Order IX Rule 2 CPC: Dismissal of Suit When Summons Is Not Served Due to Plaintiff's Default
Order IX Rule 2 permits a civil court to dismiss a suit when the defendant has not been served with summons because the plaintiff failed to pay the required service charges or supply copies of the plaint. The rule also protects a suit from dismissal on this ground if the defendant appears as specified in its proviso.
Legal text reviewed: 12 October 2026
Order IX Rule 2 CPC: Statutory Provision
Heading: Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs.
Where on the day so fixed it is found that 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.
Source: India Code, Code of Civil Procedure, 1908 (official text, Order IX).
Meaning and Conditions for Dismissal
Order IX concerns the appearance of parties and the consequences of non-appearance. Rule 2 addresses a specific procedural default at the stage of serving summons on the defendant.
For this rule to apply, the court must find that summons was not served because of the plaintiff's failure to perform one or more of the following obligations:
- Payment of service court-fee: failure to pay any court-fee chargeable for serving summons.
- Payment of postal charges: failure to pay applicable postal charges for service.
- Supply of plaint copies: failure to present copies of the plaint required under Order VII Rule 9 CPC.
The words "may make an order" indicate that dismissal is discretionary, not automatic. The court must consider whether non-service resulted from the specified default and whether the statutory proviso applies. A summons remaining unserved for some unrelated reason does not by itself establish a ground under Rule 2.
Exception: Defendant Appears Despite Non-Service
The proviso expressly prevents dismissal under Rule 2 where, despite the plaintiff's failure, the defendant attends on the fixed day in person or through an agent where appearance by an agent is permitted. In that situation, the court cannot dismiss the suit on this particular ground.
What Happens After Dismissal? Order IX Rule 4
Order IX Rule 4 provides two possible courses where a suit has been dismissed under Rule 2 or Rule 3:
- Application to set aside dismissal: the plaintiff may apply to the court to restore the suit. If sufficient cause for the Rule 2 failure is established, the court shall set aside the dismissal and fix a date for proceeding with the suit.
- Fresh suit: the plaintiff may institute a fresh suit, subject to the applicable law of limitation and other legal requirements.
A restoration application should explain the default and support the explanation with relevant material, such as proof of payment, filing records or circumstances that prevented timely compliance. Limitation requirements for the chosen remedy must be checked separately.
Related CPC Rules and Their Differences
| Provision | Subject | Key distinction |
|---|---|---|
| Order VII Rule 9 | Procedure after admission of plaint | Includes requirements concerning copies and service steps. |
| Order IX Rule 2 | Non-service due to plaintiff's specified default | Court may dismiss, subject to the defendant-appearance proviso. |
| Order IX Rule 3 | Neither party appears | Concerns absence of both parties when the suit is called. |
| Order IX Rule 4 | Fresh suit or restoration | Applies to dismissal under Rule 2 or Rule 3. |
| Order IX Rule 5 | Failure to seek fresh summons after return unserved | Generally refers to seven days under the central text, subject to its exceptions and applicable amendments. |
For the complete wording and any applicable local amendments, consult the official CPC text on India Code and the relevant High Court rules.
Frequently Asked Questions
Is dismissal under Order IX Rule 2 CPC mandatory?
No. The rule uses "may", giving the court discretion, and expressly bars dismissal on this ground when the defendant appears in the manner described in the proviso.
Can a suit dismissed under Order IX Rule 2 be restored?
Yes. Under Order IX Rule 4, the plaintiff can apply to set aside the dismissal by showing sufficient cause for the failure.
Can the plaintiff file a fresh suit after dismissal under Rule 2?
Yes, Order IX Rule 4 permits a fresh suit, subject to limitation and other applicable requirements.
Does Rule 2 apply whenever summons is not served?
No. The non-service must result from the particular plaintiff defaults identified in the rule.
Legal note: This article explains the central CPC provisions for general information. State amendments, High Court rules and the facts of a particular case may affect the procedure.