Drafting of Writ of Summons and Affidavit of Service (CIVIL LITIGATION DRAFTING 6)

Proper service of summons and other documents is an important aspect of civil litigation, as it ensures that the opposite party is duly informed of the proceedings and is given an opportunity to appear and respond. This module explains the practical aspects of issuance and service of Summons and Writ of Summons, drafting Affidavits of Service and applications for substituted service, along with practical sample formats.

Table of Contents

1. Introduction – Importance of Proper Service in Civil Proceedings
2. Practice before Different Courts
3. Modes of Service of Summons / Writ of Summons
4. Drafting of Writ of Summons
5. Drafting of Affidavit of Service
6. Drafting of Application for Substituted Service
7. Sample Formats

1. Introduction – Importance of Proper Service in Civil Proceedings

At various stages of civil proceedings, it becomes necessary to serve the opposite party with the plaint, written statement, interim applications, Chamber Summons, Notices of Motion, affidavits, notices, or other documents filed before the Court. Proper and effective service of such documents is an essential part of civil procedure, as it ensures that the opposite party is made aware of the proceedings and is given a fair opportunity to appear, respond and contest the matter.

Unless the requisite documents are duly served in accordance with the applicable provisions and rules, the proceedings or a particular application may not be able to effectively progress, and the Court may be required to direct fresh or further service. Therefore, an advocate must ensure that the documents are served in the prescribed manner and that proper proof of such service is placed on record.

2. Practice before Different Courts

The practice relating to issuance and service of summons differs depending upon the Court. In Civil Courts outside Mumbai, summons are generally issued and served in accordance with Order V CPC and the applicable Court Rules. Service may be effected through the Court process server or bailiff, by post, electronic mode or any other permissible mode. Where service is effected through the process server or bailiff, the serving officer submits a report or return to the Court, and a separate affidavit of service may not be necessary depending upon the applicable practice.

The practice before the City Civil Court, Mumbai and the Bombay High Court, Original Side is different. The City Civil Court Rules contain specific provisions relating to Writ of Summons, while Chapter VI of the Bombay High Court Original Side Rules specifically deals with Writ of Summons. After service, proof of service is placed on record in the manner prescribed by the applicable rules and practice.

Thus, while the purpose of summons and Writ of Summons is substantially the same, their terminology, prescribed form and procedure may differ depending upon the practice of the particular Court.

3. Modes of Service of Summons / Writ of Summons

The service of summons is primarily governed by Order V of the Code of Civil Procedure, 1908. Depending upon the circumstances of the case and the applicable Court Rules, summons or Writ of Summons may be served through various modes, including:

• Service through the Court / serving officer – through the officer authorised by the Court for service.

• Service by post or courier – including registered post, speed post or approved courier service.

• Personal service – by delivering or tendering the summons directly to the defendant or an authorised person, as permitted under the CPC.

• Electronic service – through electronic modes such as e-mail or other means where permitted by the applicable Court Rules.

• Substituted service – under Order V Rule 20 CPC, where the Court is satisfied that ordinary service cannot be effected or the defendant is deliberately avoiding service.

The exact mode of service and procedure for proving such service may vary depending upon the rules and practice of the particular Court.

4. Drafting of Writ of Summons

A Writ of Summons is the formal process issued to the defendant calling upon the defendant to appear and answer the plaintiff's claim. While drafting a Writ of Summons, the following aspects should be kept in mind:

• Meaning and Purpose: The Writ of Summons gives formal notice of the suit to the defendant and calls upon the defendant to appear and answer the plaintiff's claim.

• Essential Contents and Structure: The form and contents of the Writ of Summons must comply with the applicable Court Rules. In the Bombay High Court, Original Side, Chapter VI specifically deals with Writ of Summons. Rule 69 prescribes the applicable forms and requires the Writ of Summons to be accompanied by a copy of the plaint with annexures.

• Particulars: The names and addresses of the parties and, where applicable, the advocate's particulars should be correctly stated in the Writ of Summons. Rule 70 specifically requires the name, address and electronic mail address of the party or Advocate to be stated.

• Documents Accompanying the Writ of Summons: The Writ of Summons should be accompanied by the copy of the plaint and its annexures, as prescribed by the applicable rules.

5. Drafting of Affidavit of Service

An Affidavit of Service is filed to place on record the facts and manner in which the summons, Writ of Summons, notice or other document has been served upon the concerned party. The provisions relating to service of summons are primarily contained in Order V CPC, particularly Rules 16 to 19 dealing with acknowledgment, the manner of service, the serving officer's return and verification of service.

While drafting an Affidavit of Service, the following aspects should be kept in mind:

• Date, place, mode and manner of service – Clearly state when, where and how the document was served.

• Details of the person served – State the name and particulars of the person upon whom service was effected and, where relevant, the capacity in which the person accepted service.

• Documents evidencing service – Refer to and annex the relevant acknowledgment, postal receipt, tracking report, delivery confirmation, or other proof of service, as applicable.

• Annexures and proof of delivery – Properly identify and mark the documents relied upon as proof of service.

• Verification/Affirmation – The affidavit should contain an appropriate verification or affirmation in accordance with the applicable Court Rules and practice.

6. Drafting of Application for Substituted Service

Where the summons or Writ of Summons cannot be served in the ordinary manner, an application for substituted service may be made under Order V Rule 20 CPC. While drafting such an application, the following aspects should be considered:

• When substituted service may be sought: State the circumstances showing that the defendant is avoiding service or that the summons cannot be served in the ordinary manner.

• Grounds for substituted service: Set out the attempts made for ordinary service and the facts establishing why such service has not been possible.

• Appropriate prayer: Seek an order permitting substituted service in the manner considered appropriate by the Court.

• Mode of substituted service: The Court may direct service by affixing the summons or by publication in a daily newspaper circulating in the locality where the defendant was last known to have resided, carried on business or personally worked for gain, or in such other manner as the Court considers appropriate.

For Bombay High Court, Original Side, there is an additional specific requirement: Rule 86 of Chapter VI of the Original Side Rules provides that an application for substituted service of a Writ of Summons shall be made in Chambers and shall be supported by an affidavit. Where service was attempted through another Court, the application is also supported by the prescribed deposition regarding the attempts at service.

7. Sample Formats

The following sample formats are provided to illustrate the practical drafting and procedure relating to service of summons and substituted service:

a. Writ of Summons in a Civil Suit before the City Civil Court, Mumbai

b. Writ of Summons in a Summary Suit before the City Civil Court, Mumbai

c. Affidavit of Service by the Bailiff / Serving Officer before the City Civil Court, Mumbai

d. Affidavit of Service by Advocate's Clerk before the City Civil Court, Mumbai

e. Application for Substituted Service under Order V Rule 20 CPC