Report No. 27

"2. Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs.- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made .....................if, notwithstanding such failure, the defendant .............................attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer."

Order IX, rule 4

In rule 4 of Order IX of the First Schedule to the principal Act, for the words "his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons", the words "such, failure as is referred to in rule 2" shall be substituted.

Order IX, rule 5

In rule 5 of Order IX of the First Schedule to the principal Act in sub-rule (5), for the words "three months", the words "two months" shall be substituted.

Order IX, rule 13

To rule 13 of Order IX of the First Schedule to the principal Act, the following proviso shall be added, namely:-

"Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing in sufficient time to appear and answer the plaintiffs claim".

[Cf. Amendments in Madras, Orissa, Allahabad, Madhya Pradesh and Andhra Pradesh.]

For rule 2 of Order X of the First Schedule to the principal Act, the following rule shall be substituted, namely:-

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