Dismissal of Suit: Reason & Remedy

Whenever a person files a lawsuit against a violation of any of his rights or for a public cause, the result could be – after hearing the case properly, the court passes an order or gives a decision on the merits of the case. The second possibility is that, especially when the case has no merit, the court dismisses the suit.

What is the Meaning of Dismissal of Suit?

The plaintiff has to institute a lawsuit in a court of law to claim his rights. Following the filing of the suit, he must exercise extreme caution in adhering to the procedural law applicable to the suit as outlined in the Code of Civil Procedure of 1908. If the plaintiff fails to take up the necessary process in time as provided, the proceedings in the suit may be declared terminated for the reason specified in the order. There are many grounds available to the courts for doing the same. 

Legal Provisions for the Dismissal of Suit

There are several provisions in the Code of Civil Procedure that allow a suit to be dismissed before it has completed all of the stages as per the procedure.

Dismissal of Suits

A civil suit can be dismissed under Rule 2 of Order 9 by the court if the plaintiff fails to take the appropriate steps to cause the service of the summons upon the defendant. The plaintiff's failure may be in paying the court fee or postal charges or in presenting as many copies of the plaint as required by Rule 9 of Order 7 of the Code of Civil Procedure. However, the proviso to this rule says that if the defendant attends court on that day so fixed either in person or by agent, the suit cannot be dismissed, despite an apparent failure on the part of the plaintiff in causing service of summons on the defendant.

Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the plaintiff's failure to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, 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, notwithstanding such failure, the defendant appears in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

A suit may also be dismissed by the court under the provisions of Rule 2 of Order 9 when the court finds that on the day of hearing, none of the parties appear before the court either to pursue the suit or to answer the claim.

A suit may also be dismissed by the court under the provisions of Rule 5 of Order 9 if the summons issued to the defendant was returned to the court as unserved to the defendant and the plaintiff did not apply for the issuance of a new summons within seven days of the date of return. However, if the plaintiff can satisfy the court on any of the following grounds, the court will not dismiss the suit −

• He has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or

• Such a defendant is avoiding service of process or

• There is any other sufficient cause for extending the time, in which case the Court may extend the time for making such an application for such a period as it thinks fit. 

Dismissal by Default

If the defendant appears but the plaintiff does not appear on the day set for hearing the suit, the court shall make an order dismissing the suit; however, if the defendant admits the claim or part of the claim, instead of dismissing the suit, the court shall pass a decree upon admission of the claim so admitted by the defendant. If the suit is dismissed under the provisions of Rule 8 of Order 9 of the Code of Civil Procedure of 1908, it is generally called a suit that has been dismissed in default.

Remedies for Dismissal

Following are some of the possible remedies −

Remedy for dismissal of suit under Rule 2 or Rule 3 of CPC

If the suit has been dismissed by the court either under the provisions of Rule 2 or Rule 3, the plaintiff has two options to pursue as provided under Rule 4 of Order 9 of the Code of Civil Procedure of 1908. He may either bring a fresh suit or he may apply for an order to set the dismissal aside. The court shall make an order setting aside dismissal upon being satisfied that there was sufficient cause for his nonappearance or for his failure to take steps.

Remedy for dismissal of suit under Rule 5(1) of CPC

Further, if the suit has been dismissed under Rule 5(1) of Order 9 of the Code of Civil Procedure, the remedy available to the plaintiff is to bring a fresh suit, subject to the law of limitation, i.e., if the limitation for filing the suit is available to him, the plaintiff is permitted to file a fresh suit.

Remedy for dismissal of suit under Rule 8

If the suit has been dismissed in default under Rule 8 of Order 9 of the Code of Civil Procedure, the remedy for the plaintiff is to apply for setting aside the dismissal under the provisions of Rule 9 of Order 9 of the Code of Civil Procedure. And if the court is satisfied that there was sufficient cause for nonappearance on that day when the suit was called for hearing, the court shall make an order to set aside the dismissal subject to cost or otherwise and shall fix a day for hearing on further proceedings in the suit.

It is worth noting here that if the suit has been decreed under Rule 8 of Order 9 due to the defendant's admission of the claim, the plaintiff is barred from bringing a new suit. 

Conclusion

It is clear from the provision that the plaintiff has to be very careful in pursuing his suit after its institution. He is required to appear in court on each and every date set for the hearing. Otherwise, the plaintiff has to suffer under the stringent provisions of Order 9 of the Code of Civil Procedure and thereby has to lose his rightful claim.

Frequently Asked Questions

Q1. What happens when the plaintiff fails to appear before the court on the day fixed for hearing the suit?

Ans: If the plaintiff fails to appear before the court on the date scheduled for hearing, his suit may be dismissed by the court.

Q2. What remedy is available to the plaintiff if his suit is dismissed in default?

Ans: If the suit has been dismissed in default, the plaintiff has a remedy to set aside the order of dismissal under the provisions of Rule 9 of Order 9 of the Code of Civil Procedure.

Q3. Under what section of the Code of Civil Procedure does the plaintiff file an application to vacate the order of default dismissal?

Ans: If the suit has been dismissed in default, the plaintiff has to file an application for setting aside the order of dismissal under the provisions of Rule 9 of Order 9 of the Code of Civil Procedure.

Q4. What happened when summons were not served in consequence of the plaintiff’s failure to pay costs or postal charges?

Ans: The suit of the plaintiff shall be dismissed if summons are not served in consequence of the plaintiff’s failure to pay cost or postal charges as per the provisions of Rule 2 of Order 9 of the Code of Civil Procedure