Table of Contents
What is the meaning of Parties to appear on day fixed in summons for defendant to appear and answer? What is Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs? Where neither party appears, suit to be dismissed? What is the meaning Plaintiff may bring fresh suit or Court may restore suit to file? What is Dismissal of suit where plaintiff after summons returned un served, fails for one month to apply for fresh summons? What is the Procedure when only plaintiff appears? What is the Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance? Rule 1, 2, 3, 4, 5, 6 and 7 of Order IX of Code of Civil Procedure 1908
Parties to appear on day fixed in summons for defendant to appear and answer, Dismissal of suit where summons not served in consequence of plaintiffs failure to pay costs, Where neither party appears, suit to be dismissed, Plaintiff may bring fresh suit or Court may restore suit to file, Dismissal of suit where plaintiff after summons returned un served, fails for one month to apply for fresh summons, Procedure when only plaintiff appears and Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance are defined under Rule 1, 2, 3, 4, 5, 6 and 7 of Order IX of Code of Civil Procedure 1908. Provisions under these Rules are:
Rule 1 Order IX of Code of Civil Procedure 1908 “Parties to appear on day fixed in summons for defendant to appear and answer”
On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.
Rule 2 Order IX of Code of Civil Procedure 1908 “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 of 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.
Rule 3 Order IX of Code of Civil Procedure 1908 “Where neither party appears, suit to be dismissed”
Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.
Rule 4 Order IX of Code of Civil Procedure 1908 “Plaintiff may bring fresh suit or Court may restore suit to file”
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.
Rule 5 Order IX of Code of Civil Procedure 1908 “Dismissal of suit where plaintiff after summons returned un served, fails for one month 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.
Rule 6 Order IX of Code of Civil Procedure 1908 “Procedure when only plaintiff appears”
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-
(a) When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte;
(b) When summons not duly served- if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time- if it is proved that the summons was served on the defendant, but not in sufficient time to enable him, to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.
Rule 7 Order VIII of Code of Civil Procedure 1908 “Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance”
Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing. appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed to his appearance.