The Code of Civil Procedure, 1908 (Part-II)
ORDER
IX
APPEARANCE OF PARTIES AND CONSEQUENCE OF
NON-APPEARANCE
1.Parties to appear on day fixed in summons
for defendant to appear and answer.
2.Dismissal of suit where
summons not served in consequence of plaintiff's failure to pay
costs.
3.Where neither party appears, suit to be
dismissed.
4.Plaintiff may bring fresh suit or Court may
restore suit to file.
5.Dismissal of suit where plaintiff,
after summons returned unserved, fails for three months to app]y for
fresh summons.
6.Procedure when only plaintiff appears.When
summons duly served.When summons not duly served.When summons
served, but not in due time.
7.Procedure where defendant
appears on day of adjourned hearing and assigns good cause for
previous non-appearance.
8.Procedure where defendant only
appears.
9.Decree against plaintiff by default bars fresh
suit.
l0.Procedure in case of non-attendance of one or more
of several plaintiffs.
ll.Procedure in case of non-attendance
of one or more of several defendants.
12.Consequence of
non-attendance, without sufficient cause shown, of party ordered to
appear in person.
SETTING ASIDE DECREES Ex
pate
13.Setting aside decree ex parse against
defendant.
14.No decree to be set aside without notice to
opposite party.
ORDER X
EXAMINATION OF PARTIES BY THE
COURT
1.Ascertainment whether allegations in pleadings are
admitted are denied.
2.Oral examination of party, or
companion of party.
3.Substance of examination to be
written.
4.Consequence of refusal or inability of pleader to
answer.
ORDER XI
DISCOVERY AND
INSPECTION
1.Discovery by
interrogatories.
2.Particular interrogatories to be
submitted.
3.Costs of interrogatories.
4.Form of
interrogatories.
5.Corporations.
6.Objections to
interrogatories by answer.
7.Setting aside and striking out
interrogatories.
8.Affidavit in answer, filing.
9.Form
of affidavit in answer.
10.No exception to be
taken.
11.Order to answer or answer
further.
12.Application for discovery of
documents.
13.Affidavit of documents.
14.Production of
documents.
15.Inspection of documents referred to in pleading
or affidavits.
16.Notice to produce.
17.Time for
inspection when notice given.
18.Order for
inspection.
19.Verified copies.
20.Premature
discovery.
21.Non-compliance with order for
discovery.
22.Using answers to interrogatories at
trial.
23.Order to apply to minors.
ORDER
XII
ADMISSIONS
1.Notice of admission of
case.
2.Notice to admit documents.
3.Form of
notice.
4.Notice to admit facts.
5.Form of
admissions.
6.Judgment on admissions.
7.Affidavit of
signature.
8.Notice to produce
documents.
9.Costs.
ORDER XIII
PRODUCTION,
IMPOUNDING AND RETURN OF DOCUMENTS
RULES
1.Documentary
evidence to be produced at first hearing.
2.Effect of
non-production of documents.
3.Rejection of irrelevant or
inadmissible documents.
4.Endorsements on documents admitted
in evidence.
5.Endorsements on copies of admitted entries in
books, accounts and records.
6.Endorsements on documents
rejected as inadmissible in evidence.
7.Recording of admitted
and return of rejected documents.
8.Court may order any
document to be impounded.
9.Return of admitted
documents.
10.Court may send for papers from its own records
or from other Courts.
11.Provisions as to documents applied
to material objects.
ORDER XIV
SETTLEMENT OF ISSUES
AND DETERMINATION OF SUIT ON ISSUES OF LAW
OR ON ISSUES AGREED
UPON
1.Framing of issues.
2.Issues of law and of
fact.
3.Materials from which issues may be
framed.
4.Court may examine witnesses or documents before
framing issues.
5.Power.to amend, and strike out,
issues.
6.Questions of fact or law may by agreement be stated
in form of issues.
7.Court, if satisfied that agreement was
executed in good faith, may pronounce judgment.
ORDER
XV
DISPOSAL OF THE SUIT AT THE FIRST HEARING
1.Parties
not at issue.
2.One of several defendants not at
issue.
3.Parties at issue.
4.Failure to produce
evidence.
ORDER XVI
SUMMONING AND ATTENDANCE OF
WITNESSES
RULES
1.Summons to attend to give evidence
or produce documents.
2.Expenses of witness to be paid into
Court on applying for summons.Experts.Scale of
expenses.
3.Tender of expenses to witness.
4.Procedure
where insufficient sum paid in.Expenses of witnesses detained more
than one day.
5.Time, place and purpose of attendance to be
specified in summons.
6.Summons to produce
document.
7.Power to require persons present in Court to give
evidence or produce document.
8.Summons how
served.
9.Time for serving summons.
10.Procedure where
witness fails to comply with summons.
11.If witness appears,
attachment may be withdrawn.
12.Procedure if witness fails to
appear.
13.Mode of attachment.
14.Court may of its own
accord summon as witnesses strangers to suit.
15.Duty of
persons summoned to give evidence or produce
document.
16.When they may depart.
17.Application of
rules 10 to 13.
18.Procedure where witness apprehended cannot
give evidence or produce document.
19.No witness to be
ordered to attend in person unIess resident within certain
limits.
20.Consequence of refusal of party to give evidence
when called on by Court.
21.Rules as to witnesses to apply to
parties summoned.
12.Refund of balance
deposit.
13.Powers of Court
pending appeal.
14.Increase of security
found inadequate.
15.Procedure to enforce
orders of the Supreme Court.
16.Appeal from order
relating to execution.
17.[Repealed.]
ORDER XLVI
REFERENCE
1.Reference of question
to High Court.
2.Court may pass decree
contingent upon decision of High Court
3.Judgment of High Court
to be transmitted, and ease disposed of accordingly.
4.Costs of reference to
High Court.
4A.Reference to High
Court under proviso to section 113.
5.Power to alter, etc.,
decree of Court making reference.
6.Power to refer to High
Court questions as to jurisdiction in small causes.
7.Power to District
Court to submit for revision proceedings had under mistake as to
jurisdiction in small causes.
ORDER XLVII
REVIEW
1.Application for review
of judgment.
2.To whom applications
for review may be made.
3.Form of applications
for review.
4.Application where
rejected.
Application where
granted.
5.Application for review
in Court consisting of two or more Judges.
6.Application where
rejected.
7.Order of rejection not
appealable.Objections to order granting application.
8.Registry of
application granted, and order for re-hearing.
9.Bar of certain
applications.
ORDER XLVIII
MISCELLANEOUS
1.Process to be served
at expense of party issuing.Costs of service.
2.Orders and notices how
served.
3.Use of forms in
appendices.
ORDER XLIX
CHARTERED HIGH
COURTS
1.Who may serve
processes of High Court.
2.Saving in respect of
Chartered High Courts.
3.Application of
rules.
ORDER L
PROVINCIAL SMALL CAUSE
COURTS
1.Provincial Small Cause
Courts.
ORDER LI
PRESIDENCY SMALL CAUSE
COURTS
1.Presidency Small Cause
Courts.
APPENDICES TO THE FIRST
SCHEDULE
FORMS
A.-PLEADINGS.
1.Titles of suits.
2.Description of parties
in particular cases.
3.Plaints.
4.Written
statements.
B.-PROCESS.
C.-DISCOVERY, INSPECTION
AND ADMISSION.
D.-DECREES.
E.-EXECUTION.
F.-SUPPLEMENTAL
PROCEEDINGS.
G.-APPEAL, REFERENCE AND
REVIEW.
H.-MISCELLANEOUS.
THE FIRST SCHEDULE
ORDER I
PARTIES TO SUITS
1.Who may be joined as
plaintiffs.- All persons may be joined in one suit as plaintiffs in
whom any right to relief in respect of or arising out of the same
act or transaction or series of acts or transactions is alleged to
exist, whether jointly, severally or in the alternative, where, if
such persons brought separate suits, any common question of law or
fact would arise.
2.Power of Court to
order separate trials.- Where it appears to the Court that any
joinder of plaintiffs may embarrass or delay the trial of the suit,
the Court may put the plaintiffs to their election or order separate
trials or make such other order as may be expedient.
3.Who may be joined as
defendants.- All persons may be joined as defendants against whom
any right to relief in respect of or arising out of the same act or
transaction or series of acts or transactions is alleged to exist,
whether jointly, severally or in the alternative, where, if separate
suits were brought against such persons, any common question of law
or fact would arise.
4.Court may give
judgment for or against one or more of joint parties.- Judgment may
be given without any amendment-
(a) for such one or more
of the plaintiffs as may be found to be of entitled to relief, for
such relief as he or they may be entitled to;
(b) against such one or
more of the defendants as: may be found to be liable, according to
their respective liabilities
5.Defendant need not be
interested in all the relief claimed.- It shall not be necessary
that every defendant shall be in interested as to all the relief
claimed in any suit against him
6.Joinder of parties
liable on same contract.- The plaintiff may, at his option, join as
parties to the same suit all or any of the persons severally, or
jointly and severally, liable on any one contract, including parties
to bills of exchange, hundis and promissory notes.
7.When plaintiff in
doubt from whom redress is to be sought.- Where the plaintiff is in
doubt as to the person from whom he is entitled to obtain redress,
he may join two or more defendants in to order that the question as
to which of the defendants is liable, and to what extent, may be
determined as between all parties.
8.One person may use or
defend on behalf of all in same interest.- (1) Where there are
numerous persons having the same interest in one suit, one or more
of such persons may, with the permission of the Court, sue or be
sued, or may defend, in such suit, on behalf of or for the benefit
of all persons so interested.But the Court shall in such case give,
at the plaintiff's expense, notice of the institution of the suit to
all such persons either by personal service or, where from the
number of persons or any other cause such service is not reasonably
practicable' by public advertisement, as the Court in each case may
direct.
(2) Any person on whose
behalf or for whose benefit a suit is instituted or defended under
sub-rule (1) may apply to the Court to be made a party to such
suit.
9.Misjoinder and
nonjoinder.- No suit shall be defeated by reason of the misjoinder
or non joinder of parties, and the Court may in every suit deal with
the and matter in controversy so far as regards the rights and
interests of the parties actually before it.
10.Suit in name of wrong
plaintiff.- (1) Where a suit has been instituted in the name of the
wrong person as plaintiff or where it is doubtful whether it has
been instituted in the name of the right plaintiff, the Court may at
any stage of the suit, if satisfied that the suit has been
instituted through a bona fee mistake, and that it is necessary for
the determination of the real matter in dispute so to do, order any
other person to be substituted or added as plaintiff upon such terms
as the Court thinks just.
(2) Court may strike out
or add parties.- The Court may at any stage of the proceedings,
either upon or court may without the application of either party,
and on such terms as may appear to the Court to be just.order that
the name of any party improperly joined, whether as plaintiff or
defendant, be struck out, and that the name of any person who ought
to have been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all
the questions involved in the suit, be added.
(3) No person shall be
added as a plaintiff suing without a next friend or as the next
friend of a plaintiff under any disability without his consent.
(4) Where defendant
added, plaint to be amended.- Where a defendant is added, the plaint
shall, unless the Court, otherwise directs, be amended in such
manner as may be necessary, and amended copies of the summons and of
the plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant.
(5) Subject to the
provisions of the {.See now the Indian Limitation Act, 1908 (9 of
1908), s.22.}Indian Limitation Act, 1877, section 22, the
proceedings as against any person added as defendant.shall be deemed
to have begun only on the service of the summons.
Conduct of suit
11.Conduct of suit.- The
Court may give the conduct of the suit to such person as it deems
proper.
12.Appearance of one of
several plaintiffs of defendants for others.- (1) Where there are
more plaintiffs than one, any one or more of them may be authorized
by any other of them to appear, plead or r act for such other in any
proceeding; and in like manner, where there are more defendants than
one, any one or more of them may be authorized by any other of them
to appear, plead or act for such other in any proceeding.
(2) The authority shall
be in writing signed by the party giving it and shall be filed in
Court.
13.Objections as to
nonjoinder or misjoinder.- All objections on the ground of
nonjoinder or misjoinder of parties shall be taken at the earliest
possible opportunity and, in all cases where issues are settled, at
or before such settlement, unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be
deemed to have been waived.
ORDER II
FRAME OF SUIT
1.Frame of suit.- Every
suit shall as far as practicable be framed so as to afford ground
for final decision upon the subjects in dispute and to prevent
further litigation concerning them.
2.Suit to include the
whole claim.- (1) Every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his claim in
order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff
omits to sue in respect of, or intentional!: relinquishes, any
portion of his claim, he shall not afterwards sue in respect of the
portion so omitted or relinquished.
(3) A person entitled to
more than one relief in respect of the same cause of action may sue
for all or any of such reliefs; but if he omits except with the
leave of the Court, to sue for all such reliefs, he shall] not
afterwards sue for any relief so omitted.
Explanation.-For the
purposes of this rule an obligation and a collateral security for
its performance and successive claims arising: under the same
obligation shall be deemed respectively to constitute but one cause
of action.
Illustration
A lets a house to B at a
Yearly rent of Rs.1,200.The rent for tile whole of the years 1905,
1906 and 1907 is due and unpaid.A sues B in 1908 only for the rent
due for 1906.A shall not afterwards sue B for the rent due for 1905
or 1 907.
3.Joinder of causes of
action.- ( 1) Save as otherwise provided, a plaintiff-1 may unite in
the same suit several causes of action against the same defendant,
or the same defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the same
defendant or the same defendants jointly may unite such causes of
action in the same suit.
(2) Where causes of
action are united, the jurisdiction of the Court as regards the suit
shall depend on the amount or value of the aggregate subject-matters
at the date of instituting the suit.
4.Only certain claims to
be jointed for recovery of immovable properly.- No cause of action
shall, unless with the leave of the Court, be joined with a suit for
the recovery of immovable property, except-
(a) claims for mesne
profits or arrears of rent in respect of the property claimed or any
part thereof;
(b) claims for damages
for breach of any contract under which the property or any part
thereof is held; and
(c) claims in which the
relief sought is based on the same cause of action:
Provided that nothing in
this rule shall be deemed to prevent any party in a suit for
foreclosure or redemption from asking to be put into possession of
the mortgaged property.
(The First
Schedule.Order II.—Frame of suit.Order III Recognized agents and
Pleaders.)
Claims by or against
executor, administrator or heir
5.Claims by or against
executor, administrator or heir.- No claim by or against an
executor, administrator or heir, as such, shall be joined with
claims by or against him personally, unless s.the last-mentioned
claims are alleged to arise with reference to the r estate in
respect of which the plaintiff or defendant sues or is sued as
executor, administrator or heir, or are` such as he was entitled to,
or liable for, jointly with the deceased person whom he
represents.
6.Power of Court to
order separate trials.- Where it appears to the Court that any
causes of action joined in one suit cannot be conveniently tried or
disposed of together! the Court may order separate trials or make
such other order as may be expedient.
7.Objections as to
misjoinder.- All objections on the ground of misjoinder of causes of
action shall be taken at the earliest possible opportunity and, in
all cases where issues` are settled, at or before such settlement,
unless the ground of objection has subsequently arisen, and an,;
such objection not so taken shall be deemed to have been waived
ORDER III
RECOGNIZED AGENTS AND
PLEADERS
1.Appearances, etc., may
be in person by recognised agent or by pleader.- Any appearance,
application or act in or to any Court, required or authorized by law
to be made or done by a party in such Court, may, except where
otherwise expressly provided by any law for the time being in force,
be made or done by the party in person, or by his recognized agent,
or by a pleader {Subs.by Act 22 of 1926, s.2, for " duly appointed
to act ".} [appearing, applying or acting, as the case may be,] on
his behalf:
Provided that any such
appearance shall, if the Court so directs, be made by the party in
person.
Recognized agents.
2.Recognised agents.-
The recognized agents of parties by whom such appearances,
applications and acts may be mace 'or done are-
(a) persons holding
powers of-attorney, authorizing them to make and do such
'appearances, applications and acts or behalf of such parties;
(b) persons carrying on
trade or business for and` in the names of parties not resident
within the local limits of the jurisdiction of the Court within
which limits the appearance, application or act is made or done, in
matters connected with such trade or business only, where no other
agent is expressly authorized to make and do such appearances,
applications and acts.
3.Service of process on
recognised agent.- (1) Processes served on the recognized agent of a
party shall s be effectual as if the same had been served on the
party in person,, unless the Court otherwise directs.a
(2) The provisions for
the service of process on a party to a suit shall apply to the
service of process on his recognized agent.
.{Subs.by Act 22 of
1926, s.2, for the original rude 4.} 4.Appoinment of pleader.- (1)
No pleader shall act for any person in any Court, unless'' he has
been appointed for the purpose by such person by a document in
writing signed by such person or by his recognized agent or by some
other person duly authorized by or under a power-of-attorney to make
such appointment.
(2) Every such
appointment shall be filed in Court and shall be deemed to be in
force until determined with the leave of the Court by a writing
signed by the client or the pleader, as the case may be, and filed
in Court, or until the client or the pleader dies, or until all
proceedings in the suit are ended so far as regards the client.
(3) For the purposes of
sub-rule (2) an application for review of judgment, an application
under section 144 or section 152 of this Code, any appeal from any
decree or order in the suit and any application or act for the
purpose of obtaining copies of documents or return of documents
produced or filed in the suit or of obtaining refund of monies paid
into the Court in connection with the suit shall tee' deemed to be
proceedings in the suit.
(4) The High Court may,
by general order, direct that, where the person by whom a pleader is
appointed is unable to write his name, his mark upon the document
appointing the pleader shall be attested by such person and in such
manner as may be specified by the order.
(5) No pleader who has
been engaged for the purpose of pleading only shall plead on behalf
of any party, unless he has filed in Court a memorandum of
appearance signed by himself and stating-
(a) the names of the
parties to the suit,
(b) the name of the
party for whom he appears, and
(c) the name of the
person by whom he is authorized to appear:
Provided that nothing in
this sub-rule shall apply to any pleader engaged to plead on behalf
of any party by any other pleader who has been duly appointed to act
in Court on behalf of such party.]
(The First
Schedule.Order III.—Recognized agents and pleaders.Order
IV.—Institution of suits.Order V.—Issue and service of
summons.)
5.Service process on
pleader.- Any process served on the pleader of any party or left at
the office or ordinary residence of such pleader, and whether the
same is for the personal appearance of the party or not, shall be
presumed to be duly communicated and made known to the party whom
the pleader represents, and, unless the Court otherwise directs,
shall be as effectual for all purposes as if the same had been given
to or served on the party in person.
6.Agent to accept
service.- (1) Besides the recognized agents described in rule 2 any
person residing within the jurisdiction of the Court may be
appointed an agent to accept service of process.
Appointment to be in
writing and to be filed in Court.
(2) Such appointment may
be special or general and shall be made by an instrument in writing
signed by the principal, and such instrument or, if the appointment
is general, a certified copy thereof shall be filed in Court.
ORDER IV
INSTITUTION OF
SUITS
1.suit to be commenced
by plaint.- (1) Every suit shall be instituted by presenting a
plaint to the Court or such officer as it appoints in this
behalf.
(2) Every plaint shall
comply with the rules contained in orders VI and VII, so far as they
are applicable.
2.Register of suits.-
The Court shall cause the particulars of every suit to be entered in
a book to be kept for the purpose and called the register.of civil
suits.Such entries shall be numbered in every year according to the
order in which the plaints are admitted.
ORDER V
ISSUE AND SERVICE OF
SUMMONS
1.Issue of Summons.- (1)
When a suit has been duly instituted a summons may be issued to the
defendant to appear and answer the claim on a day to be therein
specified:
Provided that no such
summons shall be issued when the defendant has appeared at the
presentation of the plaint and admitted the plaintiff's claim.
(2) A defendant to whom
a summons has been issued under subrule (1) may appear--
(a) in person, or
(b) by a pleader duly
instructed and able to answer all material questions relating to the
suit, or
(c) by a pleader
accompanied by some person able to answer all such questions.
(3) Every such summons
shall be signed by the Judge or: such officer as he appoints, and
shall be sealed with the seal of the Court.
2.Copy of statement
annexed to summons.- Every summons shall be accompanied by a copy of
the paint or.if so permitted, by a concise statement.
3.Court may order
defendant or plaintiff to appear in person.- (1) Where the Court
sees reason to require the personal appearance of the defendant, the
summons shall order him to appear in person in Court on the day
therein specified.
2) Where the Court sees
reason to require the personal appearance of the plaintiff on the
same day, it shall make an order for such appearance.
4.No party to be appear
in person unless resident within certain limits.- No party shall be
ordered to appear in person unless he resides-
(a) within the local
limits of the Court's ordinary original jurisdiction, or
(b) without such limits
but at a place less than fifty or (where there is railway or steamer
communication or other established public conveyance for five-sixths
of the distance between the p]ace where he resides and the place
where the Court is situate) less than two hundred miles distance
from the court-house.
5.Summons to be either
to settle issues or for final disposal.- The Court shall determine,
at the time of issuing the summons whether it shall be for the
settlement of issues only, or for the final the disposal of the
suit; and the summons shall contain a direction accordingly:
Provided that, in every
suit heard by a Court of Small Causes.the summons shall be for the
final disposal of the suit.
6.Fixing day for
appearance of defendant.- The day for the appearance of the
defendant shall be fixed with reference to the current business of
the Court, the place of residence of the defendant and the time
necessary for the service of the summons; and the day shall be so
fixed as to allow the defendant sufficient time to enable him to
appear and answer on such day.
7.Summons to order
defendant to produce document relied on by him.- The summons to
appear and answer shall order the defendant to produce all documents
in his possession or power upon which he intends to rely in support
of his case.
8.On issue of summons
for final disposal, defendant to be directed to produce his
witnesses.- Where the summons is for the final disposal of the suit'
it shall also direct the defendant to produce, on the day fixed for
his appearance, all witnesses upon whose evidence he intends to rely
in support of his case.
Service of Summons
9.Delivery or
transmission of summons for service.- (1) Where the defendant
resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is
empowered to accept the service of the summons, the summons shall,
unless the Court otherwise directs, be delivered or sent to the
proper officer to be served by him or one of his subordinates.
(2) The proper officer
may be an officer of a Court other than that in which the suit is
instituted, and, where he is such an officer, the summons may be
sent to him by post or in such other manner as the Court may
direct.
10.Mode of service.-
Service of the summons shall be made by delivering or tendering a
copy thereof signed by the Judge or such officer as he appoints in
this behalf, and sealed with the seal of the Court.
11.Service on several
defendants.- Save as otherwise prescribed, where there are more
defendants than one, service of the summons shall be made on
each.defendant.
12.Service to be on
defendant in person when practicable, or on his agent.- Wherever it
is practicable service shall be made on the on defendant in person,
unless he has an agent empowered to accept service, in which case
service on such agent shall be sufficient.
13.Service on agent by
whom defendant carries on business.- (1) In a suit relating to any
business or work against a person who does not reside within the
local limits of the jurisdiction of the ant Court from which the
summons is issued, service on any manager or on agent, who, at the
time of service, personally carries on such business or work for
such person within such limits, shall be deemed good service.
(2) For the purpose of
this rule the master of a ship shall be deemed to be the agent of
the owner or charterer.
14.Service on agent in
charge in suits for immovable property.- Where in a suit to obtain
relief respecting or compensation for wrong to, immovable property,
service cannot be made on the defendant in person, and the defendant
has no agent empowered to accept the service, it may be made on any
agent of the defendant in charge of the property.
15.Where service may be
on male member of defendants family.- Where in any suit the
defendant cannot be found and has no agent empowered to accept
service of the summons on his behalf, service may be made on any
adult male member of the family of the defendant who is residing
with him.
Explanation.—A servant
is not a member of the family within the meaning of this rule.
16.Person served to sign
acknowledge.- Where the serving officer delivers or tenders a copy
of the summons to the defendant personally, or to an agent or other
person ~ on his behalf, he shall require the signature of the person
to whom r the copy is so delivered or tendered to an acknowledgment
of service endorsed on the original summons.
17.Procedure when
defendant refuses to accept services, or cannot be found.- Where the
defendant or his agent or such other person as aforesaid refuses to
sign the acknowledgment, or where the serving officer, after using
all due and reasonable diligence, cannot find the r' defendant' and
there is no agent empowered to accept service of the summons on his
behalf, nor any other person on whom service can be cc made, the
serving officer shall affix a copy of the summons on the outer door
or some other conspicuous part of the house in which the defendant
ordinarily resides or carries on business or personally works for
gain, and shall then return the original to the Court from which it
was issued, with a report endorsed thereon or annexed thereto
stating that he has so affixed the copy, the circumstances under
which be did so, and the name and address of the person (if any) by
whom the house was identified and in whose presence the copy was
affixed.
18.Endorsement of time
and manner of service.- The serving officer shall, in all cases in
which the summons has been served under rule 16, endorse or annex,
or cause to be =' endorsed or annexed, on or to the original
summons, a return stating the time when and the manner in which the
summons was served, and the name and addresses of the person (if
any) identifying the person served and witnessing the delivery or
tender of the summons.
19.Examination of
serving officer.- Where a summons is returned under rule 17, the
Court shall, if the return under that rule has not been verified by
the affidavit of the serving officer, and may, if it has been so
verified, examine the serving officer on oath, or cause him to be so
examined by another Court, touching his proceedings, and may make
such further inquiry in the matter as it thinks fit; and shall
either declare that the summons has been duly served or order such
service as it thinks fit.
20.Where service
substituted time for appearance to be fixed.- Effects of substituted
service Substituted service (1) Where the Court is satisfied that
there is reason to believe that the defendant is keeping out of the
way for the purpose of avoiding service, or that for any other
reason the summons cannot be served in the ordinary way, the Court
shall order the summons to be served by affixing a copy thereof in
some conspicuous place in the court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is
known to have last resided or carried on business or personally
worked for gain, or in such other manner as the Court thinks
fit.
(2) Service substituted
by order of the Court shall be as effectual as if it had been made
on the defendant personally.
(3) Where service is
substituted by order of the Court, -the Court shall fix such time
for the appearance of the defendant as the case may require.
21.Service within
presidency-towns of summons issued by Courts outside.- Service
summons where defendant resides within jurisdiction of another
Court.summons may be sent by the Court by which it is issued,
whether within or without the State, either by one of its officers
or by post to any Court (not being the High Court) having
jurisdiction in the place where the defendant resides.
22.Duty of Court to
Which summons is sent.- Where a summons issued by any Court
established beyond the limits of the towns of Calcutta, Madras
{Subs.by the A.0 1937 for " Bombay and Rangoon".} [and Bombay] is to
be served within any such limits, it shall be sent to the Court of
Small Causes within whose jurisdiction it is to be served.
23.Duty of Court to
Which summons is sent.- The Court to which a summons is sent under
rule 21 or rule 22 shall, upon receipt thereof, proceed as if it had
been issued by such Court and shall then return the summons to the
Court of issue, together with the record (if any) of its proceedings
with regard thereto.
24.Service on defendant
in prison.- Where the defendant is confined in a prison, the summons
shall be delivered or sent by post or otherwise to the officer in
charge of the prison for service on the defendant.
25.Service where
defendant resides out of India and has no agent- Where the defendant
resides out of {Subs.by Act 2 of 1951, s.3, for " the States ".}
[India] and has no agent in 1 [India] empowered to accept service,
the summons shall be addressed to the defendant at the place where
he is residing and sent to him by post, if there is postal
communication between such place and the place where the Court is
situate:
{Ins.by Act 19 of 1951,
s.2 [Provided that where any such defendant resides in Pakistan, the
summons, together with a copy thereof, may be sent for service on
the defendant, to any Court in that country (not being the High
Court) having jurisdiction in the place where the defendant
resides:
Provided further that
where any such defendant is a public officer in Pakistan (not
belonging to the Pakistan military, naval or air forces) or is a
servant of a railway company or local authority in that country, the
summons, together with a copy thereof, may be sent for service on
the defendant, to such officer or authority in that country as the
Central Government may, by notification in the Official Gazette,
specify in this behalf.]
26.Service in foreign
territory through Political Agent or Court.- Where-
(a) in the exercise of
any { Subs.by the A.O.1948 for " foreign jurisdiction vested in His
Majesty or in the Central Government { or the Crown Representative
".} [foreign {The words " or extra-provincial " rep.by the À.O.]
950.} jurisdiction vested in the Central Government], a Political
Agent has been appointed, or a Court has been established or
continued, with power to serve a summons issued by a Court under
this Code in any foreign territory in which the defendant resides,
or
.{Subs.by Act 17 of
1914, s.2 and Sch.I, for the original sub-rule (b).} [(b) {Subs.by
the A.O.]937 for " the G.G.in C.".} [the State Government] has, by
notification in the Official Gazette, declared, in respect of any
Court situate in any such territory and not established or continued
in the exercise of any such jurisdiction as aforesaid, that service
by such Court of any summons.{'Subs., ibid., for " issued by a Court
under this Code ".} [issued under this Code by a Court of the State]
shall be deemed to be valid service.]
the summons may be sent
to such Political Agent or Court, by post or otherwise, for the
purpose of being served upon the defendant; and.if the Political
Agent or Court returns the summons with an endorsement signed by
such Political Agent or by the Judge or other officer of the Court
that the summons has been served on the defendant in manner
hereinbefore directed, such endorsement shall be deemed to be
evidence of service.
27.Service civil public
officer or on servant of railway company or local authority.- Where
the defendant is a public officer (not belonging to.{ Subs.by the
A.O.1950 for "His Majesty's".} [the Indian] military, {.Subs.by Act
10 of 1927 s.2 and Sch.I, for "or naval".} [naval or air] forces ),
{The words "or His Majesty's Indian Marine Service" rent by Act 35
of 1934, s.2 and Sch.}or is the servant of a railway company or
local authority, the Court may, if it appears to it that the summons
may be most conveniently so served, send it for service on the
defendant to the head of the office in which he is employed,
together with a copy to be retained by the defendant.
28.Service on soldiers,
sailors or armen.- Where the defendant is a soldier, {Ins.by s.2 and
Sch., ibid.} [sailor] { Ins.by Act 10 of 1927, s.2 and Sch.I.} [or
airman!, the Court shall send the summons for service to his
commanding officer together with a copy to be retained by the
defendant.
29.Duty of person to
whom summons is delivered or sent for service.- (1) Where a summons
is delivered or sent to any person for service under rule 24, rule
27 or rule 28, such person shall be bound to serve it if possible,
and to return it under his signature, with the written
acknowledgment of the defendant, and such signature shall] be deemed
to be evidence of service.
(2) Where from any cause
service is impossible, the summons shall be returned to the Court
with a full statement of such cause and of the steps taken to
procure service, and such statement shall be deemed to be evidence
of non-service.
30.Substitutions of
letter for summons.- (1) The Court may, notwithstanding anything
hereinbefore contained, substitute for a summons a letter signed by
the Judge or such officer as he may appoint in this behalf where the
defendant is, in the opinion of the Court, of a rank entitling him
to such mark of consideration.
(2) A letter substituted
under sub-rule (1) shall contain all the particulars required to be
stated in a summons, and, subject to the provisions of sub-rule (3),
shall be treated in all respects as a summons.
(3) A letter so
substituted may be sent to the defendant by post or by a special
messenger selected by the Court, or in any other manner which the
Court thinks fit; and, where the defendant has an agent empowered to
accept service, the letter may be delivered or sent to such
agent.
ORDER VI
PLEADINGS GENERALLY
1.Pleading.- " Pleading
" shall mean plaint or written statement.
2.Pleading to state
material facts and not evidence.- Every pleading shall contain, and
contain only, a statement in a concise form of the material facts on
which the party pleading relies to, for his claim or defence, as the
case may be, but not the evidence by which they are to be proved,
and shall, when necessary, be divided into paragraphs, numbered
consecutively.Dates, sums and numbers shall be expressed in
figures.
3.Forms of Pleading.-
The forms in Appendix A when applicable, and where they are F.not
applicable forms of the like character, as nearly as may be, shall
be used for all pleadings.
4.Particulars to be
given where necessary.- In all cases in which the party pleading
relies on any misrepresentation, fraud, breach of trust, wilful
default, or undue influence, and in all other cases in which
particulars may be necessary beyond such as are exemplified in the
forms aforesaid, particulars (with dates and items if necessary)
shall be stated in the pleading.
5.Further and better
statement, or particulars.- A further and better statement of the
nature of the claim or defence, or further and better particulars of
any matter stated in any' pleading, may in all cases be ordered,
upon such terms, as to costs pa and otherwise, as may be just.
6.Condition Precedent.-
Any condition precedent, the performance or occurrence of which is
intended to be contested, shall be distinctly specified in his Pr
pleading by the plaintiff or defendant, as the case may be; and,
subject thereto, an averment of the performance or occurrence of all
conditions precedent necessary for the case of the plaintiff or
defendant shall be implied in his pleading.
7.Departure.- No
pleading shall, except by way of amendment, raise any new D ground
of claim or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading the same.
8.Denial of Contract
-Where a contract is alleged in any pleading, a bare denial of the
same by the opposite party shall be construed only as a denial in
fact of the express contract alleged or of the matters of fact from
which the same may be implied, and not as a denial of the legality
or sufficiency in law of such contract.
9.Effect of document to
be stated.- Wherever the contents of any document are material, it
shall be sufficient in any pleading to state the effect thereof as
briefly as possible, without setting out the whole or any part
thereof, unless the precise words of the document or any part
thereof are material.
10.Malice, knowledge.-
Wherever it is material to allege malice fraudulent intention,
knowledge or other condition of the mind of any person, it shall be
sufficient to allege the same as a fact without setting out the
circumstances from which the same is to be inferred.
11.Notice.- Wherever it
is material to allege notice to any person of any fact, matter or
thing, it shall be sufficient to allege such notice as a fact,
unless the form or the precise terms of such notice, or the
circumstances from which such notice is to be inferred, are
material.
12.Implied contract.-
Whenever any contract or any relation between any persons is to be
implied from a series of letters or conversations or otherwise from
a number of circumstances, it shall be sufficient to allege such
contract or relation as a fact, and to refer generally to such
letters, conversations or circumstances without setting them out in
detail.And if in such case the person so pleading desires to rely in
the alternative upon more contracts or relations than one as to be
implied from such circumstances, he may state the same in the
alternative.
13.Presumptions of law.-
Neither party need in any pleading allege any matter of fact which
the law presumes in his favour or as to which the burden of proof
lies upon the other side unless the same has first been specifically
denied (e.g., consideration for a bill of exchange where the
plaintiff sues only on the bill and not for the consideration as a
substantive ground of claim).
14.Pleading to be
signed.- Every pleading shall be signed by the party and his pleader
(if any): Provided that where a party pleading is, by reason of`
absence or for other good cause, unable sign the pleading, it may be
signed by any person duly authorized by him to sign the same or to
sue or defend on his behalf.
15.Verification of
Pleading.- (1) Save as otherwise provided by any law for the time
being v in force, every pleading shall be verified at the foot by
the party or "t by one of the parties pleading or by some other
person proved to the satisfaction of the Court to be acquainted with
the facts of the case.
(2) The person verifying
shall specify, by reference to the numbered paragraphs of the
pleading, what he verifies of his own knowledge and what he verifies
upon information received and believed to be true.
(3) The verification
shall be signed by the person making it and shall state the date on
which and the place at which it was signed.
16.Striking out
pleadings.- The Court may at any stage of the proceedings order to
be struck out or amended any matter in any pleading which may be
unnecessary or scandalous, or which may tend to prejudice, embarrass
or delay the fair trial of the suit.
17.Amendment of
pleadings.- The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on
such " terms as may be just, and all such amendments shall be made
as may be necessary for the purpose of determining the real
questions in controversy between the parties.
18.Failure to amend
after order.- If a party who has obtained an order for leave to
amend does not amend accordingly within the time limited for that
purpose by, the order, or if no time is thereby limited then within
fourteen days from the date of the order.he shall not be permitted
to amend after the expiration of such limited time as aforesaid or
of Such fourteen days, as the case may be, unless the time is
extended by the Court.
ORDER VII
PLAINT
1.Particulars to be
contained in plaint.- The plaint shall contain be following
particulars -
(a) the name of the
Court in which the suit is brought;
(b) the name,
description and place of residence of the plaintiff;
(c) the name.description
and place of residence of the defendant, so far as they can be
ascertained;
(d) where the plaintiff
or the defendant is a minor or a person of unsound mind.a statement
to that effect;
(e) the facts
constituting the cause of action and when it arose;
(f) the facts showing
that the Court has jurisdiction;
(g) the relief which the
plaintiff claims;
(h) where the plaintiff
has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; and
(i) a statement of the
value of the subject-matter of the suit for the purposes of
jurisdiction and of court-fees, so far as the case admits.
2.In money suits.- Where
the plaintiff seeks the recovery of money, the plaint shall state
the precise amount claimed.
But where the plaint
sues for mesne profits, or for an amount which will be found due to
him on taking unsettled accounts between him and the defendant, the
plaint shall state approximately the amount sued for.
3.Where the subject
matter of the suit is immovable property.-Where the subject-matter
of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case
such property can be identified by boundaries or numbers in a record
of settlement or survey, the plaint shall specify such boundaries or
numbers.
4.When plaintiff sues as
representative.- Where the plaintiff sues in a representative
character the plaint shall show not only that he has an actual
existing interest in the subject-matter, but that he has taken the
steps (if any) necessary to enable him to institute a suit
concerning it.
5.Defendants interest
and liability to be shown.- The plaint shall show that the defendant
is or claims to be interested in the subject-matter, and that he is
liable to be called upon to answer the plaintiff's demand.
6.Grounds of exemption
from limitation law.- Where the suit is instituted after the
expiration of the period prescribed by the law of limitation, the
plaint shall show the ground upon which exemption from such law is
claimed.
7.Relief to be
specifically stated.- Every plaint shall state specifically the
relief which the plaintiff claims either simply or in the
alternative, and it shall not be necessary to ask for general or
other relief which may always be given as the Court may think just
to the same extent as if it had been asked for.And the same rule
shall apply to any relief claimed by the defendant in his written
statement.
8.Relief founded on
separate grounds.- Where the plaintiff seeks relief in respect of
several distinct R claims or causes of action founded upon separate
and distinct grounds, f,' they shall be stated as far as may be
separately and distinctly.
9.Concise statements.-
(1) The plaintiff shall endorse on the plaint, or annex thereto, ~ a
list of the documents (if any) which he has produced along with it
;'p and, if the plaint is admitted, shall present as many copies on
plain paper of the plaint as there are defendants, unless the Court
by reason of the length of the plaint or the number of the
defendants, or for any other sufficient reason, permits him to
present a like number of concise statements of the nature of the
claim made, or of the relief c claimed in the suit, in which case he
shall present such statements.
(2) Where the plaintiff
sues, or the defendant or any of the defendants is sued, in a
representative capacity, such statements shall show in what capacity
the plaintiff or defendant sues or is sued.
(3) The plaintiff may,
by leave of the Court, amend such statements so as to make them
correspond with the plaint.
(4) The chief
ministerial officer of the Court shall sign such list and copies or
statements if' on examination, he finds them to be correct.
.{This rule has been
applied to suits for the recovery of rent under the Chota Nagpur
Tenancy Act, 1908 (Ben.6 of 1908), s.265.} 10.Return of plaint.- (1)
The plaint shall at any stage of the suit be returned to be
presented to the Court in which the suit should have been
instituted.
(2) Procedure on
returning plaint.- On returning a plaint the Judge shall endorse
thereon the date of its presentation and return, the name of the
party presenting it, and a brief statement of the reasons for
returning it.
11.Rejection of
plaint.-The plaint shall be rejected in the following cases:-
(a) where it does not
disclose a cause of action:
(b) where the relief
claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the
Court, fails to do so:
(c) where the relief
claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the
Court to supply the requisite stamp-paper within a time to be fixed
by the Court, fails to do so:
(d) where the suit
appears from the statement in the plaint to be barred by any
law.
12.Procedure on
rejection plaint.- Where a plaint is rejected the Judge shall record
an order to that effect with the reasons for such order.
13.Where rejection of
plaint does not preclude presentation of fresh plaint.- The
rejection of the plaint on any of the grounds hereinbefore mentioned
shall not of its own force preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action.
Documents relied on in
plaint
14.Production of
document on which plaintiff sues.- ( 1) Where a plaintiff sues upon
a document in his possession or power, he shall produce it in Court
when the plaint is presented, and shall at the same time deliver the
document or a copy thereof to be filed with the plaint.
(2) List of other
documents.- Where he relies on any other documents (whether in his
possession or power or not) as evidence in support of his claim, he
shall enter such documents in a list to be added or annexed to the
plaint.
15.Statement in case of
document not in plaintiffs possession or power.- Where any such
document is not in the possession or power of the plaintiff'.he
shall, if possible, state in whose possession or power it is.
16.Suits on lost
negotiable instruments.- Where the suit is founded upon a negotiable
instrument, and it, is proved that the instrument is lost, and an
indemnity is given by the plaintiff', to the satisfaction of' the
Court, against the claims of any other person upon such instrument,
the Court may pass such decree as it would have passed if the
plaintiff had produced the instrument in Court when the plaint was
presented, and had at the same time delivered a copy of' the
instrument to be filed with the plaint.
17.Production of
shop-book..- (1) Save in so far as is otherwise provided by the
Bankers Books Evidence Act, 18.91, where the document on which the
plaintiff sues is an entry in a shop-book or other account in his
possession or power, the plaintiff shall produce the book or account
at the time of fling the plaint, together with a copy of the entry
on which he relies.
(2) Original entry to be
marked and returned.- The Court, or such officer as it appoints in
this behalf, shall 'forthwith mark the document for the purpose of
identification; and, after examining and comparing the copy with the
original, shall, if it s found correct, certify it to be so and
return the book to the plaintiff and cause the copy to be
filed.
18.Inadmissibility of
document not produced when plaint filed.- (1) A document which ought
to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to
the plaint, and which is not produced c entered accordingly, shall
not, without the leave of the Court, b received in evidence on his
behalf at the hearing of the suit.
(2) Nothing in this rule
applies to documents produced for cross examination of the
defendant's witnesses, or in answer to any case se up by the
defendant or handed to a witness merely to refresh hi memory.
ORDER VIII
WRITTEN STATEMENT AND
SET-OFF
1.Writing statement- The
defendant may, and, if so required by the Court, shall, a or before
the first hearing or within such time as the Court may permit,
present a written statement of his defence.
2.New facts must be
specially pleaded.- The defendant must raise by his pleading all
matters which show the suit not to be maintainable, or that the
transaction is either void or voidable in point of law, and all such
grounds of defence as if not raised, would be likely to take the
opposite party by surprise, or would raise issues of fact not
arising out of the plaint, as, for instance fraud, limitation,
release, payment, performance, or facts showing illegality.
3.Denial to be
specific.- It shall not be sufficient for a defendant in his written
statement to deny generally the grounds alleged by the plaintiff,
but the defendant must deal specifically with each allegation of
fact of which he does not admit the truth, except damages.
4.Evasive denial.- Where
a defendant denies an allegation of fact in the plaint, he must not
do so evasively, but answer the point of substance.Thus, if it is
alleged that he received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he
must deny that he received that sum or any part thereof.or else set
out how much he received.And if an allegation is made with divers
circumstances, it shall not be sufficient to deny it along with
those circumstances.
5.Specific denial.-
Every allegation of fact in the plaint, if not denied specifically
or by necessary implication, or stated to be not admitted in the
pleading of the defendant, shall be taken to be admitted except as
against a person under disability:
Provided that the Court
may in its discretion require any fact so admitted to be proved
otherwise than by such admission.
6.Particular of set-off
to be given in written statement.- (1) Where in a suit for the
recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable
by him from the plaintiff, not exceeding the pecuniary limits of the
jurisdiction of the Court, and both parties if the same character as
they fill in the plaintiff's suit, the defendant may, at the first
hearing of the suit but not afterwards unless permitted by the
Court, present a written statement containing the particulars of the
debt sought to be set-off.
(2) Effect of set-off.-
The written statement shall have the same effect as a plaint in a
cross-suit so as to enable the Court to pronounce a final judgment
in respect both of the original claim and of the set-of: but this
shall not affect the lien, upon the amount decreed, of any pleader
in respect of the costs payable to him under the decree.
(3) The rules relating
to a written statement by a defendant apply to a written statement
in answer to a claim of set -off.
Illustrations
(a) A bequeaths Rs.2,000
to B and appoints C his executor and residuary legatee.B dies and D
takes out administration to B's effects.C pays Rs.1,000 as surety
for D; then D sues C for the legacy.C cannot set-off the debt of
Rs.1,000 against the legacy, for neither C nor D fills the same
character with respect to the legacy as they fill with respect to
the payment of the Rs.1,000.
(b) A dies intestate and
in debt to B.C takes out administration to A's effects and B buys
part of the effects from C In a suit for the purchase-money by C
against B, the latter cannot set-off the debt against the price, for
C fills two different characters, one as the vendor to B, in which
he sues B, and the other as representative to A.
(c) A sues B on a bill
of exchange.B alleges that A has wrongfully neglected to insure B's
goods and is liable to him in compensation which he claims to
set-off.The amount not being ascertained cannot be set-off.
(d) A sues B on a bill
of exchange for Rs.500.B holds a judgment against A for Rs.1,000.The
two claims being both definite, pecuniary demands may be
set-off.
(e) A sues B for
compensation on account of trespass.B holds a promissory note for
Rs.1,000 from A and claims to set-off that amount against any sum
that A may-recover in the suit.B may do so, for, as soon as A
recovers, both sums are definite pecuniary demands.
(f) A and B sue C for
Rs.1,000.C cannot set-off a debt due to him by A alone.
(g) A sues B and C for
Rs.1,000.B cannot set-off a debt due to him alone by A.
(h) A owes the
partnership firm of B and C Rs.1,000.B dies, leaving C surviving.A
sues C for a debt of Rs.1,500 due in his separate character.C may
set off the debt of Rs.1,000
7.Defence or set-off
founded upon separate grounds.- Where the defendant relies upon
several distinct grounds of defence or set-off founded upon separate
and distinct facts, they shall be stated, as far as may be,
separately and distinctly.
8.New ground of
defence.- Any ground of defence which has arisen after the
institution of the suit or the presentation of a written statement
claiming a set-off may be raised by the defendant or plaintiff!, as
the case may be, in his written statement.
9.Subsequent pleadings.-
No pleading subsequent to the written statement of a defendant.other
than by way of defence to a set-off shall be presented except) by
the leave of the Court and upon such terms as the Court thinks fit,
but the Court may at any time require a written statement or
additional written statement from any of the parties and fix a time
for presenting the same.
10.Procedure when party
fails to present written statement called for by Court.- Where any
party from whom a written statement is so required fails to present
the same within the time fixed by the Court, f the Court may
pronounce judgment against him, or make such order in relation to
the suit as it thinks fit.s
ORDER IX
APPEARANCE OF PARTIES
AND CONSEQUENCE OF NON-APPEARANCE
1.Parties to appear on
day fixed in summons for defendant to appears and answer.- On the
day fixed in the summons for the defendant to appear p 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.
2.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 D been served upon the defendant in consequence of the failure
of the s, plaintiff to pay the court-fee or postal charges (if any)
chargeable se for such service, the Court may make an order that the
suit be dismissed:
Provided that no such
order shall be made although the summons has not been served upon
the defendant, if on the day fixed for him to appear and answer he
attends in person or by agent when he is allowed to appear by
agent.
3.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.
4.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 be dismissal aside, and if he satisfies the Court that there
was sufficient cause for his not paying the court-fee and postal
charges (if any) required within the time fixed before the issue of
the summons, 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.
5.Dismissal of suit
where plaintiff, after summons returned unserved, fails for three
months to apply for fresh summons.- {Subs.by Act 24 of 1920, s.2,
for the original sub-rule (1).} [(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 three months
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.
6.Procedure when only
plaintiff appears.- (l) 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 proceed ex parse;
(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 summon 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 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.
7.Procedure where
defend-ant appears on day of adjourned hearing and assigns good
cause for previous non-appearance.-Where the court has adjourned the
hearing of the suit expert, 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 to costs
or otherwise, be heard in answer to the suit as if he had appeared
the day fixed for his appearance.
8.procedure where
defend-and only appears.- Where the defendant appears and the
plaintiff does not appear when the suit is called on for hearing,
the Court shall make an order that the suit be dismissed unless the
defendant admits the claim, or part thereof in which case the court
shall pass a decree against the defendant upon such admission, and
where part one of the claim has been admitted, shall dismiss there
suit so far as it relates to the remainder.
9.Decree against
plaintiff by defaults bars fresh suits.- (1) where a suit is wholly
or partly dismissed under rule 8, the plaintiff shall be precluded
form bringing a fresh suit in respect of the same cause action,.But
he may apply for an order to set the dismissal aside, and if he
satisfies the court that there was sufficient cause for his non
-appearance when the suit was called on for hearing, the court shall
make an order setting aside the dismissal upon such terms as to
costs or otherwise as it think is fit and shall appoint a day for
proceeding with the suit.
(2) No order shall be
made under this rule unless notice of the application has been
served on the opposite party.
10.Procedure in case of
non-attendance of one or more of several plaintiffs.- Where the are
more plaintiffs than one, and one or me of them appear and the
others do not appear, the court may at the instance of the plaintiff
or plaintiffs appearing permit the suit to proceed in the same way
as if all the plaintiffs had appealed, or make such order as it
thinks fit.
11.Procedure in case of
non-attendance of one or more of several defendants.- Where there
are more defendants than one, and one or more of them appear, and
the others do not appear, the suit shall proceed, and the Court
shall, at the time of pronouncing judgment, make such order as it
thinks fit with respect to the defendants who do not appear.
12.Consequence of not
attendance without sufficient cause shown of party ordered to appear
in person.-Where a plaintiff or defendant, who has been ordered to
appear in person, does not appear in person, or show sufficient
cause to the satisfaction of the Court for failing so to appear, he
shall be subject to all the provisions of the foregoing rules
applicable to plaintiffs and order defendants, respectively, who do
not appear.