Misapplication of Order V Code of Civil Procedure 1908

Code of Civil Procedure, 1908 (CPC) sets out, apart from substantive law, procedures to be adhered to by the courts while proceeding with civil matters. The procedure, in itself, has attained the status of a fundamental right by virtue of Articles 4 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution).

However, civil courts in Pakistan sometimes fail to comply with key procedural provisions, creating loopholes that parties can exploit.

This article discusses the significance of Order V CPC and how courts' failure to comply with its key elements has contributed to the multiplicity of proceedings.

Order V deals with issue and service of summons and notices to suit parties. After institution of civil suit, court adopts three modes of service, i.e., ordinary summons, courier acknowledgment due, and substituted service. I have discussed hereunder the ordinary summons and substituted service.

Ordinary Summons

Personal service on the defendant is provided by Order V Rules 9, 10, 12, 16, 17 and 19.

1. Rule 9 provides that unless court directs otherwise serving officer of the court will serve the notice on the defendant. Rule 10 provides that the summons shall be made by delivering a copy of the summons signed by the judge and sealed by the court.
2. As per Rule 16, the serving officer is required to procure “…the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons.”.
3. Rule 17 provides that where the defendant (or his agent) (i) refuses to sign the summons, or (ii) cannot be found, 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...". It further provides that the serving officer shall return a copy of summons to the court and state therein (i) circumstances under which he affixed the summons, (ii) name and address (if any) of the person who identified the house, and (iii) in whose presence the copy of summons was affixed on the outer door.
4. Rule 19 provides where the summons is returned under Rule 17, the court shall "...examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit". This examination is crucial, as it forms the basis for deciding whether to proceed ex parte against the defendant under Order IX Rule 6 CPC.

Substituted Service

As per Order V Rule 20, where the defendant is not served through ordinary means, and only after the court has satisfied itself and recorded such satisfaction in writing, the court has multiple options to direct summons:

(i) affixing copy of the summons at some conspicuous part of the place of residence;

(ii) any electronic device of communication which may include telegram, telephone, phonogram;

(iii) publication in press; and/or

(iv) any other manner or mode as it may think fit.

Court's Non-Adherence

Civil courts do not tend to strictly follow Order V Rules 17 and 19 and do not properly utilize Rule 20. Which is misused by some plaintiffs to obtain ex-parte judgment and decree against the defendant that usually ends up in the issuance of arrest warrant against the defendant. Defendant becomes aware of the proceedings against him when he receives the arrest warrant or escapes attempted imprisonment.

To counter this, defendant files an application to set aside the ex parte judgment and decree, which is often granted. The court then conducts proceedings de novo (afresh), leading to unnecessary delays and a proliferation of cases.

Superior courts have been emphasizing the importance of adherence to Rules 17 and 19. See below some of the notable judgments in support of the notion that civil courts need to strictly comply with the provisions of Order V Rules 17 and 19 CPC and that only after satisfying itself that Rules 17 and 19 have been complied with can it resort to Rule 20 substituted service:

PLD 1952 Lahore 552

2004 MLD 1170 (Lahore) at para 5

2002 CLC 932 (Peshawar) at para 5, 6

PLD 2024 Lahore 233 at para 7, 8

2024 MLD 455 (Lahore) at para 6

2023 MLD 1118 (Lahore) at para 4

2023 MLD 264 (Lahore) at para 9

1985 SCMR 1228

2022 MLD 250 at para 8

1993 MLD 889 (Lahore) at para 12

2000 CLC 530 at para 14

Strict compliance with the procedural provisions of Order V CPC is essential to ensure fairness and prevent delays in civil litigation. Courts must diligently follow the prescribed rules for service of summons to uphold the principles of justice and efficiency in the judicial process.