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Report No. 163

Order IX

Appearance oh Parties and Consequence of Non-Appearance

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2. Dismissal of suit where summons not served in consequences of plaintiff's 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 of 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.

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5. Dismissal of suit where plaintiff, after summons returned unserved, fails for one months to apply for fresh summons.- (1) Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time,

in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

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The Code of Civil Procedure (Amendment) Bill, 1997 Back




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