Section 7

Amendment status not verified — confirm the current text below against the official source.

Causes in which the Supreme Court takes cognizance at the first and sole instance. (Original jurisdiction of Supreme Court). Article 226 – How distribution is done - In the distribution, the order of the precedence of the judges shall be taken into consideration as if there was only one section. After the proceedings are numbered in each category, they are entered in a box with spheres with numbers corresponding to the files or papers which are yet to be distributed in lower category. The Chief Justice by taking one by one shall read in loud voice the number which is coming out, the head of the registry shall read in loud voice the surname of the judge to whom the proceedings are allotted, as per the order, and will write on front page of the proceeding the same surname of the judge and will make necessary entry to that effect. The same steps will be followed successively in the subsequent categories. § 1: There being in any category only one proceeding for distribution, in the boxes four spheres 74 shall be put with the numbers corresponding to first four judges to fill up in this category and number which comes out shall indicate the judge to whom the proceeding is allotted. § 2: The judge of the turn shall take note of the numbers which are coming out and he shall revise the registration of the distribution which the head of the office will present along with the file after the distribution is over. If he finds that the notings are in accordance with the process of the distribution he will put the date and initial it. Article 227 – Second distribution - If in the act of the distribution it is found that there is an impediment against the judge to whom the proceeding was allotted, soon a second distribution shall be done by the judge of the respective section. The same procedure will follow where the impediment was supervening. The judge to whom the proceeding papers were allotted in the second distribution shall follow the normal course and shall not return it back to the office the proceedings even though the impediment of first judge has ended and he has not given his opinion; but moment the impediment ceases, he will be competent to express his opinion in the proceedings and proceed with normal course after the proceedings had come back to the registry. SUB-SECTION II SUMMONS AND NOTICES DIVISION I GENERAL PROVISIONS Article 228 – Purpose of summons and of notice - The service of summons is an act by which the defendant is informed that a suit has been instituted against him and is called upon to defend himself. By similarity the same procedure is followed to call upon for the first time any interested person in cause. Service by notice is meant to, in any other cases, call upon a party to the court or to give him knowledge of any act or any fact.  Articles 228-263 - Summons and notices - Corresponding provisions in C.P.C. 1908: - o Issue and service of summons - Ss. 27-32 – O.V. 75 Article 229 – Need for prior orders - The service of summons and sundry notice shall not be effected, without prior order of the judge. The notice in relation to pending suit is to be considered as a necessary consequence of the order which fixes date for performance of any act or any step in which specific persons should appear before the court or for which the parties have right to remain present; also notice should be served, independent of any express order of all the judgments and orders of which the law directs notice and those which may be adverse to the parties. Article 230 – Summons and Notices to Diplomatic Agents - With reference to diplomatic agents whatever is provided in the treaties is to be followed and in the absence of such stipulation, the principle of reciprocity follows. Article 231 – Bar on summoning on certain days - Nobody should be summoned or no notice to be given on the day of marriage, on the day of the death of the spouse, father, mother or son, even during subsequent eight days. In the event of the death of any other ascendant or descendent, brother or a keen in the same degrees in which the parents have been mentioned in this article, the prohibition includes day of death and subsequent three days. Article 232 – Need for witnesses - If the person who has been summoned or notice is issued does not want to sign, does not know to sign or is physically unable to sign, two witnesses shall intervene; the same shall be followed when the bailiff does not know the person who was served and the letter does not produce identity card. Witnesses shall sign the certificate if they know to sign. DIVISION II SERVICE OF SUMMONS Article 233 – On whom summons is to be served - The service of summons is to be made on the defendant personally. It may be made on different person when the law expressly permits or when the defendant had appointed an attorney giving powers to receive the summons. The incapable, the uncertain, the collective bodies and inheritances shall be summoned through 76 their representatives. Wherever the representation may be made by more than one person, it is sufficient that service be made in any one of them. Article 234 – Where should summons be served - The service of summons may be effected at any place where the person to be summoned is found, but with care and discretion necessary to avoid unnecessary vexation. Nobody may be served within places of worship or while busy in any act of the public service which is not to be interrupted. The representatives of collective bodies shall be summoned at the house or place of their residence, when situated within the area of the administrative division where the suit is filed or where head office of the collective body is located. In any other case they shall be summoned in the head office of the body, if the competent representative is present or any other employee; same procedure will be adopted when after finding that they are not found at residence, or no entry of the official was permitted whichever may be the circumstances. The service made in person of the employee or the circumstances, as above, has the same effect of service of summons on the person of the representative. Article 235 – Service in case of resistance to the entry of the official in the house of the party - If the Bailiff having come to the residence of the party to be served finds resistance, which he cannot overcome even by using violence, shall effect service on any other person who is the occupant of the house preferring always relatives of the person to be summoned, even if he is informed that he is absent. When none of the persons at the house is ready to receive the summon, the same shall be effected on the neighbour. If there are no neighbours or if they refuse to accept and transmit the service to the person concerned, they shall affix the notice at the door of the house of the person to be served in the presence of two witnesses, with one note with all the particulars to know what is the purpose of the summons, day on which it took place, the time during which the person summoned should present his defence and the consequences of default in submitted of the defence. In the note it will be further declared that duplicate is available in the registry to enable the person served to collect the copy at the office of the court with all particulars if there is only distribution. The note shall be 77 signed by the bailiff and by witnesses if they know to sign. § 1: The summons effected as per this article shall have same effect of summons served on the defendant himself. § 2: The persons of the house or neighbours, who do not permit the entry for the service of summons or having received it is established that they did not hand over the duplicate to the person to be summoned shall incur penalty for offence of disobedience and when, after having received the papers, failed to deliver it to the concerned party. In case the notice is served on a neighbour who is unable to meet the person concerned, it is sufficient compliance on his part, if he hands over a copy to any person of the house who shall deliver the same to the person to be served. Article 236 – Summons where the party is unable to receive it - When the official is unable to effect the service because the defendant suffers from dementia or any other grave reason unable to receive the summons, he shall issue the certificate to that effect. Notice of the same shall be given without any prior order of the court immediately to the plaintiff who will take appropriate steps or insist that personal service be made, depending upon the exact information of the official. When the plaintiff insists on personal service, the judge shall decide whether the service should be made as prayed after collecting the information and after giving the evidence which is found necessary. § 1: If it is impossible, on account of dementia, the cause is found justified on the basis of certificate issued by Director of the establishment where a person was interned. If he is not interned, certificate from two specialists in Psychiatry or proof of dementia by way of examination of 3 credible witnesses. § 2: In the event the impossibility is arising from other cause of permanent character, like deaf - dumbness, paralysis, blindness, the justification shall be made equally by way of evidence of the witnesses of recognised probity up to 3 in number or production of certificate issued by two doctors. § 3: If the impossibility consists in serious and acute sickness, involving risk of life of the person to be summoned, the proof may be by a certificate issued by the physician treating the person or by the evidence of the witnesses of recognised probity. § 4: Once the impossibility is established, a curator shall be appointed for the protection of the 78 person to be summoned, with the preference of person appointed as curator as per clauses no. 1, 2 and 3 of article 320 of the Civil Code. Such appointment is restricted to the suit in question and without any other effects. The service shall be made on the person of the curator. In the event it is found that in the case foreseen in paragraph 3, after service of summons, the proceedings shall he stayed till the person to be summoned improves; such suspension shall not last for more than 60 days. If in the meantime the defendant expires, the suspension shall last until the heirs are brought on record. When the curator does not contest, what is provided in article 15 shall be observed. Article 237 – Absence of party to be summoned at uncertain place - Where the official, upon the permission to enter in the residence of the person to be summoned, certifies that he is not at home and he is informed that he is out of the locality, but at a specific place, he will try to obtain the precise indication of his whereabouts and the probable time of his absence of all the details a report shall be prepared and shall be signed by the person who furnishes the information. § 1: The registry, without need from any order from the court, shall immediately communicate the record and details to the plaintiffs, who shall apply for service of summons at the place indicated, if he does not like wait for the return of the defendants. § 2: If the person to be summoned is not found in the place indicated, what is provided in the article 235 shall be observed. There being the ground to hold that the information supplied is malicious, the person who gave the information shall be subject to the penalty of giving false information to the public authority. Article 238 – False address – House closed and uninhabited - If the official tries to find the person to be summoned as per the information obtained about his residence and he is informed that he never stayed at that place or that he does not reside at such place, information shall be collected in respect of residence of the person to be summoned. Record shall be made of all the above and signed by the persons from whom the first information was obtained. If the official finds that the house is closed and with all the indication that it is not has been occupied, record shall be made to that effect and whatever information is obtained shall be inserted in that report. In either case immediate information will be given to the plaintiff in order that the plaintiff takes adequate steps. 79 § Sole Paragraph: If in the case foreseen in the first paragraph of this article it is found that the person to be summoned is residing at the place initially indicated, the person who gave the false information shall be subject to be prosecuted as per paragraph 2 of the article 237. Article 239 – Absence of person to be summoned at uncertain place - If the official does not find the person to be summoned at his last known residence and he is informed there that he is absent from the locality at an unknown place, he shall record such information which will also be signed by the person giving such information. When the plaintiff has not indicated that the defendant as resident at an uncertain place, information of the report shall be immediately given to him in order to take appropriate steps. § 1: Service by publication shall not be done unless proper inquiry is made by the judge by all means at his disposal that the residence of the person to be summoned is not known, information being always obtained from the parish priest and of village administration official of the respective place. § 2: What is provided in second part of paragraph 2 of article 237 shall be followed in the present case. Article 240 – Service at fixed time - If the official does not find the person to be summoned and there is no case as foreseen in articles 235 to 239, he shall give the indication of a specific time for the first working day to any person in his house with preference to the relatives. On the day and hour indicated above he shall effect the service if the defendant is found; and if not service shall be effected on the person to whom the time was given and if even he is not found on in any other person of the house, with preference to the relatives. When none of the persons of the house offer to receive the summons, what is provided in the second and third clause of article 235 and paragraphs 1 and 2 of article 235 shall be followed. In the event on the day and time already indicated it is found that the house is closed and not habitated, a notice will be pasted on the door with the note as provided in article 235, and by this method a service of summons shall be deemed as made in the person to be summoned. Article 241 – Mode of service if there is evasion - If it is not possible to effect service of summons on the defendant in the manner indicated in the previous articles and there is a ground 80 to believe after two unsuccessful attempts made, that he is avoiding service of summons, the court official shall go accompanied by the representative of a public authority or police force and serve the defendant at any place he is found. The report signed by the said official and by the authority shall constitute full proof of the service. § Sole Paragraph: In the case foreseen in this article, the court official and the agent of the administrative authority have the liberty to enter into the house to effect the service, on the same terms as the Code of Criminal Procedure permits execution of warrants and it will be so declared in the writ of service of summons. Such warrant is executable in whole territory of the republic with the approval of the local judge when it is necessary to enforce the order outside jurisdiction of the judge who signs it. Article 242 – Formalities for service on person - Where the service of summons has been made in the person of the defendant, the official shall deliver to the defendant the duplicate of the plaint and will inform him the time limit within which he has to give his defence explaining the effects of non contest. In the duplicate a note is made of the date of service, time given for filing defence, the consequences and the court in which the suit is pending, if allotment has already been done. Of all this report shall be made and signed by the defendant. § Sole Paragraph: If the defendant refuses to receive the duplicate, the official of the justice shall state so in presence of two witnesses and that the copy is available in the registry. In the report, specific mention shall be made of this event.  There could be certain cases in which delivery of the duplicate to the summoned person does not arise like summons for pre-trial conciliation, summons for inventory (Art.1375) and summons to the spouse and creditors for execution (Art.864). In such cases however the note mentioned in this article shall be handed over and the notings there in shall be according to the purpose to which they are meant. Article 243 – Formalities for service on a person other than the person summoned - When the service of summons has been made on a person different from the defendant, the official shall hand over to such person the duplicate with the note mentioned in previous article and shall cast obligation on such person to convey it to the addressee and that for all purposes he is deemed as served for the purpose of the action as shown in the duplicate. The report shall be signed by the said person. § 1: The person who has received the summons is bound to perform his duty failing which he 81 shall incur in the liability foreseen in paragraph 2 of article 235. § 2: In the case foreseen in this article, as well as in the cases where the service is deemed as made by simple affixation of the note at the residence of the person summoned, the official shall send to the defendant a registered letter, with acknowledgment due in which he gives notice of the date of summons, in the manner in which it is done and indicating the time limit within which he may defend and the respective consequence in the case of default and what he is to do with the duplicate. When the service is done on a person, identification of that person shall be done. Article 244 – Service on person residing abroad - When the defendant resides in a foreign country, whatever has been stipulated in the treaties or international conventions shall be followed. In the absence of the stipulation, the service of summons shall be made by postal service by registered letter with acknowledgment due, with the remittance of respective duplicate. In the letter it will be declared that the addressee is summoned for the purpose of the suit as referred to the duplicate with the precise indication of the court where the suit is pending and time up to which the defence can be filed and what are the consequences in the case of default; also mention shall be made of the section of the court, if allotment has already been done. Service is deemed as effected on the date when acknowledgment due is signed which will be annexed to the file. § 1: The notice shall be signed by the person summoned or by the postal employee as provided in the postal regulations. § 2: Whatever is provided in this article shall be observed when the locality where the defendant resides is known even though the road and police number of his residence, is not known. Article 245 – Service of defendant taken as residing abroad when the letter is returned - In the event the letter is returned without any indication or with the indication that addressee is not known or is unknown or is whereabouts are not known, the office immediately will bring this fact to the knowledge of the plaintiff irrespective of any order. If a defendant is a Portuguese subject the plaintiff may apply for service through the nearest Portuguese consulate; if he is a foreigner and if there is no Portuguese consulate and a distance is not more than 50 kilometers, the service may be sought by way of rogatory letter. Instead, the plaintiff may apply for service by publication and declaring whether the defendant 82 has had residence in the continent or adjacent islands and in the affirmative, in which place. In such case the judge shall make efforts to inquire through the Parish Priest or the Village Official whether the residence of the person to be served is known and shall order service through publication if the information is received that he is at uncertain part. § 1: If the last residence is in different judicial division or sub division, information will be solicited from the other judge so that information is transmitted by the other judge. § 2: What is provided in paragraph 1 shall apply equally in the event the acknowledgement due is not returned or the postal receipt is returned without signature. § 3: If the plaintiff has made a false declaration, he shall be incurring the penalty of paragraph 2 of article 237. Article 246 – Summons through Consulate - The service of summons through the consulate shall be solicited by the court by request letter accompanied by the duplicate. In the letter request shall be made for delivery of duplicate to the person to be summoned and with the writing that the duplicate is to be delivered to the person to be summoned. § l: The costs incurred towards the service and which are indicated by the consulate shall be included in the costs. § 2: If the consulate gives information that the person to be summoned is unknown or is in uncertain part immediately service will be made by publication of the summons in the newspapers. Article 247 – Summons by publication - The service by way of publication is to be done not only when the person to be summoned is at an uncertain place in accordance with previous provisions, but also even when the persons to be summoned are uncertain. Article 248 – Form of service by publication for uncertainty of place - The service by publication on account of uncertainty of place shall be done by affixation of the notices and by publication in the newspapers. The notices shall be affixed one at the door of the court, other at the last residence of the defendant in the country and third one at the door of the house of the local administrative authority of the respective parish. 83 The notices shall be published in two consecutive issues in the most widely read newspaper of the place where last residence of the persons to be summoned was found; if there is no newspaper it shall be published in two issues of the most widely read newspaper of the judicial division; to which his residence belongs, if even there is no newspaper, in two issues of the newspaper most widely read in its respective administrative district, and if also there is no paper available in the district of the publication will be done, 2 issues in one of the most widely read newspapers of Lisbon. § Sole Paragraph: In the inventories of orphan’s jurisdiction and in the concise proceedings there will only be affixation of the notices. Article 249 – Contents of the notices - In the notices for publication, as far as possible, the details of the action are to be given such as for which purpose the absentee has been summoned, indicating who has instituted the case and in substance what is the relief sought by the petitioner; besides also the court where the file is pending will be mentioned and the respective section of the court if there has been distribution, extension of period, time period for the defence and the consequences of the default in case of absence of defence and adding thereafter the time expires not only fixed in the case but also necessary extension starting from publication of last announcement. The announcement shall reproduce the text of the notices. § Sole Paragraph: The extended period shall vary between 30 days to 6 months. Article 250 – How the time for defence is counted in case of service by publication - The notice is deemed as served on the day when the last publication is done. From this date the period of extension is to be added. This addition shall be done to the statutory period and only from the end of the extended period, the defence is required to be submitted. Article 251 – Form of service by publication due to uncertainty of person - The service by publication on account of uncertainty of the person shall be done in accordance with the articles 248 to 250, with the following modifications: