Introduction

Summary suit or summary procedure is given in order XXXVII of the Code of

Civil Procedure, 1908. Summary procedure is a legal procedure used for
enforcing a right that takes effect faster and more efficiently than ordinary
methods. [1] Its object is to summarise the procedure of suits in case the defendant
is not having any defence.

A summary suit can be instituted in High Courts, City Civil Courts, Courts of
Small Causes and any other court notified by the High Court. High Courts can
restrict, enlarge or vary the categories of suits to be brought under this order. [2]

Classes of suits where summary procedure is applied

Summary suits can be instituted in case of certain specified documents such as a

bill of exchange, hundies, and promissory notes. Summary procedure is
applicable to recover a debt or liquidated demand in money arising on a written
contract, an enactment or on a guarantee.[3]

What is a bill of exchange?

A bill of exchange is a written unconditional order by one party (the drawer) to

another (the drawee) to pay a certain sum either immediately or on a fixed date
for payment of goods and/or services received. [4] If the sum is to be paid
immediately it is called a sight bill. Term bill is the bill of exchange where the
sum is to be paid on a fixed date.

Hundies

A Hundi is an unconditional order in writing made by a person directing another

to pay a certain sum of money to a person named in the order. It is a financial
instrument evolved on the Indian sub-continent and used for trade and credit
purposes.[5]
Promissory notes

A promissory note contains an unconditional promise to pay a certain sum to the

order of a specifically named person or to bearer—that is, to any individual
presenting the note. A promissory note can be either payable on demand or at a
specific time. [6]

Liquidated demand in money

Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is
distinguished from a claim of unliquidated damages, which is a subject of the
discretionary assessment by the court. [7]

Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit must be
among the following classes:-

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without

interest, arising:-

1. On a written contract, or
2. On an enactment (the recoverable sum should be fixed in money or it
should be in the nature of a debt other than a penalty), Or
3. On a guarantee (here the claim should be in respect of a debt or
liquidated demand only)

A summary suit is instituted by presenting a plaint in an appropriate civil court.

Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific
affirmation that the suit is filed under this order. It should also contain that no
such relief has been claimed which does not fall under the ambit of rule XXXVII
of the CPC. In the title of the suit, following inscription must be there under the
number of the suit:-

“(Under Order XXXVII of the Code of Civil Procedure, 1908)” [8]

Procedures after institution of Summary suit

Under summary procedures, the defendant has to get the leave to defend from the
court. A burden is placed upon the defendant to disclose the facts sufficient to
entitle him to defend in the application for leave to defend.

Detailed procedures
 After institution of a summary suit, the defendant is required to be
served with a copy of the plaint and summons in the prescribed form.
 Within 10 days of service of summons, the defendant has to enter an
appearance.
 If the defendant enters an appearance, the plaintiff shall serve on the
defendant a summons for judgment.
 Within 10 days of service of such summons, the defendant has to apply
for leave to defend the suit.
 Leave to defend may be granted to him unconditionally or upon such
terms as may appear to the Court or Judge to be just.
 If the defendant has not applied for leave to defend, or if such an
application has been made and refused, the plaintiff becomes entitled to
the judgment forthwith.
 If the conditions on which leave was granted are not complied with by
the defendant then also the plaintiff becomes entitled to judgment
forthwith.
  Sub-rule (7) of Order 37 provides that save as provided by that order
the procedure in summary suits shall be the same as the procedure in
suits instituted in an ordinary manner. [9]

Can a summary suit be tried after the institution of an ordinary suit on the
same cause of action?

According to section 10 of the CPC, a court cannot proceed with the trial of a suit
in which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties. It is called the principle of res
sub-judice.The provision contained in the section is mandatory and no discretion
is left with the court.[10]

However, the word trial, in this case, has not been used in its widest sense. The
concept of res sub-judice is not applicable to subsequently instituted summary
suits.

The Court or the Judge dealing with the summary suit can proceed up to the stage
of hearing the summons for judgment. Judgment can also be passed in favor of
the plaintiff if:-

(a) The defendant has not applied for leave to defend or if such application has
been made and refused, or,

(b) The defendant who is permitted to defend fails to comply with the conditions
on which leave to defend is granted. [11]

When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of leave
to defend in summary suits:

(a) If the defendant satisfies the court that he has a substantial defence, the
defendant is entitled to an unconditional leave of appeal.
(b) If the defendant raises triable issues indicating that he has a fair or reasonable
defence, although not a positively good defence, the defendant is ordinarily
entitled to unconditional leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial judge
about the defendant’s good faith, conditional leave to defend is granted.

(d) If the defendant raises a defence which is plausible but improbable, the trial
judge may grant conditional leave to defend with conditions as to time or mode
of trial, as well as payment into court, or furnishing security.

(e) If the defendant has no substantial defence and raises no genuine triable issue,
then no leave to defend is granted.

(f) Where part of the amount claimed by the plaintiff is admitted by the defendant
to be due from him, leave to defend shall not be granted unless the amount so
admitted to be due is deposited by the defendant in Court.[12]

Decree in summary suits

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in
plaint, together with interest and cost in following conditions:-

1. If the defendant does not enter an appearance (ex parte decree)

2. If the defendant has not applied for leave to defend
3. If the defendant has applied for leave to defend but it is refused
4. If the leave to defend is granted then the suit proceeds as an ordinary
suit and decree is granted as per the CPC.[13]

Setting aside decree in summary suits

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree. The
defendant has to satisfy the court that the summons was not duly served or he was
prevented by any sufficient cause from appearing in the hearing.
Rule 7 of Order 37 says that except as provided in the order, the procedure in
suits under Order 37 shall be the same as the procedure in suits instituted in an
ordinary manner. Rule 4 of Order 37 specifically provides for setting aside the
decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed
under Order 37.

Under rule 4 of order XXXVII, the court has the power to set aside the ex
parte decree passed in summary suit. The court is empowered to stay the
execution of such a decree. Under this rule, an application is made 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. To set aside ex parte decree, the defendant has not only to show special
circumstances which prevented him from appearing but also facts which would
entitle him to leave to defend.[14]

Difference between sufficient cause and special circumstances

For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy
the court with sufficient cause for his non-appearance. In summary suits, the ex
parte decree may be set aside if the defendant shows special circumstances.

The reasons offered by the defendant to explain the special circumstances should
be such that he had no possibility of appearing before the Court on a relevant day.
For instance, there was a strike and all the buses were withdrawn and there was
no other mode of transport. This may constitute “special circumstances”. But if
he were to plead that he missed the bus he wanted to board and consequently he
could not appear before the Court. It may constitute a ‘sufficient cause’, but not
a ‘special circumstance’.

Thus a ‘special circumstance’ would take with it a ’cause’ or ‘reason’, which

prevents a person in such a way that it is almost impossible for him to attend the
Court or to perform certain acts which he is required to do. Thus the ‘reason’ or
’cause’ found in “special circumstances” is more strict or more stringent than in
“sufficient cause”. What would constitute ‘special circumstances’, would depend
upon the facts of each case. Special circumstances (for the purpose of setting aside
the ex parte decree) may constitute a ‘sufficient cause’, but not vice versa. [15]
 How summary suits are different from ordinary suits

The table given below demonstrates the difference between a summary suit and
an ordinary suit:-

Summary suits Ordinary suits

Only for suits related to bill of

exchange, hundies, promissory
Matter For any matter of civil nature.
notes and contracts, enactments,
guarantees of specified nature.

Not applicable if a summary suit Applicable. One cannot file

Applicability can be filed on the matter directly another suit on the matter directly
of res sub-judice and substantially in issue in a and substantially in issue in a
previous ordinary suit. previous suit.

The right of the The defendant will get a chance The defendant has a right to
defendant to to defend only if leave to defend defend the averments made in the
defend is granted. suit.

In case of non-appearance of the

Multiple summonses are served
Ease of getting defendant or refusal of leave to
to the defendant when ex parte
decree defend, the plaintiff is entitled to
decree is passed.
decree forthwith.

More strict and stringent. Special

Setting aside ex Sufficient cause for non-
circumstances for non-
parte decree appearance needs to be shown.
appearance has to be shown.

Why summary suits

The summary procedure prevents unreasonable obstructions by the defendant

who has no defence. It assists expeditious disposal of cases. Unless the defendant
is able to demonstrate that he has a substantial defence in his case, the plaintiff is
entitled to a judgment forthwith. In the event of ex parte decree in summary suit,
the defendant is required to show more strict and stringent causes. This ensures
that ex parte decree is not set aside in an ordinary manner.

The summary procedure is generally resorted to in a class of cases where speedy

decisions are desirable in the interest of commercial transactions. Summary suits
are easier to establish for the plaintiff and tougher for the defendant to defend
than ordinary suits. By and large, the summary procedure ensures that the
defendant does not prolong the litigation and prevent the plaintiff from obtaining
a decree by raising untenable and frivolous defences. [16]