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SUMMARY SUITS

Order 37 , Rule 1 to 7 of the Civil Procedure Code provides for the summary procedure. CPC provides for a summary procedure in respect of certain suits. Scope of the rule has been amended by the amendment of 1976, wherein summary procedure has been made application to all courts, namely High Courts, City Civil Courts and Courts of Small Causes and other Courts

In order to prevent the unreasonable obstruction laid down by the defendant, who has no defence. It is intended to facilitate the speedy disposal of cases. To guard the Plaintiff against delaying tactics that are indulged by the Defendant To curtail Defendants right to take frivolous defences. To ensure speedy trial for recovery of money, so that no unreasonable delay may be sought.

Suits upon Bills of Exchange, hundies or promissory notes; Suits for recovery of a debt/money due as per written contract Where an amount to be recovered is a fixed amount of money, or a debt other than a penalty, or a guarantee

Summary procedure is a special trial of certain classes of suits by certain courts, it is not repugnant to Article 14 of the Constitution as they are based on reasonable classification. (Cf Kemchand v. Hari, AIR 1979 Del. 7) In the case of Ramkarandas v. Bhagwaandas, AIR 1965 SC 1144, it was held by the Supreme Court that Rule 8 made under the Bombay Rents Hotles and Lodging Hall Rates (Control) Act 1947, is in accordance with Order 37 and is not ultra vires, which provides for institution of ejectment suits summarily.

Order 37 rule 2 deals with it. Once summons of the suit has been issued to the Defendant, he must appear. Defendant is not entitled to defend a summary suit unless he enters an appearnace. If Defendant fails to appear, Plaintiff will be entitled to a decree which will be executed forthwith.

Failure to Enter Appearance: Sub-rule (3) Upon failure of Defendant to Enter Appearance, Court can pass a decree on the basis of allegations made in the plaint, which may be deemed to have been admitted.
Form of summons: Defendant is required to obtain leave from the court within ten days from service of summons thereof. He has to cause his appearance within such period. Obtaining Leave is must: Before 1976 amendment, Defendant was not allowed to appear while the hearing is proceeding, if he failed to obtain leave. But after amendment, the Defendant must enter an appearance and thereafter has to seek leave to defend.

Limitation for Application for Leave: Ten days from the date when summons is served. The Court has no power to extent the time (Mahmudar v. Saratchandra (1900) 5 CWN 259, except according sec. 5 of the Limitation Act applicable to such applications as done by the Bombay High Court .
In Murahari Rao v. Bapayya, AIR 1949 Mad 742, it was held by the madras High Court that a court could entertain Application for extension of time period beyond ten days, for sufficient clause. A power to excuse delay should be implied from the power to set aside an ex parte decree for sufficient cause, under rule 4.

But in Kamala v. Venkata Sastri (1951) 1 MLJ 676, AIR 1951 Mad 895, the court hold the view that there is no power in the court to excuse the delay as Sec.5 of the Limitation Act is inapplicable .

Defendant must apply for leave within ten days. Only if he discloses sufficient cause which entitles him to defend himself, leave may be granted to him. Leave may be granted unconditionally or on such conditions the court may deem just. However, the Court shall not refuse to grant leave to defend unless it feels that defence of Defendant is frivolous or vexatious. Leave may be granted if Defendant shows prima facie case or raises a triable issue (Santosh Kumar v. Mool Singh and Sundaram v. Vallimal). Leave must be conditional if Court has reasonable doubt that the defence is put only to gain time.

Discretion of the court to grant leave to

defend is delineated by the provisions, after the amendment of 1976.


Order 37, rule 3(5) provides that leave to

defend shall not be refused unless the court is satisfied that there is absence of defence, or the defence is frivolous or vexatious.

According to Rule 3(7), time cannot be given

until the defendant enters appearance. Defendant has to served with copies of plaint and annexure thereto which are basis of the suit. Defendant would not be entitled to defend on the ground of non-furnishing of copies. The Expression within Ten days mean period less than ten days or the on the tenth day.

Court may set aside the decree and stay

execution and all defendant to appear and defend the suit The court may order Bill, Hundi or note on which suit is founded; to be deposited with officer of court until the plaintiff gives security for the costs thereof. Cost of noting for non-acceptance of dishonoured bill or note may also be recovered under this Order.

ORDINARY SUITS
Defendant is entitled to defend as a right. Decree cannot be set aside by the trial court except in review

SUMMARY SUIT
He is not entitled to defend without the leave of the court. The trial court may set aside under special circumstances.

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