Authored By – Dev Gupta
SUMMARY SUIT UNDER THE CIVIL PROCEDURE CODE
Table of Contents
India is among the top countries which have a high number of court cases pending in the world. The last recorded number was approximately 68, 000 in the Apex Court, and about 5 Crore cases around the country.
Facts such as these instil a sense of fear in the minds of its citizens that if one were to pursue their claim whenever they have been wronged, they will spiral down into lengthy legal proceedings and ultimately lose much more than what they originally lost. So people, more often than not, tend to drop their want of legal remedy altogether and move on with their life.
To somewhat remedy situations such as these, there has been a provision enacted in the Parent Act of Civil legislation, where a defendant who has no defence cannot cause unreasonable obstruction, which calls for a Summary Suit under certain circumstances.
THE ACT: ORDER XXXVII of the Civil Procedure Code deals with the institution, guidelines and awards (if awarded) that are to be followed in Summary Suits.
WHAT THE ORDER ENCOMPASSES :
Rule 1 of Order 37 – Courts and Classes of Suits to which the Order is to apply:
1 (1) that this order shall apply to the following courts, namely –
(a) High Courts, City Civil Courts and the Courts of Small Causes, and
(b) other courts.
As for the courts mentioned in clause (b), only the High Court has the power to, by notification in the Official Gazette, expand, vary, restrict the operation of this order only to such categories of suits as it deems fit and proper.
1(2) provides for the classes of suits to which the order applies –
(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 debt or liquidated damages.
Rule 2 of Order 37 – Institution of Summary Suits:
2(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
(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(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.
2(3) The defendant shall not defend the suit referred to in 1(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.
Rule 3 of Order 37 – Procedure for the appearance of the defendant
3(1) To any suit to which this Order applies, the plaintiff has to, alongwith the summons under rule 2, serve the defendant with a copy of the plaint and annexures thereto and then the defendant, after 10 days of such service, enter an appearance either in person or by pleader and in either case, he shall file in court an address where he shall receive the services.
3(2) If all the summonses, notices etc. are left at the address of the defendant given by him, they are to be considered as duly served.
3(3) When the defendant enters an appearance, he shall give a notice delivered at or sent by a pre- paid letter of the same to the plaintiff or the plaintiff’s pleader, at the address given by them.
3(4) IF the defendant enters an appearance, the plaintiff shall there-after serve on the defendant, a summons for judgment in Form 4-A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than 10 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.
3(5) Within 10 days from the service of such summons for judgment, the defendant may, by an 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 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.
3(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.
3(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.
Rule 4 of Order 37 – 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 de, and on such terms as the Court thinks fit.
Rule 5 of Order 37 – 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 deposited 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.
Rule 6 of Order 37 -Recovery of cost of noting non-acceptance of dishonoured bill or note
The holder of every dishonoured bill of 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.
Rule 7 of Order 37 – Procedure in suits
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.
