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Friday, 13 November 2026 Judgments, law jobs and study notes, written by a practising advocate
Code of Civil Procedure, 1908 · Order IX: Appearance Of Parties And Consequence Of Non-appearance

Order IX Rule 5 CPC: Dismissal of suit where plaintiff after summons returned unserved, fails for seven days to apply for fresh summons

Bare Act text

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 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.

Amendment notes

  1. Subs. by Act 46 of 1999, s. 19, for “one month” (w.e.f . 1-7-2002).
  2. Subs. by Act 24 of 1920 s. 2, for sub-rule (1).

Text of the Code of Civil Procedure, 1908 (Act No. 5 of 1908), First Schedule, as amended, including the changes for commercial disputes made by the Commercial Courts Act, 2015. Source: India Code, Government of India.

In simple words

Where a summons to the defendant, or one of several defendants, is returned unserved and the plaintiff fails for seven days from the return to apply for a fresh summons, the Court must dismiss the suit against that defendant. The plaintiff avoids this by satisfying the Court within that period that he failed despite best endeavours to find the defendant's residence, that the defendant is avoiding service, or that there is other sufficient cause for extending time. The plaintiff may bring a fresh suit, subject to limitation. The 1999 amendment substituted seven days for one month.

Order IX: Appearance Of Parties And Consequence Of Non-appearance

  1. 1 Parties to appear on day fixed in summons for defendant to appear and answer
  2. 2 Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs
  3. 3 Where neither party appears suit to be dismissed
  4. 4 Plaintiff may bring fresh suit or Court may restore suit to file
  5. 5 Dismissal of suit where plaintiff after summons returned unserved, fails for seven days to apply for fresh summons
  6. 6 Procedure when only plaintiff appears
  7. 7 Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance
  8. 8 Procedure where defendant only appears
  9. 9 Decree against plaintiff by default bars fresh suit
  10. 10 Procedure in case of non-attendance of one or more of several plaintiffs
  11. 11 Procedure in case of non-attendance of one or more of several defendants
  12. 12 Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person
  13. 13 Setting aside decree ex parte against defendant
  14. 14 No decree to be set aside without notice to opposite party
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