Civil Procedure Code, 1908 | Order 9
Order IX Rule 5 CPC: Dismissal When Fresh Summons Are Not Applied For
Order IX Rule 5 of the Code of Civil Procedure, 1908 deals with a plaintiff's failure to request fresh summons after the original summons to a defendant have been returned unserved. Under the central rule, the relevant period is seven days, not one month.
Text and meaning of Order IX Rule 5 CPC
Heading: Dismissal of suit where plaintiff after summons returned unserved, fails for seven days to apply for fresh summons.
Rule 5(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:
- he has failed after using his best endeavours to discover the residence of the defendant who has not been served; or
- such defendant is avoiding service of process; or
- there is any other sufficient cause for extending the time.
In those circumstances, the Court may extend the time for making the application for such period as it thinks fit.
Rule 5(2). In such case the plaintiff may, subject to the law of limitation, bring a fresh suit.
The provision above is presented in readable form, reflecting the central rule. Consult the authoritative statutory text and applicable local amendments for use in proceedings.
When does Rule 5 apply?
- A summons has been issued to a defendant and returned without service.
- The relevant return has been made to the court by the officer ordinarily certifying returns of service.
- The plaintiff has not applied for fresh summons within seven days of that return.
- The plaintiff has not satisfied the court, within the relevant period, of a ground for extending time.
Where several defendants are named, dismissal under this rule is directed against the defendant concerned; it does not automatically dispose of the entire suit against defendants who remain properly before the court.
Grounds for extension of time
1. Best efforts to locate the defendant
The plaintiff may explain the reasonable steps taken to ascertain the defendant's residence, and why service remains unsuccessful despite those efforts.
2. Avoidance of service by the defendant
Where the material shows that the defendant is deliberately evading service, the plaintiff can ask the court to extend time and consider appropriate lawful modes of service.
3. Other sufficient cause
The court may accept another adequate explanation for the delay. Supporting documents, process-server reports and a prompt application can assist the court in assessing the request. An extension is discretionary under the rule.
Practical steps after summons are returned unserved
- Check the court record and the date of the certified return.
- Examine the reason for non-service and verify the address or other service particulars.
- Apply for fresh summons within the seven-day period, complying with applicable process-fee and filing requirements.
- If the address cannot be traced, service is being evaded, or another sufficient cause exists, promptly seek an extension with supporting facts.
- Where legally justified, request an appropriate alternative mode of service under Order V, including substituted service only upon satisfaction of its statutory requirements.
Effect of dismissal and fresh suit
Under Rule 5(2), a plaintiff may bring a fresh suit after dismissal under Rule 5, but only subject to the law of limitation. The right to institute a fresh suit does not itself extend or restart the limitation period. A plaintiff should therefore examine the applicable limitation provision before choosing this course.
Order IX Rule 4 expressly deals with dismissals under Rules 2 and 3, not Rule 5. Consequently, its restoration mechanism should not be described as automatically available for a Rule 5 dismissal. The appropriate remedy depends on the actual order, governing procedural provisions, applicable amendments and judicial decisions.
Difference between Order IX Rules 2, 3 and 5
| Provision | Reason for dismissal | Principal consequence |
|---|---|---|
| Rule 2 | Failure to pay service charges or supply required plaint copies, resulting in non-service | Discretionary dismissal, subject to the rule's proviso |
| Rule 3 | Neither party appears when the suit is called for hearing | Court may dismiss the suit |
| Rule 5 | Failure to apply for fresh summons after an unserved return within the prescribed period, without a qualifying explanation | Dismissal against the relevant defendant; fresh suit subject to limitation |
Frequently asked questions
Is the time limit one month or seven days?
The central text of Order IX Rule 5(1) specifies seven days. The older one-month description in the page's historical filename is not the applicable central-rule period. Check any relevant local amendment.
Does the court have power to extend the seven-day period?
Yes. The rule permits an extension where the plaintiff satisfies the court of one of the stated grounds, including unsuccessful best efforts to locate the defendant, evasion of service, or another sufficient cause.
Can a new suit be filed after dismissal under Rule 5?
Yes, Rule 5(2) allows a fresh suit, subject to limitation and other applicable legal requirements.
Is the suit automatically dismissed against every defendant?
No. The rule provides for dismissal as against the particular defendant whose summons were returned unserved and in respect of whom the prescribed steps were not taken.
Official legal references
For the authoritative legislation and any amendments, consult the India Code official legislation portal (search for the Code of Civil Procedure, 1908, Act 5 of 1908), and the Legislative Department, Government of India. Related service provisions appear in Order V of the CPC.
Legal information for general educational use. Procedural requirements may vary with applicable amendments and the facts of the case.