Summary Suit is the specific fast track procedure for enforcing a right in an effective manner as the courts pass judgements without hearing the defence. 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.
Applicability of the Order-Rule 1
The provisions of Order 37 apply to:
- High Courts, City Civil Courts, Courts of Small Causes and other superior Courts. According to a proviso, the High Court may restrict the operation of this order only to such category of suits as it deems fit, through a notification in Official Gazette.
- The Order applies to suits upon bill of exchange, hundies and promissory notes.
- Suits in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant arising
- On a written contract
- On an enactment, where recovery is of a fixed sum of money or in nature of debt other than a penalty.
- On a guarantee where claim against principal is in respect of a debt.
- Suit for recovery of receivable instituted by any assignee of receivable.
Suits can be instituted in a court’s jurisdiction where:
- the defendant resides, or
- the defendant carries on business or personally works for gain or,
- the cause of action wholly or partly arises. Based on the value of the suit, pecuniary jurisdiction can be decided. Based on the pecuniary jurisdiction suit can be filed either in High Court or District Court.
A suit is instituted by presenting a plaint which shall contain:
- a specific averment to the effect that the suit is filed under this Order;
- that no relief has been claimed in the plaint which does not falls within the ambit of this Order
- 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).”
The summons of the suit shall be in Form No. 4 in Appendix B. The defendant shall not defend the suit 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, as mentioned in the summons, together with interest at the rate specified, up to the date of the decree and such sum for costs as may be determined by the High Court.
The suit can be filed within 3 years from the date of cause of action having arisen. The said period of limitation cannot be condoned.
Procedure for Appearance of Defendant
The plaintiff along with the summons under rule 2 shall serve a copy of the plaint and annexures to the defendant and the defendant may, 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, within ten days of such service.
On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff’s pleader.
At the hearing, if the defendant does not make any leave to defend or even if he had made the leave, it has been rejected by the Court, then the plaintiff is entitled to judgement. If the defendant makes any leave to defend his part (wholly or partially), the court may direct him to give such security within the specified time period to the court and on the failure of the same, the plaintiff shall be entitled to judgement.
Power to order bill etc to be deposited with officer of Court
The Court may order the bill, hundi or note 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.
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 by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note.
As according to Rule 7, the procedure in suits shall be the same as the procedure in suits instituted in the ordinary manner.
Sigma Legal Notes
The principle of Res Judicata is not applicable to summary suits, i.e. summary suits can be filed in the matters which are directly and substantially in issue in a previously instituted ordinary suit. No appeal lies against an order granting or refusing leave to defend under Rule However, an appeal lies where a decree is passed in a summary suit.
Order 37 enforces the process of appropriate mechanism and ensures that the defendant does not prolong the litigation process especially in commercial matters. Hence, Summary Suit is a resourceful solution that help to prevent unreasonable obstruction and is beneficial for commercial businesses.
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