natural justice extend beyond the service of summons. They also require that parties to proceedings must be heard before any order is passed. This is particularly relevant in writ petitions under Article 226 of the Indian Constitution. In these cases, no court can pass an order against a party without providing them an opportunity for hearing and objection.

A party to any proceeding has the legitimate right to raise objections. They should at least be heard and their views or stance taken into consideration. This principle was highlighted in a case where the High Court passed an order under Article 226 of the Constitution without providing an opportunity for objection and hearing to the other side. The Supreme Court set aside the order and remanded the case to the High Court for reconsideration, emphasizing the importance of hearing both sides before passing any order.

Knowledge of Proceedings

The service of processes is not just about delivering a summons to the defendant. It’s also about ensuring that the defendant is aware of the proceedings. There is a distinction between non-service of notice and a notice served with procedural irregularities. In the former case, if the fact of non-service is proven, all consequential action would be rendered invalid. However, in the latter case, the consequential action would be sustained if the person was aware of the proceedings.

This distinction is crucial because it recognizes that the ultimate goal of the service of processes is to ensure that the defendant is aware of the lawsuit. If a person has knowledge of the action proposed in the notice, then the action taken cannot be held as being bad in law by finding fault in the manner of effecting service unless they can show substantial prejudice caused dueto procedural lapse. This principle was affirmed in the case of Prabin Ram Phukan Vs. State of Assam, (2015) 3 SCC 605 (para 25).

Notices to be Only in Writing

The CPC also mandates that all orders and notices served or given to any person under the CPC must be in writing. This requirement is outlined in Section 142 of the CPC. The rationale behind this requirement is to ensure clarity, precision, and permanence. Written notices eliminate any ambiguity that could arise from oral communication and create a record of communication that can be referred to in future proceedings. They also help in avoiding misunderstandings and disputes over what was communicated.

Modes of Service

Order 5 of the CPC outlines several modes of service of processes. These include:

1. Process server: This is a person appointed by the court to serve legal documents such as summons and notices.

2. Special messenger: In some cases, the court may appoint a special messenger to serve the summons.

3. Amin: An Amin is a court official who can also serve summons.

4. Advocate Commissioner: In certain situations, an Advocate Commissioner may be appointed to serve the summons.

5. Registered post & Speed post: The summons can also be served through registered post or speed post.

6. Publication in a newspaper: If the defendant cannot be located, the court may order the publication of the summons in a newspaper.

7. Courier Services: If approved by the High Court, summons can be served through courier services.

8. Fax message: In some cases, the summons can be served through a fax message.

9. Electronic mail service: With the advent of technology, summons can also be served through electronic mail service.

10. Dasti Summons: In some cases, the party himself can serve the summons. This is known as Dasti service.

Conclusion

Order 5 of the CPC plays a crucial role in the administration of justice in civil proceedings in India. It provides a comprehensive framework for the issuance and service of summons, thereby ensuring that all parties involved in a lawsuit are given a fair opportunity to present their case. However, it’s important to note that the service of summons must be done in a manner that respects the rights of the defendant and upholds the integrity of the legal process. Understanding the nuances of Order 5 CPC is therefore essential for anyone involved in a civil lawsuit in India.