Summary Procedure – Order XXXVII of Code of Civil Procedure, 1908

Introduction

In recover suits under civil litigation, is it mostly believed to be time consuming but not if one knows about the intent of a Summary Suit of Code of Civil Procedure, 1908. A summary suit is a procedure where courts pass judgment without hearing the defense. The procedure of Summary suit is contradictory to the principle of Natural Justice (Audi Alteram Partem), but this proceeding is only applicable to limited matters where the defendant does not have a justification to defend him. Summary Suit is elucidated in Order XXXVII of the Code of Civil Procedure (CPC), 1908. The objective of this provision under CPC is to avoid unnecessary extending of the litigation process by the defendant in the class of cases where speedy judgments are desirable, which could help the complainants to save monetary expenses as well.

Applicability and Extent

The Provisions of Order XXXVII of CPC applies to the following class of courts:

  1. High Courts,
  2. City Civil Courts,
  3.  Courts of Small Causes
  4. Other Courts.

Order XXXVII applies to the following class of suits

  1. Suits pertaining to bills of exchange, hundies, and promissory notes
  2. Suits where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-

i) On a written contract, or

ii) On an enactment, where the sum sought to be recovered is a fixed sum of money or like a debt other than a penalty; or

iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.[1]

Jurisdiction of Summary suits

Suits can be proposed at the following places

a) Where the Defendant lives

b) Where the defendant works for personal gain

c) The place where cause of action arises wholly or partly

Based on the pecuniary jurisdiction, the suit can be proposed in the High Court or District Court.[2]

Time Limitation to initiate a Summary Suit

The suit can be proposed within 3 years from the date of cause of action. The period of limitation cannot be neglected.[3]

Contents of plaint for a summary procedure

Following are the contents of a plaint filed for a summary procedure:

  1. Facts pertaining to the cause of action; 
  2. A definite assertion that the suit is filed under this order;
  3. That all the relief or damages, falls within the boundary of this order
  4. The following inscription must be there under the number of the suit.[4]

The procedure under a Summary suit

a) A summary suit is initiated by presenting the plaint in the appropriate civil court.

b) After the filing of a summary suit, a copy of the plaint and summons must be sent to the defendant in the recommended format.

c) The defendant will present himself in person or by pleader within 10 days from the order of summons.

d) The plaintiff shall serve the defendant a summons for judgment, if he presents himself before the court

e) The defendant has to file an application for leave to defend within 10 days from the order of such summons.

f) Leave to defend may be acknowledged by the court unconditionally or with any conditions, which the court may think to be just and lawful.

g) If a defendant has not made an application for leave or such an application has been dismissed or if the defendant does not comply with the conditions based on which the leave was granted, the plaintiff is entitled to judgment forthwith.

When a leave to defend is granted?

The Hon’ble Court has discussed the circumstances under which a leave to defend is sanctioned in summary suits in the case of Kiranmoyee Dassi v. J. Chatterje[5]. These are the following circumstances:

a) When the defendant is able to prove substantial defense in the court

b) If the defendant has triable issues signifying a fair defense not necessarily a positive defense, the defendant is entitled to leave to defend.

c) If the defendant has triable issues and the judge is confused about the defendant’s bona fide intentions, even then the leave to defend is granted.

d)The trial judge may grant conditional leave to defend as to time or mode of trial or payment/security to the court when defendant raises an implausible issue

e) If the defendant has no substantial defense and raises no triable issues, then no leave to defend is granted.

f) Where the part of the amount claimed by the plaintiff is agreed to be paid by the defendant, leave to defend shall not be granted unless the amount is deposited by the defendant in the court.

Also in the case of Milkhiram (India) Private Ltd. vs. Chamanlal Bros[6] it was analyzed that the  discretion of the court to grant unconditional leave to defend might be questioned, when the defense is deceitful.

Decree in Summary Suits

The plaintiff is designated to a decree of a sum not surpassing the amount mentioned in the plaint including interest and cost under the following conditions-

a) If the defendant does not present himself before the court

b) If the defendant does not make an application for leave to defend

c) If the defendant has made an application for leave to defend but the same has been dismissed by the court.

d) If the leave to defend is acknowledged by the court but gradually the suit proceeds as an ordinary suit and the decree is granted based on CPC.[7]

Setting aside a decree in summary suits

Rule 4 of Order XXXVII explains the court having the power to set aside an exparte decree under special circumstances in a summary suit. The court is entrusted to grant a stay on the execution of such decree. The defendant in such a case should not only reveal the unique circumstances, which stopped him from appearing, but also the facts, which would gain him leave to defend.[8]

Conclusion

The summary procedure under order XXXVII is a legal procedure used for faster and more effective litigation for commercial matters. Its object is to summarize the suits in cases where a defendant is not equipped with any defense. However, there are special circumstances where the defendant is granted leave to defend. Nevertheless, for a leave to be granted there are several pre-requisites to be followed by the defendant. In case of the contrary, the leave to defend is rejected, and the plaintiff gets an edge in the case. Thus, a summary procedure is a productive solution to help prevent an unwanted prolonged lawsuit.


[1] Code of Civil Procedure, 1908, No.05, Acts of Parliament, 1908 (India).

[2] Anuja Waykar, How to Institute Summary Suit- Order 37, legalserviceindia.com, (Feb. 18, 2021, 2.58 PM), http://www.legalserviceindia.com/legal/article-4291-how-to-institute-a-summary-suit-order-37.html

[3] Id.

[4] Supra Note 1.

[5] Kiranmoyee Dassi v. J. Chatterjee, AIR 1949 CAL 479.

[6] Milkhiram (India) Private Ltd. vs. Chamanlal Bros, AIR 1965 SC 1698.

[7] Nawlendu Bhushan, ‘All you need to know about summary suit’, ipleaders, (Feb. 18, 2021, 5.04 PM), https://blog.ipleaders.in/summary-suits-when-and-why-can-they-be-filed/.

[8] Supra Note 1


Authored By: Sparsha Pai, 10th Semester, SDM Law College, Mangalore.

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