1. The plaintiff in a suit for realisation of Rs. 20,35,8497- is the petitioner. The plaintiff filed the suit on 17.10.2002 after paying one tenth of the court fee. The learned Additional Sub Judge before whom the suit was filed ordered summons to the defendant as provided under 0.5 R.9(1) of Code of Civil Procedure. On the next day the batta for issuing summons ordered under 0.5 R.9(1) of the Code of Civil Procedure was paid and the suit was posted for return of notice on 16.11.2002. On 16.11.2002 the learned Additional Subordinate Judge was on leave. The case was called before the court of the Principle Sub Judge. According to the petitioner then only his Advocate came to know that in addition to the service of summons ordered under 0.5 R.9(1) of the Code of Civil Procedure the learned Sub Judge had also ordered to issue summons to the defendants by registered post with acknowledgment due as provided under R.9(3) of 0.5 of the Code of Civil Procedure also and directed the plaintiff to pay batta within three days. The steps for issuing notice by Registered post with acknowledgment due was not taken within three days as ordered by the court. Since the plaintiff did not pay the batta till 16.11.2002 inspite of the direction the learned Sub Judge rejected the plaint under 0.7 R.11(f) of the Code of Civil Procedure. That order is under challenge in this Original Petition.

2. Since no summons was issued to the defendants either under R.9(1) or under R.9(3) of 0.5 of the Code of Civil Procedure, I have dispensed with the notice to the respondent in this Original Petition. The counsel for the petitioner is heard.

3. The facts of the case shows that the plaint was filed on 17.10.2002. The learned Sub Judge ordered summons through court as provided under 0.5 R.9(1) of the Code and the requisite batta for issuing summons to the defendant under R.9(1) was paid. In addition to that the learned Sub Judge ordered summons by registered post with acknowledgment due and directed the plaintiff to pay the necessary batta for the same within three days. That direction was not complied with. The question arising for consideration in this Original Petition is how far the learned Sub Judge was correct in rejecting the plaint under 0.7 R.11(f) of the Code on account of the failure to take steps to issue summons under 0.5 R.9(1) and 9(3) simultaneously.

4. The provisions for ordering service of summons is dealt with in S.27 to 29 and 0.5 of the Code of Civil Procedure. S.27 provides that where a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim within 30 days from the date of the institution of the suit. S.28 deals with the mode of service of summons where the defendant resides outside the State. S.28(1) provides that a summons may be sent for service in another State to such court and in such manner as may be prescribed by rules in force on that state. Sub-s. (2) of S.28 provides that upon receipt of the summons the court which receives the summons shall proceed to serve the same as if it has been issued by that court. Sub-s. (3) deals with the language of the summons. S.29 deals with service of foreign summonses. 0.5 R.9 to 30 deals with the service of summons. Before 1976 amendment R.9 of the parent Code contained two sub rules. In Kerala sub-r. (3) was framed by this Court which provided for service of summons through post under certain circumstances. The provision contained in sub-r. (3) of R.9 was repealed and in its place R.19 A was inserted by Act 104 of 1976. (see Mohan Traders v. A.V.M. Cattle and Poultry Feeds Manufacturing Industries (1979 KLT 866)). In this connection it is to be noted that in S.19A the wording contained is that "the court shall in addition to and simultaneously with the issue of summons for service in the manner provided in R.9 to 19 also direct the summons to be served by registered post." 0.5 underwent drastic changes with effect from 1.7.2002. S.15 of Act 4