Course Content
Institution of Suit?
In India, the institution of a suit refers to the formal process of initiating a legal action by filing a plaint in the appropriate court. It is the act of presenting the claim before the court and seeking a legal remedy. The plaintiff, through the plaint, sets out the facts, grounds, and reliefs sought in the case. The institution of a suit involves paying the requisite court fees, submitting the necessary documents, and complying with procedural requirements. Once the suit is properly instituted, the court acquires jurisdiction over the matter and the litigation process begins, leading to subsequent stages such as pleadings, discovery, trial, and judgment.
Summons in a civil case is a legal document issued by the court to notify a defendant of a lawsuit and instruct them to appear in court.
Appearance and Consequences Non-Appearance of Parties
Appearance and non-appearance of parties refers to their presence or absence in a legal proceeding. Parties may physically attend or be represented by legal counsel, signifying their active participation (appearance). Non-appearance occurs when parties are absent, which can have consequences such as dismissal or postponement of proceedings.
Civil Court Practice
About Lesson

Rules 2 to 5 of Order IX establish provisions for situations where the summons is not served to the defendant. One of the fundamental principles of procedural law is that every party must be afforded a fair opportunity to present their case.

Therefore, it is obligatory to provide a notice of the legal proceedings initiated against the defendant. Serving the summons to the defendant is a mandatory requirement and acts as a condition precedent.

If the summons is not served or if it does not allow the defendant sufficient time to effectively present their case, a decree cannot be passed against them, as established in the case of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also states that if the plaintiff fails to pay the costs for serving the summons to the defendant, the suit may be dismissed. However, if the defendant appears on the day of the hearing, either in person or through their legal representative, the dismissal cannot be granted solely based on the plaintiff’s failure to pay costs.

In such cases, the plaintiff is entitled to file a fresh suit. Furthermore, if the court is satisfied that there was a reasonable explanation for the failure to pay costs, it may set aside the dismissal order.

If the summons is returned unserved and the plaintiff does not apply for fresh summons within 7 days from the date of return, as indicated by the defendant or any of the defendants, the court can dismiss the suit against the defendant(s).

If it is not proven that the summons was duly served to the defendant, the court may direct the issuance of a fresh summons for service.

If the service of the summons is proven but the time provided in the summons is insufficient for the defendant to respond on the designated day, the court can postpone the hearing to a future date and provide notice to the defendant.

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