PAPER ON

SUMMARY SUITS

Under the Guidance of: Asst. Prof. S. R. SUBRAMANIAN

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

CODE OF CIVIL PROCEDURE

SECOND SEMESTER

Prepared By:

MADHUR TULSIANI (17IP63018)

 SUMMARY PROCEEDINGS

The order provides for summary procedures in suits for Negotiable Instruments
or for recovery of debt or liquidated amount. The defendant in such suits does not have
the right to defend, but this right is subjected to the leave of the Court within the
prescribed period.
The provisions of such order are merely rules of procedure and in no way alter
either the jurisdiction or the nature of the suit. This concept was first developed in Mani
Mohan Mondal v. Ram Ratan Mondal, where the Division Bench of Calcutta High
Court opined that, “The body of the Code (i. e., the Civil Procedure Code), is
fundamental and is unalterable except by the Legislature; the rules are concerned with
details and machinery and can be more readily altered. Thus, it will be found that the
body of the Code creates jurisdiction while the rules indicate the mode in which it is to
be exercised. It follows that the body of the Code is expressed in more general terms,
but it has to be read in conjunction with the more particular provisions of the rules.”1
This point was further refined with regard to this order in Prayag Deb Ganguly v. Rama
Roy2, where the Court affirmed the stand after referring to the judgment of Wor Lee
Lone v. A. Rahman3, where the Division Bench held: “Order 37 lays down certain rules
of procedure which are applicable only to the Chief Court, and such rules of procedure
can only be applied after the plaint has been admitted. The rules do not in any way alter
the nature of the suit, nor the jurisdiction of the Court”.
Any order passed under summary proceeding i.e. Order 37, is a “case decided”
under section 115 of the Code of Civil Procedure, 1908 and therefore is revisable.
However, the High Court generally does not interfere with the discretion exercised by
the trial court.4 But High Court may interfere in appropriate cases, with an order passed
granting or refusing leave.5
The main objective behind the institution of summary procedure is to ensure an
expeditious hearing and speedy disposal of the suit. The Supreme Court in Rajni Kumar
v. Suresh Kumar Malhotra was of the opinion observed:

1
Mohan Mondal v. Ram Ratan Mondal AIR 1917 Cal 657.
2
Prayag Deb Ganguly v. Rama Roy AIR 1977 Cal 1.
3
Wor Lee Lone v. A. Rahman AIR 1918 Low Bur 135.
4
Mechelec Engineers & Manufacturers vs. Basic Equipment Corporation, (1976) 4 SCC 687.
5
India Thermal Power Ltd. vs. State of M.P. & Ors., (2000) 3 SCC 379.
 “It is important to note here that the power under Rule 4 of Order 37 is not confined to
setting aside the ex parte decree, it extends to staying or setting aside the execution and
giving leave to appear to the summons and to defend the suit. We may point out that as
the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the
suit filed thereunder, Rule 4 empowers the court to grant leave to the Defendant to
appear to summons and defend the suit if the court considers it reasonable so to do, on
such terms as the court thinks fit in addition to setting aside the decree. Where on an
application, more than one among the specified reliefs may be granted by the court, all
such reliefs must be claimed in one application. It is not permissible to claim such
reliefs in successive petitions as it would be contrary to the letter and spirit of the
provision. That is why where an application under Rule 4 of Order 37 is filed to set
aside a decree either because the Defendant did not appear in response to summons
and limitation expired, or having appeared, did not apply for leave to defend the suit in
the prescribed period, the court is empowered to grant leave to the Defendant to appear
to the summons and to defend the suit in the same application. It is, therefore, not
enough for the Defendant to show special circumstances which prevented him from
appearing or applying for leave to defend, he has also to show by affidavit or otherwise,
facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order
37 is different from Rule 13 of Order 9.”6
Summary suit is an attempt to balance the interests of trade & commercial
operations which requires immediate disposal of suits on one hand, while on the other
hand a care has to be taken that rights if a genuine defendant is not been taken away
unnecessarily. But it tilts in the favour of the party experiencing issues in transactions
and amount recovery in order to safeguard trading and commercial operations and also
to make sure that the defendant is not unnecessarily stretching the litigation thereby
preventing the plaintiff from entitlement towards a decree by raising untenable and
frivolous defences7.
The inherent power of the Court to allow leave to the defendant in order to
defend a matter at hand is based entirely upon the judicial wisdom. Hence, this power
to grant leave is discretionary in nature. However, in Santosh Kumar v. Bhai Mool
Singh, the Court was of the opinion that the discretionary power conferred upon the

6
Rajni Kumar v. Suresh Kumar Malhotra ( 2003 ) 5 SCC 315.
7
Santosh Kumar vs. Bhai Mool Singh, AIR1958SC321.
 Court by the virtue of Order 37 ought to be exercised judicially, judiciously and with
conformance to the well settled principles of natural justice. Wherever the defence has
raised a triable issue, the Court must grant leave unconditionally.8

a. Rule 01: Courts and classes of suits to which the order is to apply
1. This Order shall apply to the following Courts, namely: --
a. High Courts, City Civil Courts and Courts of Small Causes; and
b. other Courts:

Provided that in respect of the Courts referred to in clause (b), the High Court
may, by notification in the Official Gazette, restrict the operation of this Order
only to such categories of suits as it deems proper, and may also, from time to
time, as the circumstances of the case may require, by subsequent notification
in the Official Gazette, further restrict, enlarge or vary, the categories of suits
to be brought under the operation of this Order as it deems proper.

2. Subject to the provisions of sub-rule (1), the Order applies to the following classes
of suits, namely: --
a. suits upon bills of exchange, hundies and promissory notes;
b. suits in which 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 in the nature of 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.

This rule is a straightforward Application of Order XXXVII)

This rule provides for classification on the following basis:

1. On the basis of jurisdiction
i.e., the procedure shall be applicable to High Courts, City Civil Courts, Courts of
small causes other courts. The term “other courts” is further elaborated in the
proviso to the rule and it states that the High Court has the power to define such

8
(ibid).
 other courts along with their respective scope & extent of power by a notification
in the Official Gazette. The High Court can also restrict or enlarge the operations
of courts to such categories of suits as it deems proper.
2. On the basis of suits in which the plaintiff seeks only to recover a debt or some
liquidated demand in money payable by the defendant, with or without interest, and
arising either on a written contract, or on an enactment or on a guarantee. In case of
an enactment, the sum sought to be recovered is a fixed sum of money or in the
nature of a debt other than some profit. However, in case of a guarantee, the claim
is against the principal in respect of a debt or liquidated demand only.
3. On the basis of different classes of suits like bills of exchange, hundies and
promissory notes.

b. Rule 02: Institution of summary suits

1. A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder,
be instituted by presenting a plaint which shall contain, --
a. a specific averment to the effect that the suit is filed under this Order;
b. that no relief, which does not fall within the ambit of this rule, has been
claimed in the plaint; and
c. the following inscription, immediately Below the number of the suit in the
title of the suit, namely: --
"(Under Order XXXVII of the Code of Civil Procedure, 1908)".
2. The summons of the suit shall be in Form No. 4 in Appendix B or in such other
Form as may, from time to time, be prescribed.
3. The defendant shall not defend the suit referred to in sub-rule (1) unless he enters
an appearance and in default of his entering an appearance the allegations in the
plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree
for any sum, not exceeding the sum mentioned in the summons, together with
interest at the rate specified, if any, up to the date of the decree and such sum for
costs as may be determined by the High Court from time to time by rules made in
that behalf and such decree may be executed forthwith.
An important issue arises as to the determination of the suits which can be deemed as
triable. A suit can be considered as triable when
a. There is a fair dispute to be tried as to the meaning of document on which the claim
is based
 b. There is uncertainty to the amount actually due
c. The alleges facts are of such a nature so as to entitle the defendant to interrogate the
plaintiff
d. It is necessary for the defendant to cross examine the witnesses

c. Rule 03: Procedure for the appearance of defendant

1. In a suit to which this Order applies, the plaintiff shall, together with the summons
under rule 2, serve on the defendant a copy of the plaint and annexures thereto and
the defendant may, at any time within ten days of such service, enter an appearance
either in person or by pleader and, in either case, he shall file in Court an address
for service of notices on him.
2. Unless otherwise ordered, all summonses, notices and other judicial processes,
required to be served on the defendant, shall be deemed to have been duly served
on him if they are left at the address given by him for such service.
3. On the day of entering the appearance, notice of such appearance shall be given
by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the
plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed
to the address of the plaintiff’s pleader or of the plaintiff, as the case may be.
4. If the defendant enters an appearance, the plaintiff shall thereafter serve on the
defendant a summons for judgment in Form No. 4A in Appendix B or such other
Form as may be prescribed from time to time, returnable not less than ten days from
the date of service supported by an affidavit verifying the cause of action and the
amount claimed and stating that in his belief there is no defence to the suit.
5. The defendant may, at any time within ten days from the service of such summons
for judgment, by affidavit or otherwise disclosing such facts as may be deemed
sufficient to entitle him to defend, apply on such summons for leave to defend such
suit, and leave to defend may be granted to him unconditionally or upon such terms
as may appear to the Court or Judge to be just:
Provided that leave to defend shall not be refused unless the Court is satisfied that
the facts disclosed by the defendant do not indicate that he has a substantial defence
to raise or that the defence intended to be put up by the defendant is frivolous or
vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend the suit shall not be
 granted unless the amount so admitted to be due is deposited by the defendant in
Court.
6. At the hearing of such summons for judgment, --
a. if the defendant has not applied for leave to defend, or if such application
has been made and is refused, the plaintiff shall be entitled to judgment
forthwith; or
b. if the defendant is permitted to defend as to the whole or any part of the
claim, the Court or Judge may direct him to give such security and within
such time as may be fixed by the Court or Judge and that, on failure to give
such security within the time specified by the Court or Judge or to carry out
such other directions as may have been given by the Court or Judge, the
plaintiff shall be entitled to judgment forthwith.
7. The Court or Judge may, for sufficient cause shown by the defendant, excuse the
delay of the defendant in entering an appearance or in applying for leave to defend
the suit.
The Court tends to follow the underlying principles while granting a leave to the
defendant to defend the suit:
1. If the defendant is able to satisfy the Court that he has a good defence to the
claim on its merits, the plaintiff is not entitled to leave to sign judgment and the
defendant is entitled to unconditional leave to defend.
2. If the defendant raises a triable issue indicating that he has a fair or bona fide or
reasonable defence although not a positively good defence, the plaintiff is not
entitled to sign judgment and the defendant is entitled to unconditional leave to
defend.
3. If the defendant discloses such facts as they may be deemed to be sufficient to
entitle him to defend, even though the affidavit does not positively and
immediately make it clear that he has a defence yet, but instead, shows such a
state of facts that may lead the Court to infer that at the trial of the action, the
defendant may be able to establish a defence to the plaintiff’s claim, the Plaintiff
in such a case is not entitled to judgment, and the defendant is entitled to leave
to defend but, in such a case, the court may in its discretion impose conditions
as to the time or mode of trial but not as to payment into court or furnishing
security.
 4. If the defendant has no defence or the defence set up as such is illusory or sham
or practically moonshine, then in such cases the plaintiff is entitled to leave to
sign judgment and the defendant is not entitled to the leave to defend.
5. If the defendant has no defence or the defence is illusory or sham or practically
moonshine then though in the normal circumstances, the Plaintiff is entitled the
leave of the Court to sign the judgment, the Court may protect the Plaintiff be
allowing the defendant to proceed under such conditions as the Court may seem
reasonable, like the amount claimed in the suit has to be deposited into the Court
beforehand or is secured in any other manner subject to the satisfaction of the
Court, and then the Court might grant leave to the defendant to defend his suit
and prove his/her defence on certain conditions.

No appeal lies against an order granting or refusing leave to defend under rule 3.
However, an appeal can be made after a decree is passed.

d. Rule 04: Power to set aside decree

After decree the Court may, under special circumstances set aside the decree,
and if necessary stay or set aside execution, and may give leave to the defendant to
appear to the summons and to defend the suit, if it seems reasonable to the Court so to
do, and on such terms as the Court thinks fit.
Rule 4 expressly gives power to the Court to set aside any decree passed under
order 37. But, if the case does not come within the provisions of Rule 4, then there is
no scope to reside to section 151 in order to set aside such a decree. 9 However, where
an application is filed to set aside a decree either because the defendant did not appear
or having appeared did not apply for leave to defend the suit within the stipulated time
frame, the Court in such cases is conferred with the power entrusted by the virtue of
this rule so as to grant leave to the defendant provided the defendant seeking setting
aside of ex parte decree satisfies the Court that special circumstance were in existence
which prevented the defendant from appearing or applying for leave to defend with the
prescribed period.
The Court observed the expression "special circumstances" is not defined in the
Code of Civil Procedure nor is it capable of any precise definition by the court because

9
Ramkarandas Radhavallabh vs. Bhagwandas Dwarkadas AIR 1965 SC 1144.
 problems of human beings are so varied and complex. In its ordinary dictionary
meaning it connotes something exceptional in character, extraordinary, significant,
uncommon. It is an antonym of common, ordinary and general. It is neither practicable
nor advisable to enumerate such circumstances. Non-service of summons will
undoubtedly be a special circumstance. In an application under Order 37 Rule 4, the
court has to determine the question, on the facts of each case, as to whether
circumstances pleaded are so unusual or extraordinary as to justify putting the clock
back by setting aside the decree; to grant further relief in regard to post-decree matters,
namely, staying or setting aside the execution and also in regard to pre-decree matters
viz. To give leave to the Defendant to appear to the summons and to defend the suit. 10
It is evident that the instances of cases that may fall under “special circumstances” are
not enumerated and also that it is neither feasible nor practical to do so, but is left upon
the judicial wisdom to determine. The nature of the case, however, must be exceptional,
extraordinary, significant and uncommon.

e. Rule 05: Power to order bill, etc. to be deposited with officer of Court
In any proceeding under this Order the Court may order the bill, hundi or note on which
the suit is founded to be forthwith depositing with an officer of the Court, and may
further order that all proceedings shall be stayed until the plaintiff gives security for
the costs thereof.
The rule focuses upon the power of the Court to impose a stay on the proceedings. The
Court may prevent a decree that may be passed from being rendered infructuous.11

f. Rule 06: Recovery of cost of noting non-acceptance of dishonoured bill or note

The holder of every dishonoured bill or exchange or promissory note shall have the
same remedies for the recovery of the expenses incurred in noting the same for non-
acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under
this Order for the recovery of the amount of such bill or note.

g. Rule 07: Procedure in suits

10
(ibid).
11
Sardar Govindrao Mahadik and Anr. vs. Devi Sahai and Ors. AIR 1982 SC 989.
 Save as provided by this Order, the procedure in suits hereunder shall be the same as
the procedure in suits instituted in the ordinary manner.
Another set of terminologies that may require distinction is the basic difference
between the summary suits vis – a – vis an ordinary suit. The basic tenets of ordinary
suit entitle the defendant to defend his cause. Further, the decree so passed can be set
aside by the Court only upon judgment. In contrast, when dealing with a summary suit,
the right of the defendant to defend his/ her suit is upon judicial discretion and subject
to the grant of leave by the Court. A decree passed under a summary suit can only be
set aside under rule 4, Order 37 under “special circumstances”
Generally, a court while granting leave, must also record reasons for the same.
However, failure to record reasons for the same shall serve as no grounds to make the
order invalid12

12
Rajnit Prasad vs. Union of India (UOI) and Ors. (2000) 9 SCC 315.