summons have not been served yet
2) since it snot served court would adjourn the case
3) court will not pass exparte decree now
4) it is not service of summons
How many chances does court give before declaring ex parte
Sir, This is regarding the suit filed on me and my mother to collect the debt taken by my father before his demise. I can prove that I am not eligible to pay his debt because the property that debtor attached didn’t come from my father. It was my grandfathers property. And also my father hasn’t contributed the money to the family as he had other bad habits which we already given a newspaper notification before his demise that not to give any debts to my father However, right now, I am staying in Vizag and I got a call on my fathers mobile from the court person that I got the notice to my address in my village. I asked him to wait for 4 or 5 days as I am in hospital in Vizag. And no one is available at that address. After my fathers death, my mom is also staying with me. (Debtor’s lawyer has given him my fathers mobile number to inform me about the notice as the door was locked. He doesn't have my contact information). Recently I was admitted to the hospital in Vizag for some small kidney infection. I was in the hospital for 3 days and got discharged on (30th June 2025). And I cannot travel to my hometown to take notice now. I checked online and below is the history of case and its status with dates : Filing Date : [deleted] Registration Date:[deleted] On [deleted] : Business:Issue summons to defendant call on [deleted] Next Purpose:SUMMONS Next Hearing Date:[deleted] On [deleted] : Business:Issue fresh summons to defendant TC and RP call on [deleted] Next Purpose:SUMMONS Next Hearing Date:[deleted] Because of kidney infection and swelling, the doctor suggested not to do long travel for the next 20 days. (But this suggestion is oral and not in the discharge summary.) As I am not at that address now and cannot go there, I am thinking of skipping this summons and taking the next summon when I will go to my hometown after a month. By that time, the next hearing date also passes and I may get my next summon. So I am thinking of informing the court person that I cannot come to my hometown this month, giving him a proper reason for my kidney infection and will take the next summon. My concern is : 1.Since this is the first summon from the court and I am not in the address right now with proper reason, will court gives next summon or it will give ex parte decree ? Because I have read somewhere that the court considers as summons served even if the person is just aware of the summons and though the actual hard copy of summons is not served. 2.Since that guy called and informed me, will court considers as summons served? 3.And as I am not doing it intentionally and I have proper hospital admitted records, can I show to court if required later for the reason of not taking the summons? But there is a gap of one month from hospital admission and next hearing date. And my point of view is that I will also get more time to get all the required proofs arranged if I take the next summons. Please give suggestions.
Asked 5 months ago in Civil Law
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7 Answers
1. If your father is the defendant then there is no necessity for you to be worried about it, the court will pass orders to send summons to the defendant with fresh address and it will not pass any exparte order within one summons especially if the summons could not be served on the defendant for the reasons stated therein. The court will post the matter to some other date and may order for fresh summons with fresh address .
2. You are not the defendant hence it cannot be considered as service of summons, however if you are the defendant and you are made aware of the pending litigation and the next date f hearing, yu can engage the services of an advocate and instruct him to file vakalatnama on your behalf on the next date of hearing provided you are willing to participate in the suit and challenge the same properly.
3. For practical issues you can consult an advocate in the local and take proper action to prevent any adverse effect or orders against you.
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Yes, court usually gives 2–3 chances before passing an ex parte decree. So missing the first summons with valid reason is not fatal.
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No, a phone call is not valid service of summons under law. Summons must be served as per CPC (registered post, personal, etc.).
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Yes, your hospital records and health condition can be a valid reason for missing the summons. You can submit them later if needed.
Suggestion: File a written intimation or application via post/email to the court ASAP explaining your situation, to avoid ex parte risk.
Notice is served and the party is deliberately not attending court then generally court marks them exparte and proceed with the matter
1. Unless and until there is completion of service of summons, the court cna not fix ex parte hearing.
2. Even after valid service of summons upon the other party court gives 1-2 more opportunities before the suit is fixed for ex parte.
Dear Sir/Madam,
it is not clear as to whether the case is filed on your name or name of your father. if the same is in your name, do engage one advocate and send him to court with submissions you have now, i.e. regarding your health issues and asking time for submission of reply. if the case is on the name of father, just do noting and let the name of yourself and mother is substituted in place of the father.
You are legally obligated to appear and respond to the civil suit only after valid service of summons as per the Code of Civil Procedure, 1908. The court must ensure that service of summons is effected properly, and only after that can it proceed to hear the matter or pass an ex parte decree if the defendant fails to appear.
You received an informal phone call from a court staffer or process server on your deceased father's mobile number. This call does not amount to valid service in the eyes of the law. Summons must be served either:
Personally to you or your authorized family member,
Through registered post (RPAD) or courier with acknowledgment,
Or by affixing the summons on your residence with court permission if all other modes fail.
The fact that you were hospitalized for a genuine medical reason and are advised against long travel further strengthens your case. The court will not treat you as willfully evading service if you can demonstrate these facts.
However, since you are now aware that the court issued summons and an attempt at service was made, you should act proactively and responsibly to avoid the risk of an ex parte decree. Courts can presume valid service under Order V Rule 17 and Rule 19A CPC if the defendant is aware and does not appear, even if the summons is not physically delivered.
You should not ignore the case or wait for another summons. Instead, you should do the following:
File a vakalatnama through an advocate at the court where the case is pending, stating that you are unable to appear due to medical reasons and have not yet received a valid copy of the summons. Your advocate can also file a memo requesting time to receive formal service and file your written statement.
Preserve your hospital admission and discharge summary, even if it does not mention travel restriction. Ask your doctor to issue a brief certificate stating your current health condition and fitness for travel. This can be produced later if needed.
If you are absolutely unable to respond before the next hearing, ask your lawyer to file a short application for exemption from appearance with medical grounds and request that the matter be adjourned and re-issuance of summons be directed.
If the court proceeds ex parte and passes a decree, you can later file an application under Order IX Rule 13 CPC to set aside the decree by showing sufficient cause for non-appearance.
To summarize:
The phone call does not amount to legal service of summons.
But since you are now aware of the case, you should respond through counsel and not ignore the matter.
Courts generally do not pass ex parte decrees on first summons unless it finds willful default or evasion.
You have reasonable grounds (medical and procedural) to seek more time or request re-service.
In case you need my assistance in the matter I can be contacted on
Regards,
YUGANSHU SHARMA
SYS LAW OFFICES
