Wednesday, 28 October 2015

When a plaint can be dismissed? What is the remedy of dismissal of a plaint?


Dismissed of a Plaint

According to Order IX Rule 1 of Code of Civil Procedure 1908 

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.


According to Order IX Rule 2 of Code of Civil Procedure 1908

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 or postal charges, if any, chargeable for such service, or failure to present copies of the plaint 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.


Remedy of dismissal of a plaint

According to Order IX Rule 4 of Code of Civil Procedure 1908 

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.

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