Introduction:
Summary suit or summary procedure is provided under Order XXXVII of Code of Civil Procedure, 1908 (herein after referred as CPC, 1908) whose object is to summaries the procedure of suit in case the defendant is not having any defense.
Application & Scope
This order is applicable to –
- All the suits upon bills of exchange, hundies, and promissory notes.
- The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising either on a written contract or on an enactment where the sum sought to be recovered is fixed or on a guarantee where the claim against the principal is in respect of a debt.
A suit can be instituted under this order in High Court, City Civil Court, Court of Small Causes or any other Court notified by the High Court.
Proceedings
Once the suit is instituted, summon of the suit as per Rule 2(2) of CPC along with a copy of the Plaint and annexure will be sent to the Defendant.
The Defendant will not be defending the suit against him unless, he enters an appearance. In case of default in appearance, the allegations of the plaintiff in the Plaint will be deemed to be admitted and a decree in accordance to that will be issued by the Court.
Defendant’s Appearance
After summon is issued to the defendant, he has ten days to make an appearance. This appearance can either be in person or by a pleader. At anytime within the prescribed period of ten days, the defendant by way of an affidavit or otherwise, can disclose such facts sufficient enough to entitle him the right to defend.
Conditions for Leave to Defend
The Defendant right to defend and the conditions are:
- If the defendant satisfies the Court that he has a good defense to the claim on its merits.
- If the Defendant raises a triable issue indicating that he has a fair defense.
- If the defendant discloses such facts as may be deemed sufficient to entitle him to defend.
- There is a fair dispute to be tried as to the meaning of document on which the claim is based.
- Where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross examine plaintiff’s witnesses.
Passing of Decree:
In the case of summary proceeding, a decree will be passed in the following situations:
- In case the defendant defaults in its appearance then the allegations of the Plaintiff against the Defendant will be deemed to be true and a decree in the favor of Plaintiff will be issued. As per the decree the Plaintiff will be entitled to a sum which will not the exceed the sum mentioned in the summon, together with interest at the rate which will be specified in the decree, up to the date of decree and any other sum for cost.
- In case the Defendant is allowed to defend the case against the Plaintiff, the Court may direct him to give security within a specified time and in case the Defendant defaults in payment of security within the prescribed time, then the decree will be passed in the favor of the Plaintiff.
- In case the Defendant is granted the right to defend and also deposits the security within the reasonable time, the suit will follow the ordinary course and the Defendant will be asked to file a written statement under Order VIII.
Setting aside of Decree
The Court has the power to set aside the decree that has been passed under the provisions of Order XXXVII. This power has been enshrined on the Court by Rule 4 of Order XXXVII.