INTRODUCTION
Summary suit or summary procedure is given in order XXXVII of the Code of Civil Procedure, 1908 (CPC). Summary Suit is the specific fast track procedure for enforcing a right in an effective manner as the courts pass judgements without hearing the defense. Usually, a case should be judicially determined by applying all the Principles of Natural Justice, yet the summary cases do not follow these principles and the cases are dispose-off in fast-track mode, hence this procedure is only applicable to limited subject matters where the defendant does not have a defence. Summary Suit is embedded in Order XXXVII of the Civil Procedure Code, 1908. This procedure came into existence to prevent unreasonable obstruction by the defendant who has no defence and to assist expeditious disposal of cases. Its object is to summarize the procedure of suits in case the defendant is not having any defense.
Applicability of the Order-Rule 1: 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.
WHAT IS THE NATURE OF SUMMARY SUITS?
A summary suit under order 37 of the CPC is a legal procedure used for enforcing a right that takes effect faster than ordinary suits as unlike in ordinary suits the courts do not hear the defense.
However, it does not violate the principles of Audi Alteram Partem, nobody should be condemned unheard as it is used only in certain limited cases (elaborated below under scope) where the defendant has no tenable defense, which is a complex question of law and fact and has been elaborately analyzed subsequently.
CLASSES OF SUITS WHERE SUMMARY PROCEDURE CAN BE APPLIED
According to Rule 1(2), Order XXXVII, CPC, 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.
PROCEDURE OF SUMMARY SUITS
Rules 2 and 3 provide the procedure of summary suits. Under rule 2 after the summons of the suit has been issued to the defendant, the defendant is not entitled to defend Summary suit unless he enters an appearance.
In default of this, the plaintiff will be entitled to an ex parte decree which is on a different footing to an ex parte decree passed in ordinary suits (the differences have been analyzed subsequently).
In the case that the defendant appears, the defendant must apply for leave to defend within ten days from the date of service of summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed to entitle him to defend.
The cases where leave to defend should and shouldn’t be granted have been analyzed subsequently-
Rule 2 requires an Order 37 Suit to contain among others, a specific averment that the Suit is filed under this Order and no relief which does not fall within the ambit of this Rule is claimed.
Under Order 37, there are two stages of getting the Suit decreed. One is at the stage of Rule 2(3) and the other is at the stage of Rule 2(6).
Rule 2(3) states the procedure for appearance of Defendant which is within 10 days from the service of the summons on him. After entering appearance, the Plaintiff serves on the Defendant summons for judgment within ten days from the date of service supported by an Affidavit; verifying the cause of action, amount claimed and that in his belief there is no defence to the suit.
Rule 2(6) states that in case the Defendant does not apply for a leave to defend, (a) the Plaintiff shall be entitled to judgment immediately or (b) the Court may direct the Defendant to give such security as it may deem fit. Sub-clause 7 states that in case sufficient cause is shown, the delay in entering an appearance or in applying for leave to defend the Suit may also be excused.
Rule 2(5) further states that the Defendant may within 10 days from service of such summons for judgment by Affidavit or otherwise disclose such facts as may be deemed sufficient to entitle him to defend, apply for leave to defend and it may be granted to him unconditionally or upon such terms as may appear to the Court to be just. Further, the proviso indicates that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed do not indicate a substantial defence or that the defence is frivolous or vexatious.
PROCEDURE FOR THE APPEARANCE OF DEFENDANT
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 annexure 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 notice on him.
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.
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 prepaid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.
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 fr6m 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.
The defendant may at any time within ten days from the service of such summons for It's affidavit or otherwise d 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.
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 of 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 the defendant in entering an appearance or in applying for leave to defend the suit.
CONCLUSION
A summary suit can be filed under Order 37 of CPC to speed up the amount due in a commercial dispute. The defendant is not granted a right to defend the suit unless it has entered the appearance with an affidavit stating substantial evidence to support it. For example, a summary suit is filed in a suit to recover the amount from dishonored bills of exchange, promissory notes, cheques, etc.
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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