Order V Rule 1 CPC – Summons

Order V Rule 1 of the Code of Civil Procedure, 1908 deals with the issue of summons to the defendant after a suit has been duly instituted. The provision ensures that the defendant is formally informed about the suit and is given an opportunity to appear before the court and answer the plaintiff’s claim.

The rule is important because a civil proceeding should ordinarily not move forward against a defendant without giving the defendant proper notice and an opportunity to defend.

Object of Order V Rule 1

The main objectives of Order V Rule 1 are:

• to formally notify the defendant about the institution of the suit;
• to require the defendant to appear before the court;
• to require the defendant to answer the plaintiff’s claim;
• to connect the summons with the filing of the written statement;
• to provide a reasonable opportunity to defend the proceedings; and
• to ensure procedural fairness between the parties.

Statutory Provision

Order V Rule 1 provides, in substance, that when a suit has been duly instituted, a summons may be issued to the defendant requiring the defendant to appear and answer the claim on a specified day.

The defendant is also required to file a written statement of defence within the period prescribed by the CPC.

The rule further provides for the manner of appearance by the defendant and the authentication of the summons.

When Is Summons Issued?

Summons is issued after the suit has been duly instituted.

The plaintiff first institutes the suit by presenting the plaint in accordance with the CPC. Once the suit has been duly instituted, the court proceeds to issue summons to the defendant.

The basic sequence is:

Institution of suit → Issue of summons → Service of summons → Appearance of defendant → Defence

Purpose of Summons

A summons serves two principal purposes.

1. Giving Notice

It informs the defendant that a suit has been instituted against them.

2. Giving an Opportunity to Defend

It requires the defendant to appear before the court and answer the plaintiff’s claim.

Therefore, summons is not merely a technical document. It is an important procedural safeguard.

Appearance by the Defendant

Order V Rule 1 permits the defendant to appear in different ways.

The defendant may appear:

• personally;
• through a duly instructed pleader; or
• through a pleader accompanied by a person capable of answering material questions relating to the suit.

The purpose is to allow the defendant to participate effectively in the proceedings while ensuring that the court can obtain necessary instructions where required.

Appearance Through a Pleader

A defendant ordinarily does not have to personally attend every stage of a civil suit.

The defendant may appear through a duly instructed pleader who is capable of answering material questions relating to the suit.

However, where the court considers the personal presence of the defendant necessary, the defendant may be directed to appear personally.

Written Statement

Order V Rule 1 is closely connected with the defendant’s written statement.

In an ordinary civil suit, the defendant is generally required to file the written statement within 30 days from the date of service of summons.

The court may permit the written statement to be filed beyond the initial 30 days within the statutory framework, ordinarily up to 90 days from the date of service of summons.

The important point is that the period is calculated from service of summons, not merely from the date on which the summons was issued.

Example

A suit is instituted on 1 January.

Summons is served upon B on 10 January.

The relevant period for filing B’s written statement begins from 10 January.

The date of institution of the suit does not become the starting point merely because the suit was filed earlier.

Commercial Disputes of Specified Value

A stricter rule applies to commercial disputes of specified value.

In such cases, the defendant is ordinarily required to file the written statement within 30 days from service of summons.

The court may permit filing beyond 30 days, but the statutory outer limit is 120 days from the date of service of summons.

After expiry of the 120-day period, the defendant forfeits the right to file the written statement and the court cannot ordinarily take the written statement on record.

This distinction between ordinary civil suits and commercial disputes is particularly important for examinations and practical litigation.

Type of suit	Initial period	Outer limit
Ordinary civil suit	30 days	90 days within the ordinary CPC framework
Commercial dispute of specified value	30 days	120 days

Date of Service Is Important

The date of service of summons has considerable procedural significance.

The time available to the defendant for filing the written statement is calculated from service.

For example:

• Suit instituted: 1 August
• Summons issued: 5 August
• Summons served: 15 August

The relevant period begins from 15 August, because that is the date of service.

Therefore, the date of institution, date of issue and date of service should not be confused.

When Summons Need Not Be Issued

Order V Rule 1 recognises a situation where summons may not be necessary.

Where the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim, summons need not be issued in the ordinary manner.

The rationale is simple: if the defendant is already before the court and has admitted the claim, issuing summons merely to bring the defendant before the court would serve no useful purpose.

Signature and Seal

The summons issued under Order V Rule 1 must be properly authenticated.

It must be:

• signed by the Judge or an officer appointed by the Judge; and
• sealed with the seal of the court.

These requirements establish the official character of the summons.

Issue of Summons and Service of Summons

These two expressions should not be treated as identical.

Issue

The court formally issues the summons.

Service

The summons is delivered or communicated to the defendant in accordance with the prescribed procedure.

Therefore:

Issue of summons ≠ Service of summons

A summons can be issued by the court but still have to be served upon the defendant.

Relationship with Section 27 CPC

Section 27 of the CPC provides the statutory framework concerning the issue of summons to the defendant after institution of a suit.

Order V Rule 1 provides the procedural details regarding the summons.

They should therefore be read together.

Section 27 → statutory basis for summons

Order V Rule 1 → procedural framework for issuing summons

Relationship with Order VIII Rule 1

Order V Rule 1 and Order VIII Rule 1 are closely connected.

Order V Rule 1 deals with the summons requiring the defendant to appear and answer the claim.

Order VIII Rule 1 deals specifically with the filing of the written statement.

The summons therefore serves as the procedural point from which the defendant’s obligation to respond becomes relevant.

Consequence of Failure to Appear

If the defendant fails to appear despite proper service of summons, the court may proceed against the defendant in accordance with the CPC.

This may include proceeding ex parte where the statutory conditions are satisfied.

However, proper service of summons remains important before the court proceeds in the defendant’s absence.

Consequence of Failure to File Written Statement

Failure to file the written statement within the prescribed period can have serious consequences.

In ordinary civil suits, the CPC provides a limited framework for permitting filing beyond the initial 30-day period.

Commercial disputes of specified value are subject to the stricter 120-day outer limit.

Therefore, a defendant should not assume that the court can indefinitely extend the time for filing the written statement.

Natural Justice

The requirement of summons reflects the principle of audi alteram partem, meaning that a person should ordinarily be given an opportunity to be heard.

A defendant should have:

• notice of the suit;
• knowledge of the plaintiff’s claim;
• an opportunity to appear;
• an opportunity to file a defence; and
• an opportunity to participate in the proceedings.

Order V Rule 1 therefore plays an important role in ensuring procedural fairness.

Important Case Law

Kailash v. Nanhku, (2005) 4 SCC 480

The Supreme Court considered the time limit for filing a written statement under the ordinary civil procedure.

The Court examined the nature of the time limit under the ordinary CPC framework and distinguished it from the stricter statutory regime applicable to commercial disputes.

The case is important for understanding the relationship between Order V Rule 1 and the provisions concerning written statements.

Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344

The Supreme Court considered amendments to the CPC intended to make civil proceedings more efficient and reduce unnecessary delay.

The decision is relevant to understanding the broader purpose of procedural time limits under the CPC.

SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., (2019) 12 SCC 210

The Supreme Court considered the strict time limit applicable to filing a written statement in commercial disputes.

The decision is particularly important for understanding the distinction between the ordinary civil procedure and the stricter regime governing commercial disputes.

Common Confusions

Is summons issued before institution of the suit?

No.

The suit must first be duly instituted.

Does the 30-day period begin from the date of institution?

No.

The period is calculated from the date of service of summons.

Is the 90-day limit applicable to commercial disputes?

No.

Commercial disputes of specified value are governed by the special 120-day outer limit.

Can the defendant appear through a lawyer?

Yes.

The defendant may appear through a duly instructed pleader, subject to the requirements of the rule.

Does issuing summons mean that the summons has been served?

No.

Issue and service are separate procedural stages.

Is summons always necessary?

The rule recognises circumstances where summons need not be issued, particularly where the defendant has already appeared at the presentation of the plaint and admitted the plaintiff’s claim.

Practical Example

A files a suit against B for recovery of money.

The suit is duly instituted before the competent court.

The court issues summons to B.

The summons is served on B on 10 March.

B must appear before the court and answer A’s claim. B ordinarily has 30 days from the date of service to file the written statement.

If the matter is an ordinary civil suit, the court may permit filing beyond the initial period within the statutory framework.

If the matter is a commercial dispute of specified value, the maximum statutory period is 120 days from service of summons.

Practical Importance in Civil Litigation

At the stage of summons, a lawyer should carefully check:

• whether the suit has been duly instituted;
• whether summons has been properly issued;
• whether it contains the necessary particulars;
• whether the summons has been served;
• the exact date of service;
• whether the defendant has appeared;
• the deadline for filing the written statement; and
• whether the matter is governed by the special commercial-dispute regime.

The date of service is particularly important because it triggers the period for the defendant’s written statement.

Importance for Law Students and Judiciary Exams

Order V Rule 1 can be remembered through the following sequence:

Duly instituted suit → Summons → Appearance → Written Statement

Remember these points:

1. Summons is issued after a suit has been duly instituted.
2. It requires the defendant to appear and answer the claim.
3. The written statement is ordinarily filed within 30 days from service.
4. The ordinary CPC provides a limited framework for extension.
5. Commercial disputes of specified value have a strict 120-day outer limit.
6. The defendant may appear personally or through a duly instructed pleader.
7. The summons must be properly signed and sealed.
8. Issue of summons and service of summons are different stages.

Important Questions to Prepare

1. Explain Order V Rule 1 CPC.
2. What is the object of issuing summons?
3. When can summons be issued?
4. Distinguish between issue and service of summons.
5. From which date is the period for filing the written statement calculated?
6. What is the ordinary time limit for filing a written statement?
7. What is the time limit applicable to commercial disputes of specified value?
8. Can a defendant appear through a pleader?
9. When can summons be dispensed with?
10. What are the requirements regarding the signature and seal of summons?
11. Explain the relationship between Order V Rule 1 and Order VIII Rule 1.
12. What are the consequences of failing to file the written statement within the prescribed period?

Key Legal Principles

1. Summons follows institution

The suit must first be duly instituted before summons is issued.

2. Summons provides formal notice

Its purpose is to require the defendant to appear and answer the plaintiff’s claim.

3. The written statement period begins with service

The relevant period is calculated from the date on which summons is served upon the defendant.

4. Appearance can be through a pleader

The defendant may appear personally or through a duly instructed pleader.

5. Commercial disputes have stricter timelines

Commercial disputes of specified value are subject to the 120-day outer limit for filing the written statement.

6. Proper authentication is required

The summons must be signed by the Judge or authorised officer and bear the seal of the court.

ASLO READ: Order V Rule 2 – Copy or Statement Accompanying Summons

Key Takeaways

Concept	Principle
Provision	Order V Rule 1 CPC
Stage	After due institution of suit
Purpose	Require defendant to appear and answer
Written statement	Ordinarily within 30 days of service
Ordinary suit	Extension within statutory framework
Commercial dispute	Maximum 120 days
Appearance	Personally or through duly instructed pleader
Authentication	Signature and court seal
Related provisions	Section 27 and Order VIII Rule 1
Fundamental principle	Notice and opportunity to defend

Order V Rule 1 CPC establishes the procedural framework for issuing summons to a defendant after a suit has been duly instituted. The summons informs the defendant of the proceedings and requires the defendant to appear and answer the plaintiff’s claim. It also connects the summons with the defendant’s obligation to file a written statement within the prescribed period.

The central point is that the ordinary 30-day period for filing the written statement is calculated from the date of service of summons, while commercial disputes of specified value are subject to the stricter 120-day outer limit.