What is the procedure for service of summons outside jurisdiction?

Service of Summons Outside Jurisdiction

The ordinary mode of serving a summons assumes that the defendant is accessible within the territorial limits of the Court issuing it. But litigation does not confine itself to geography. A plaintiff may have a perfectly valid cause of action against a defendant who lives and works hundreds of miles away, or even in a foreign country. The Code of Civil Procedure has thought through this problem carefully and has laid down a graduated scheme of service, moving from defendants in another district within India, to defendants in other States, to defendants in neighbouring countries, and finally to defendants resident in foreign territories.

Defendant in Another Court's Jurisdiction: Rule 21

The first and most common situation is where the defendant resides not within the jurisdiction of the Court issuing the summons, but within the jurisdiction of another Court somewhere in India. Order V, Rule 21 is the provision that governs this. It empowers the Court issuing the summons to send it — whether within or without the State — by one of its own officers, or by post, or by such courier service as may be approved by the High Court, or by fax message, or by Electronic Mail service, or by any other means prescribed by the rules of the High Court, to any Court — not being the High Court — having jurisdiction in the place where the defendant resides.

This provision was significantly amended by the Code of Civil Procedure Amendment Act, 1999, which came into force on 1 July 2002. Before the amendment, only post was available as an alternative to the Court's own officer. After the amendment, modern modes of communication — courier, fax, and electronic mail — were added as legitimate channels, reflecting the reality of contemporary commerce and litigation. The amendment simultaneously enabled the High Courts to frame their own rules to approve specific courier services and to regulate service by electronic means.

The Receiving Court's Duty: Rule 23

When the Court issuing the summons sends it to another Court under Rule 21, the receiving Court does not become merely a postman. Order V, Rule 23 imposes a positive obligation upon the Court to which the summons has been sent: it shall, upon receipt, proceed as if it had been issued by itself, carry out the service in accordance with the same procedure it would apply in ordinary cases, and return the summons to the Court of issue together with the record of its proceedings. This ensures that the formalities and safeguards of service are not diluted merely because the process involves two Courts.

Defendant Residing Outside India: Rule 25

A qualitatively different situation arises when the defendant resides outside India and has no agent in India empowered to accept service. This is addressed by Order V, Rule 25, which provides that in such a case the summons shall be addressed to the defendant at the place where he resides and sent to him by post — or by courier, fax, or electronic mail as approved by the High Court — provided there is postal communication between that place and the place where the Court is situated.

The requirement of postal communication is a practical necessity: if there is no channel of reliable communication, service by post is not a legal fiction that can be pretended to. Where such communication does exist, however, the dispatch of the summons in the prescribed manner completes the procedural obligation of the issuing Court. Two special provisos attached to Rule 25 create specific mechanisms for service on defendants residing in Bangladesh or Pakistan. In both cases, the summons, together with a copy, may be sent to a Court in that country having jurisdiction where the defendant resides — and where the defendant is a public officer in Bangladesh or Pakistan not belonging to military, naval, or air forces, or a servant of a railway company or local authority, the summons may be sent to such officer or authority as the Central Government may, by notification in the Official Gazette, specify.

Service Through Foreign Territory: Rules 26 and 26-A

For defendants residing in foreign territories beyond Bangladesh and Pakistan, the Code provides a more nuanced route through Order V, Rule 26 and Rule 26-A. Rule 26 applies where, in the exercise of foreign jurisdiction vested in the Central Government, a Political Agent has been appointed or a Court has been established, with the power to serve a summons in the foreign territory; or where the Central Government has declared, by notification in the Official Gazette, that service by a particular Court in that territory of a summons issued by an Indian Court shall be deemed valid. In such cases, the summons may be sent to the Political Agent or to that Court by post, or if so directed, through the Ministry of External Affairs, or in such other manner as specified by the Central Government.

The critical provision that gives legal effect to such service is the endorsement mechanism: if the Political Agent or Court returns the summons with an endorsement purporting to have been made by the Political Agent, or by the judge or officer of the Court, to the effect that the summons has been duly served on the defendant, such endorsement shall be deemed to be evidence of service. The endorsement, in other words, is treated as a conclusive certificate by the receiving authority and the issuing Court proceeds on its basis.

Rule 26-A goes further and deals with service on defendants in any foreign country where the Central Government has declared, by notification, that summonses may be sent to a specified officer of that foreign country's government. In such cases, the summons may be sent to such officer through the Ministry dealing with Foreign Affairs, and the endorsement of that officer confirming service shall likewise be deemed to be evidence of service. This provision channels service through diplomatic routes and reflects India's treaty obligations with various countries in matters of judicial cooperation.

Special Cases: Prisoners, Public Officers, Soldiers

The Code deals separately with defendants who fall into special categories, each presenting its own difficulty in service.

Where the defendant is confined in a prison, Order V, Rule 24 provides that the summons shall be delivered or sent — by post, courier, fax, or electronic mail as approved by the High Court — to the officer in charge of the prison, who is then responsible for ensuring it is served on the defendant.

Where the defendant is a public officer not belonging to the military, naval, or air forces, or is a servant of a railway company or local authority, Rule 27 empowers the Court, if it appears most convenient, to send the summons for service to the head of the office in which the defendant is employed, together with a copy to be retained by the defendant. Many High Courts — Bombay, Karnataka, Madras, and Kerala — have amended this rule to require the summons in such cases to be sent by registered post, pre-paid for acknowledgment, rather than by ordinary dispatch.

Where the defendant is a soldier, sailor, or airman, Rule 28 provides that the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant. The Allahabad High Court has added an important gloss by further amendment: where the commanding officer's address is not known, the Court may apply to the officer commanding the station where the defendant was serving when the cause of action arose to supply the address; and where personal service is not practicable, the Court shall issue the summons to the defendant at the address so supplied, by registered post.

The Duty of the Person to Whom the Summons is Delivered: Rule 29

Whether the summons is delivered to the officer in charge of a prison, to the head of a government office, or to a commanding officer, Order V, Rule 29 imposes a statutory duty on that person. He is bound to serve the summons if possible and to return it under his signature with the written acknowledgment of the defendant — and such signature shall be deemed to be evidence of service. Where service proves impossible for any cause, the summons must be returned to the Court with a full statement of the cause and the steps taken, and that statement shall be deemed to be evidence of non-service. This closing provision ensures that the chain of responsibility in extra-territorial service is never left hanging — it ties up the administrative loop by requiring the person entrusted with service to report back definitively, either with proof of service or with a clear account of its failure.

The entire scheme, read as a whole, rests on one overarching principle: the procedural machinery of the Court must reach the defendant wherever he may be found, without compromising the integrity of the service or the defendant's right to know that a suit has been filed against him.