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Bare acts > Code of Civil Procedure, 1908 > Order 9 Rule 5
 
   


 


5. Dismissal of suit where plaintiff, after summons returned unserved, fails for seven days 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 seven days from the date of 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 of 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.

HIGH COURT AMENDMENTS

Bombay.- In Rule 5, for sub-rule (1), the following shall be substituted:

“(1) Dismissal of suit where plaintiff after summons returned unserved fails for two months to apply for fresh summons - 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 two months from the next hearing of the suit to apply for 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 tailed, after using his best endeavour 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 case for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.” (31.12.1987).

Gujarat.- Same as in Bombay (1).

Kerala.- (i) For the existing marginal note the following shall be substituted, namely:

“Dismissal of suit where plaintiff fails to apply for steps”; (7.4.1959)

(ii) in sub-rule (1) for the words “three months from the date of the return - returns made by the serving officer” substitute the words “one month from the next hearing of the suit or from the notice regarding the non-service of summons given by the Court to the plaintiff or counsel”. (9.6.1959).

Orissa.- For Rule 5 substitute the following:

“5. Dismissal of suit where plaintiff, after summons returned unserved, fails to file necessary requisites for fresh summons.— (1) Where after summons has been issued to the defendant, or to one of similar defendants and returned unserved, the plaintiff fails to file necessary requisites for the issue of a fresh summons, within the period fixed by the Court, it shall make an order that the suit be dismissed as against such defendant; and

(2) in such a case the plaintiff may (subject to the law of limitation) bring a fresh suit.” (3.5.1968)

 

 

 

 

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