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Report No. 27

Order IX, rule 2

Where the plaintiff fails to file the copies of the plaint, etc., as required by Order VII, rule 9, the question arises what should be the consequences of such failure. Under the Calcutta Amendment to Order VII, rule 11 read with Order VII, rule 9(1A) (inserted by the Calcutta Amendment), the plaint shall be rejected in such cases. Under the Allahabad Amendment to Order IX, rule 2, the court has the power to dismiss the suit in such a case. In both the cases, a fresh suit is not barred (Order VII, rule 13 and Order IX, rule 4); but, in the case of a dismissal, the suit can be restored under Order IX, rule 4. An order for ejection is appealable as a decree. It is considered, that a provision for dismissal would be proper and should be adopted. Compare the existing provision for failure to pay fees, etc.

Order IX, rule 4

This is consequential1.

2. See Order 9, rule 2 as proposed, and Order 7, rule 9 as proposed.

Order IX, rule 5(1)

Order IX, rule 5(1) provides that where a plaintiff fails to apply for a fresh summons (after the summons on the defendant is returned unserved), the Court shall dismiss the suit (except in certain cases). The period prescribed for the application for a fresh summons is three months, at present. The original period was for one year, but it was changed to three months by the Code of Civil Procedure Amendment Act (24 of 1920). The period has been changed into two months by local Amendments by the High Courts of Bombay and Gujarat, and one month in Kerala. The proposed amendment reduces it to two months1.

3. The history of this rule and its scope are discussed in Shaw & Co. v. B. Shamaldas and Co., AIR 1954 Cal 369 (371).

Order IX, rule 6

The question whether the court should have power to give a decree, if it thinks fit, on the basis of a pleading without formal evidence, where the case proceeds ex parte, has been considered. As pleadings are not required to be on oath1, it has been considered unnecessary to make such a change.

It has been held by the Supreme Court2, that even when the defendant against whom a case has proceeded ex parte does not assign good cause for his previous non-appearance, he has a right to participate from the stage at which he appears. The decision of Wallace J. in the Madras case3 was approved. The under-mentioned decisions4 may be seen as an illustration of the application of the rule enunciated by the Supreme Court. it is considered unnecessary to make any provision codifying the proposition laid down by the Supreme Court.

1. See the discussion relating to Order 6, rule 15.

2. Sangram Singh v. Election Tribunal, Kotah, (1955) 2 SCR 1: AIR 1955 SC 425 (431), para. 28.

3. Venkatasubbiah v. Lakshmi, AIR 1925 Mad 1274.

4. Bindu Prasad v. United Bank, AIR 1959 Pat 152; Mahant Ramji Das v. Bhupinder Singh, AIR 1962 Punj 443; Kumara v. Thomas, AIR 1961 Ker 287.

Code of Civil Procedure, 1908 Back

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