FACULTY OF LAW

JAMIA MILLIA ISLAMIA

THE CONCEPT OF SUMMARY PROCEDURE – A

CRITICAL ANALYSIS

SUBMITTED BY: RUPAL GUPTA

SUBMITTED TO: PROF. SUKESH MISHRA

SUBJECT: CIVIL PROCEDURE CODE - II

COURSE: B.A. LL.B. (HONS.)

BATCH: SEMESTER VIII, REGULAR

ROLL NO: 51
 ACKNOWLEDGEMENT

Exchange of ideas generates new objects to work in a better way. Whenever a person is helped
and co-operated by others, his heart is bound to pay gratitude and obligation to them. I would
like to thank my C.P.C. Lecturer, Prof. Sukesh Mishra Sir for providing me with invaluable
support and guidance which led to the completion and conception of this project titled “The
Concept of Summary Procedure – A Critical Analysis”.

Rupal Gupta
VIII Semester (Regular)

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 TABLE OF CONTENTS

List Of Cases .............................................................................................................................. 4

Introduction ................................................................................................................................ 5

What is A Summary Suit?.......................................................................................................... 5

Importance of Summary Suits ................................................................................................... 6

Provision For Summary Suit...................................................................................................... 6

Kinds of Suits......................................................................................................................... 7

Discretion of Court ................................................................................................................ 8

Institution Of Summary Suits .................................................................................................... 8

Judiciary And Order XXXVII ................................................................................................. 10

Granting Leave To Defendant ................................................................................................. 12

Difference Between Summary Suits And Original Suits ......................................................... 13

Conclusion ............................................................................................................................... 14

References ................................................................................................................................ 15

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 LIST OF CASES

• IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568.

• India Thermal Power Ltd. vs. State of M.P. & Ors., (2000) 3 SCC 379.

• Kamlesh Kohli v. Escotrac Finance & Investment Ltd., (2000) 1 SCC 324.

• Karumili Bharathi v. Prichikala Venkatchalam, 1999 (3) ALD 366.

• Kiranmoyee Dassi v. J. Chatterjee, AIR 1949 Cal 479

• Mahmudar v. Saratchandra, (1900) 5 CWN 259.

• Mani Mohan Mondal v. Ram Ratan Mondal, AIR 1917 Cal 657.

• Mechelec Engineers & Manufacturers vs. Basic Equipment Corporation, (1976) 4 SCC

687

• Milkhiram India Pvt. Ltd. v. Chamanlal Bros., AIR 1965 SC 1698.

• Murahari Rao v. Bapayya, AIR 1949 Mad 742.

• Prayag Deb Ganguly v. Rama Roy, AIR 1977 Cal 1.

• Rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315.

• Santosh Kumar v. Bhai Mool Singh, AIR 1958 SC 321

• TVC Skyshop Ltd. v. Arun Kumar Mansingka, 2000 AIR SCW 4933

• Vijaya Home Loans Ltd. V. Crown Traders Ltd., AIR 1998 Del 183.

• Wor Lee Lone v. A. Rahman, AIR 1918 Low Bur 135.

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 INTRODUCTION

Proceedings can be lengthy as well as hectic. This might sometimes demotivate a victim from
pursuing justice as such lengthy procedure could lead to further harassment of the said victim.
The Civil Procedure Code provides a relief to such victims via the provision of summary suits.
It allows a person to file for a summary suit in cases where the defendant has no defence prima
facie and thus the suit is almost transparent. However, such suit can be filed only in certain
circumstances.

This paper aims at explaining the concept of summary suits. It also sheds light upon the various
circumstances where such a suit can be filed and entertained. This project begins by explaining
the concept of summary suit and proceeds further by analysis the usage and importance of the
same. It studies the provisions contained within the Civil Procedure Code with regard to it and
explains them with reference to the judicial perspectives of them as developed over time. The
project also involves an in-depth comparison between the summary suits and ordinary suits.

WHAT IS A SUMMARY PROCEDURE/SUIT?

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. Summary Proceedings have been defined in the
Black’s Law Dictionary as: “A nonjury proceeding that settles a controversy or disposes of a
case in a relatively prompt and simple manner.”1 Merriam Webster defines it as “a civil or
criminal proceeding conducted without formalities (such as pleadings) for the speedy
disposition of a matter.”2

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.3

1
Henry Campbell Black, Black’s Law Dictionary 3809 (Thomson West, 8th ed., 2004).
2
Summary Proceedings | Definition by Merriam-Webster, available at: https://www.merriam-
webster.com/dictionary/summary%20proceeding (last visited on 02-05-2021).
3
Rule 1(1), Order XXXVII, Code of Civil Procedure, 1908.

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 IMPORTANCE OF SUMMARY PROCEDURE

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.

PROVISION FOR SUMMARY SUIT

Rule 1 of the Order XXXVII of the Code reads as follows:

1. “Courts and classes of suits to which the Order is to apply

(1) This Order shall apply to the following Court, namely:
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) other Courts;

Provided that in respect of the Courts referred to in clause (b), the High Court may,
by notification in the Official Gazette, restrict the operation of this Order only to
such categories of suits as it deems proper, and may also, from time to time, as the
circumstances of the case may require, by subsequent notification in the Official
Gazette, further restrict, enlarge or vary, the categories of suits to be brought under
the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1) the Order applies to the following classes
of suits, namely:
(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

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 (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 a
debt or liquidated demand only.”

The scope of the rule has been amended by the amendment of 1976. Adopting the Bombay
Amendment, summary procedure has been made applicable to all courts.

The Code of Civil Procedure, 1908 provides for a summary procedure in respect of certain
suits. Provisions relating to summary procedure are found in O. 37, Rules 1 to 7 of the Code.
A Summary suit is intended to facilitate the speedy disposal of cases. The object that underlies
the summary procedure is to guard against delaying tactics that are indulged in by a defendant,
who may have no genuine defence. In short, the essence of summary suits is that the defendant
is not, as in an ordinary suit, automatically endowed with the right to defend a suit. The right
to exercise his defence will be granted to the defendant only if the court is convinced as to the
authenticity of his claims. The summary procedure is a powerful weapon in the hands of a court
to discourage frivolous defences.

The important feature of summary suit, is that, here the Defendant is not allowed to defend the
suit, unless he takes the permission from court. Defendant is allowed to defend himself only if
according to the affidavit filed by him, it is must for the plaintiff to prove charges against him.

If by affidavit by Defendant, it appears that he has no defense, then court will decline him the
permission and pass necessary orders in favor of plaintiff.

Kinds of Suits
On breaking down Rule 1 it can be clarified that only the following suits can be heard under
summary procedure

1. Suits upon bills of Exchanges, hundies or promissory notes;

2. Any suit filed by the plaintiff for recovery of a debt / money payable by the defendant
according to a written contract, or
3. In case of an enactment wherein the amount to be recovered is a fixed amount of money,
or a debt other than a penalty, or A guarantee, where the claim against the principal is in
respect of a debt or for money only.

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The object behind provision of summary procedure was to ensure a speedy trial for recovery
of money in cases where the defendant has no defence and thus any unreasonable delay sought
to be caused is eliminated.

Discretion of Court
As per Order XXXVII, the respective court has the discretion to entertain such summary suits.
The discretionary power conferred upon the court under Order XXXVII should be exercised
judicially. Judiciously and on well-settled principles of natural justice. Wherever defence raises
a “triable issue”, leave should be granted unconditionally. If it is not done, leave may become
illusory.4

Care should be taken to see that the object of the rule to assist the expeditious disposal of
commercial causes should not be defeated. But it also must be ensured that real and genuine
triable issues are not shut out by unduly severe orders as to deposit.5

INSTITUTION OF SUMMARY SUITS

Order XXXVII rule 2 deals with the institution of summary suits.

(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 Order;
b. that no relief, which does not fall within the ambit of this rule, has been claimed
in the plaint;
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, 1907).”
(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.
(3) The defendant shall not defend the suit referred to in sub-rule (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 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

4
Santosh Kumar v. Bhai Mool Singh, AIR 1958 SC 321; Milkhiram India Pvt. Ltd. v. Chamanlal Bros., AIR 1965
SC 1698.
5
Kamlesh Kohli v. Escotrac Finance & Investment Ltd., (2000) 1 SCC 324.

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 determined by the High Court from time to time by rules made in that behalf and such
decree may be executed forthwith.”

This rule provides that after the summons of the suit has been issued to the defendant, the
defendant must appear and the plaintiff will serve a summons for judgment on the defendant.
The defendant is not entitled to defend a summary suit unless he enters an appearance. In
default of this, the plaintiff will be entitled to a decree which will be executed forthwith.

• Failure to Enter Appearance: As provided by sub-rule (3), in a summary suit, if the

defendant fails to enter appearance, the court can pass a decree on the basis that allegations
in the plaint are deemed to have been admitted.6
• Form of summons in a Summary Suit: The summons in a summary suit requires the
defendant to obtain leave from the court within ten days from the service thereof to appear
and defend the suit and within such time to cause an appearance to be entered on his behalf.
• Limitation for Application for Leave to Defend: The period for an application for leave
to appear and defend is ten days from the date when the summons is served. The court has
no power to extend the time,7 unless the court has, by a rule framed in that behalf, made
S. 5 of the Limitation Act applicable to such applications as done by the High Court of
Bombay. It has been held in some decisions of Madras High Court that a court could
entertain, for sufficient cause, an application presented beyond ten days, as a power to
excuse delay should be implied from the power to set aside an ex parte decree for sufficient
cause, under Rule 4.8 But most of the authorities hold the view that there is no power in
the court to excuse delay, as Section 5 of the Limitation Act is inapplicable.
• Obtaining Leave is Must: Before the amendment of 1976, this rule provided that a
defendant who has failed to obtain a leave to defend cannot be allowed to appear while the
hearing is proceeding. But the scheme after the amendment is different. The defendant
must enter an appearance and thereafter he has to seek leave to defend.

6
Vijaya Home Loans Ltd. V. Crown Traders Ltd., AIR 1998 Del 183.
7
Mahmudar v. Saratchandra, (1900) 5 CWN 259.
8
Murahari Rao v. Bapayya, AIR 1949 Mad 742.

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 JUDICIARY AND ORDER XXXVII

The order provides for summary procedures in suits for Negotiable Instruments or for recovery
of debt or liquidated amount. The defendant in such suits does not have the right to defend, but
this right is subjected to the leave of the Court within the prescribed period.

The provisions of such order are merely rules of procedure and in no way alter either the
jurisdiction or the nature of the suit. This concept was first developed in Mani Mohan Mondal
v. Ram Ratan Mondal9, where the Division Bench of Calcutta High Court opined:

“The body of the Code (i. e., the Civil Procedure Code), is fundamental and is unalterable
except by the Legislature; the rules are concerned with details and machinery and can be
more readily altered. Thus, it will be found that the body of the Code creates jurisdiction
while the rules indicate the mode in which it is to be exercised. It follows that the body of
the Code is expressed in more general terms, but it has to be read in conjunction with the
more particular provisions of the rules.”

This point was further refined with regard to this order in Prayag Deb Ganguly v. Rama Roy,10
where the Court affirmed the stand after referring to the judgment of Wor Lee Lone v. A.
Rahman,11 where the Division Bench held:

“Order XXXVII lays down certain rules of procedure which are applicable only to the
Chief Court, and such rules of procedure can only be applied after the plaint has been
admitted. The rules do not in any way alter the nature of the suit, nor the jurisdiction of
the Court.”

Any order passed under summary proceeding i.e., Order XXXVII, is a “case decided” under
Section 115 of the Code of Civil Procedure, 1908 and therefore is revisable. However, the High
Court generally does not interfere with the discretion exercised by the trial court.12 But High
Court may interfere in appropriate cases, with an order passed granting or refusing leave.13

9
AIR 1917 Cal 657.
10
AIR 1977 Cal 1.
11
AIR 1918 Low Bur 135.
12
Mechelec Engineers & Manufacturers vs. Basic Equipment Corporation, (1976) 4 SCC 687.
13
India Thermal Power Ltd. vs. State of M.P. & Ors., (2000) 3 SCC 379.

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The main objective behind the institution of summary procedure is to ensure an expeditious
hearing and speedy disposal of the suit. The Supreme Court in Rajni Kumar v. Suresh Kumar
Malhotra14 was of the opinion observed:

“It is important to note here that the power under Rule 4 of Order XXXVII is not confined
to setting aside the ex parte decree, it extends to staying or setting aside the execution
and giving leave to appear to the summons and to defend the suit. We may point out that
as the very purpose of Order XXXVII is to ensure an expeditious hearing and disposal of
the suit filed thereunder, Rule 4 empowers the court to grant leave to the Defendant to
appear to summons and defend the suit if the court considers it reasonable so to do, on
such terms as the court thinks fit in addition to setting aside the decree. Where on an
application, more than one among the specified reliefs may be granted by the court, all
such reliefs must be claimed in one application. It is not permissible to claim such reliefs
in successive petitions as it would be contrary to the letter and spirit of the provision.
That is why where an application under Rule 4 of Order XXXVII is filed to set aside a
decree 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, the court is empowered to grant leave to the Defendant to appear to
the summons and to defend the suit in the same application. It is, therefore, not enough
for the Defendant to show special circumstances which prevented him from appearing or
applying for leave to defend, he has also to show by affidavit or otherwise, facts which
would entitle him leave to defend the suit. In this respect, Rule 4 of Order XXXVII is
different from Rule 13 of Order IX.”

Summary suit is an attempt to balance the interests of trade & commercial operations which
requires immediate disposal of suits on one hand, while on the other hand a care has to be taken
that rights if a genuine defendant is not been taken away unnecessarily. But it tilts in the favour
of the party experiencing issues in transactions and amount recovery in order to safeguard
trading and commercial operations and also to make sure that the defendant is not unnecessarily
stretching the litigation thereby preventing the plaintiff from entitlement towards a decree by
raising untenable and frivolous defences.

The inherent power of the Court to allow leave to the defendant in order to defend a matter at
hand is based entirely upon the judicial wisdom. Hence, this power to grant leave is

14
(2003) 5 SCC 315.

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discretionary in nature. However, in Santosh Kumar v. Bhai Mool Singh,15 the Court was of
the opinion that the discretionary power conferred upon the Court by the virtue of Order
XXXVII ought to be exercised judicially, judiciously and with conformance to the well settled
principles of natural justice. Wherever the defence has raised a triable issue, the Court must
grant leave unconditionally.

GRANTING LEAVE TO DEFENDANT

The Court tends to follow the underlying principles while granting a leave to the defendant to
defend the suit16:

1. If the defendant is able to satisfy the Court that he has a good defence to the claim on its
merits, the plaintiff is not entitled to leave to sign judgment and the defendant is entitled
to unconditional leave to defend.
2. If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable
defence although not a positively good defence, the plaintiff is not entitled to sign
judgment and the defendant is entitled to unconditional leave to defend.
3. If the defendant discloses such facts as they may be deemed to be sufficient to entitle him
to defend, even though the affidavit does not positively and immediately make it clear that
he has a defence yet, but instead, shows such a state of facts that may lead the Court to
infer that at the trial of the action, the defendant may be able to establish a defence to the
plaintiff’s claim, the Plaintiff in such a case is not entitled to judgment, and the defendant
is entitled to leave to defend but, in such a case, the court may in its discretion impose
conditions as to the time or mode of trial but not as to payment into court or furnishing
security.
4. If the defendant has no defence or the defence set up as such is illusory or sham or
practically moonshine, then in such cases the plaintiff is entitled to leave to sign judgment
and the defendant is not entitled to the leave to defend.
5. If the defendant has no defence or the defence is illusory or sham or practically moonshine
then though in the normal circumstances, the Plaintiff is entitled the leave of the Court to
sign the judgment, the Court may protect the Plaintiff be allowing the defendant to proceed
under such conditions as the Court may seem reasonable, like the amount claimed in the

15
AIR 1958 SC 321.
16
Kiranmoyee Dassi v. J. Chatterjee, AIR 1949 Cal 479; IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017)
1 SCC 568.

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 suit has to be deposited into the Court beforehand or is secured in any other manner subject
to the satisfaction of the Court, and then the Court might grant leave to the defendant to
defend his suit and prove his/her defence on certain conditions.

No appeal lies against an order granting or refusing leave to defend under rule 3. However, an
appeal can be made after a decree is passed.

DIFFERENCE BETWEEN SUMMARY SUITS AND ORIGINAL SUITS

• Ordinary Suits can be filed for any matter however, the summary suits can only be filed
when the matter is related to bills of exchange, hundies, promissory notes and contracts,
enactments, guarantees of specified nature.
• The principle of res sub-judice is not applicable to summary suits since they can be filed
on the matter directly and substantially in issue in a previous ordinary suit unlike the
ordinary suits.
• The defendant is given a chance to defend himself only if the leave to defend is granted in
a summary suit. While on the other hand, in cases of ordinary suit where the defendant has
a right to defend the averments made by the petitioner in the suit/hearings.
• In case of non-appearance of the defendant or refusal of leave to defend, the plaintiff is
entitled to a decree in summary suits. However, in case of ordinary suits, multiple
summons are served to the defendant before an ex-parte decree could be granted to him.
• Setting aside an ex-parte decree in case of summary suits is stricter and stringent as
compared to ordinary suits where the defendant only needs to show a sufficient cause for
his absence from the hearing. In case of summary suits, there are only special
circumstances of the defendant’s absence from the summary procedure where an ex-parte
decree could be set aside.
The two terms, i.e., “sufficient cause” and “special circumstance” have been lucidly
juxtaposed in the case of Karumili Bharathi v. Prichikala Venkatchalam17. 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 the defendant were to plead that he missed
the bus he wanted to board and consequently he could not appear before the Court. It may

17
1999 (3) ALD 366.

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 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
stricter or more stringent than in “sufficient cause” and depends on the facts of each case.

CONCLUSION

Summary procedures aim at ensuring an expeditious hearing and disposal of the suit and to
prevent unreasonable obstruction by the defendant who has no defence and to assist expeditious
disposal of cases.18 Summary suit of recovery is a quick procedure, under Order XXXVII of
the Code of Civil Procedure for recovery of money when certain conditions are satisfied- that
is written agreement. The difference in procedure is that in ordinary suit, the defendant has a
right to contest whereas in summary procedure the defendant can enter into his defence only
after getting leave of the Court. The constitutional validity of the summary suits has been
upheld.

In conclusion, it can be said that this provision attends to those victims who are afraid of
prolonged litigations and are thus, driven away from justice. It eliminates those cases where
the defendant can possibly have no defence towards the violation or non-compliance providing
speedy remedy to the petitioner.

18
TVC Skyshop Ltd. v. Arun Kumar Mansingka, 2000 AIR SCW 4933.

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 REFERENCES

Books:

• C.K. Takwani, Civil Procedure with Limitation Act, 1963 (EBC, Lucknow, 8th ed., 2020).
• M.P Jain, The Code of Civil Procedure (Wadhwa and Company, Nagpur, 1st ed., 2004).
• Sarkar, Code of Civil Procedure (Wadhwa and Company, Nagpur, 10th ed., 2002).
• Henry Campbell Black, Black’s Law Dictionary (Thomson West, 8th ed., 2004).

Statutes:

• Civil Procedure Code, 1908.

• Constitution of India, 1950.

Websites:

• www.jstor.org
• www.lexisnexis.com/in
• www.manupatrafast.com
• www.scconline.com
• https://www.merriam-webster.com/

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