Summary Procedure (Order 37)

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. [1] 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. [2]

Classes of suits where summary procedure is applied

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.[3]

What is a bill of exchange?

A bill of exchange is a written unconditional order by one party (the drawer) to another (the drawee) to pay a certain sum either immediately or on a fixed date for payment of goods and/or services received. [4] If the sum is to be paid immediately it is called a sight bill. Term bill is the bill of exchange where the sum is to be paid on a fixed date.

Hundies

A Hundie is an unconditional order in writing made by a person directing another to pay a certain sum of money to a person named in the order. It is a financial instrument evolved on the Pakistann sub-continent and used for trade and credit purposes.[5]

Promissory notes

A promissory note contains an unconditional promise to pay a certain sum to the order of a specifically named person or to bearer—that is, to any individual presenting the note. A promissory note can be either payable on demand or at a specific time. [6]

Liquidated demand in money

Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is distinguished from a claim of unliquidated damages, which is a subject of the discretionary assessment by the court. [7]

Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit must be among the following classes:-

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without interest, arising:-

• On a written contract, or
• On an enactment (the recoverable sum should be fixed in money or it should be in the nature of a debt other than a penalty), Or
• On a guarantee (here the claim should be in respect of a debt or liquidated demand only)

A summary suit is instituted by presenting a plaint in an appropriate civil court.

Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific affirmation that the suit is filed under this order. It should also contain that no such relief has been claimed which does not fall under the ambit of rule XXXVII of the CPC. In the title of the suit, following inscription must be there under the number of the suit:-

“(Under Order XXXVII of the Code of Civil Procedure, 1908)”  [8]

Procedures after institution of Summary suit

Under summary procedures, the defendant has to get the leave to defend from the court. A burden is placed upon the defendant to disclose the facts sufficient to entitle him to defend in the application for leave to defend.

Detailed procedures

• After institution of a summary suit, the defendant is required to be served with a copy of the plaint and summons in the prescribed form.  
• Within 10 days of service of summons, the defendant has to enter an appearance.
• If the defendant enters an appearance, the plaintiff shall serve on the defendant a summons for judgment.
• Within 10 days of service of such summons, the defendant has to apply for leave to defend the suit.
• Leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.
• If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to the judgment forthwith.
• If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith.
• Sub-rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in an ordinary manner. [9]

Can a summary suit be tried after the institution of an ordinary suit on the same cause of action?

According to section 10 of the CPC, a court cannot proceed with the trial of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. It is called the principle of res sub-judice.The provision contained in the section is mandatory and no discretion is left with the court.[10]

However, the word trial, in this case, has not been used in its widest sense. The concept of res sub-judice is not applicable to subsequently instituted summary suits.

The Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment. Judgment can also be passed in favor of the plaintiff if:-

(a) The defendant has not applied for leave to defend or if such application has been made and refused, or,

(b) The defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. [11]

When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of leave to defend in summary suits:

(a) If the defendant satisfies the court that he has a substantial defence, the defendant is entitled to an unconditional leave of appeal.

(b) If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the defendant is ordinarily entitled to unconditional leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial judge about the defendant’s good faith, conditional leave to defend is granted.

(d) If the defendant raises a defence which is plausible but improbable, the trial judge may grant conditional leave to defend with conditions as to time or mode of trial, as well as payment into court, or furnishing security.

(e) If the defendant has no substantial defence and raises no genuine triable issue, then no leave to defend is granted.

(f) Where part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.[12]

Decree in summary suits

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint, together with interest and cost in following conditions:-

• If the defendant does not enter an appearance (ex parte decree)
• If the defendant has not applied for leave to defend
• If the defendant has applied for leave to defend but it is refused
• If the leave to defend is granted then the suit proceeds as an ordinary suit and decree is granted as per the CPC.[13]

Setting aside decree in summary suits

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree. The defendant has to satisfy the court that the summons was not duly served or he was prevented by any sufficient cause from appearing in the hearing.

Rule 7 of Order 37 says that except as provided in the order, the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in an ordinary manner. Rule 4 of Order 37 specifically provides for setting aside the decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37.

Under rule 4 of order XXXVII, the court has the power to set aside the ex parte decree passed in summary suit. The court is empowered to stay the execution of such a decree. Under this rule, an application is made 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. To set aside ex parte decree, the defendant has not only to show special circumstances which prevented him from appearing but also facts which would entitle him to leave to defend.[14]

Difference between sufficient cause and special circumstances

For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy the court with sufficient cause for his non-appearance. In summary suits, the ex parte decree may be set aside if the defendant shows special circumstances.

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 he were to plead that he missed the bus he wanted to board and consequently he could not appear before the Court. It may 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 more strict or more stringent than in “sufficient cause”. What would constitute ‘special circumstances’, would depend upon the facts of each case. Special circumstances (for the purpose of setting aside the ex parte decree) may constitute a ‘sufficient cause’, but not vice versa. [15]