Summons is returned unserved with report "not found". What should plaintiff do?

The Immediate Obligation: Apply for Fresh Summons Within Seven Days

The moment the summons is returned unserved, the clock begins to tick. Order IX, Rule 5 commands that where a summons has been issued to the defendant and returned unserved, the plaintiff must apply for the issue of a fresh summons within seven days from the date on which the officer certifying the return makes his report to the court. This period was originally three months, then reduced to one month by the Amendment Act of 1976, and finally cut down to seven days by the Code of Civil Procedure Amendment Act, 1999 — a successive tightening that reflects the legislature's determination to eliminate delays at the very threshold of service.

If the plaintiff fails to apply within this period, the court shall make an order dismissing the suit against such defendant. The word "shall" is significant — it leaves the court no discretion in the matter of dismissal itself, though it does leave room for extension of time if the plaintiff satisfies the court of one of the grounds specified in the rule. However, it has been held by the Supreme Court that this period of seven days is directory and not mandatory in its strictest sense, meaning the court can exercise discretion in appropriate cases.

Grounds for Extension of Time

The plaintiff is not without recourse even if he cannot immediately secure fresh service. Rule 5 itself carves out three grounds on which a plaintiff may seek extension of time:

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

• That the defendant is deliberately avoiding service of process

• That there is any other sufficient cause for extending the time

These are not mere technical exceptions. They reflect a recognition that in a country as vast as India, defendants sometimes change residences, go underground, or genuinely cannot be located despite genuine effort. The plaintiff who has made honest attempts — documented in his application — is entitled to the benefit of extended time. But the court expects good faith; a plaintiff who simply sits on his hands and offers no explanation will find no sympathy.

What Happens at the Next Hearing: Order VI, Rule 6

On the day fixed for hearing, if the plaintiff appears but the defendant does not, Order IX, Rule 6 sets out the three situations the court must address. If the summons was not duly served, the court shall direct a second summons to be issued and served on the defendant — the obligation here is mandatory. If summons was served but without sufficient time to enable the defendant to appear, the court shall postpone the hearing and direct fresh notice. The court cannot simply proceed ex parte without first satisfying itself that service was proper.

The Escalation to Substituted Service

If fresh summons also comes back unserved, or if the plaintiff has reason to believe that the defendant is deliberately evading service, the appropriate remedy is to apply under Order V, Rule 20 for substituted service. This is the last resort — described aptly as "service in an artificial sense, proceeding upon a fiction imported by necessity." The court must be satisfied either that the defendant is keeping out of the way to avoid service, or that for any other reason the summons cannot be served in the ordinary way. Mere assertion by the plaintiff that the defendant is evading service is not enough — the court must form its own satisfaction based on the material placed before it.

Once the court orders substituted service, the summons is affixed in a conspicuous place in the court-house and upon some conspicuous part of the house where the defendant last resided or carried on business, or published in a newspaper, or served in such other manner as the court thinks fit. Substituted service so effected is as effectual as personal service upon the defendant.

The Consequence of Total Inaction

If the plaintiff does nothing — files no application for fresh summons, offers no explanation, and ignores the court — the suit stands dismissed under Order IX, Rule 5, sub-rule 2 of which makes clear that in such a case, the plaintiff may bring a fresh suit, subject of course to the law of limitation. The dismissal under Rule 5 is not a dismissal on merits and does not create a bar to a fresh suit, but by then the limitation clock will have been running, and the plaintiff may find himself in graver difficulty on that score.

The entire architecture of this provision is designed around a single principle: the plaintiff who instituted the suit bears the responsibility of ensuring the defendant is brought before the court. The court issues the summons, but it does not indefinitely wait for the plaintiff to take steps. The law expects diligence, and where diligence fails, the law provides the appropriate consequences.