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Delhi District Court

Smt Sunita vs Ashish Kumar on 6 January, 2026

         IN THE COURT OF SH. SUMIT DALAL :
     DISTRICT JUDGE - 04 : SOUTH WEST DISTRICT
            DWARKA COURTS : NEW DELHI

RCA CIVIL DJ ADJ 93/2025
CNR NO: DLSW01-006782-2025

SMT. SUNITA
W/O SH. VIJAY
R/O: CD-40, POWER HOUSE COLONY,
ROHTAK ROAD, NEW DELHI - 110035
                                                   ....APPELLANT

                             VERSUS

SH. ASHISH KUMAR
S/O SH. VIRENDER KUMAR
R/O: WZ-697, D BATA CHOWK,
BADHIYAL MOHALLA,
PALAM VILLAGE, SAINI MOHALLA,
PALAM VILLAGE, DELHI - 110045.
                                                  ....RESPONDENT

             DATE OF INSTITUTION              :      28.07.2025
             DATE OF ARGUMENTS                :      06.01.2026
             DATE OF JUDGMENT                 :      06.01.2026

                           JUDGMENT

1. The present appeal is directed against the judgment and decree dated 29.05.2025 passed by the Ld. ASCJ-cum-JSCC- cum-Guardian Judge, Dwarka Courts, New Delhi in CS SCJ 2084/24, "Ashish Kumar v. Sunita", whereby the suit filed under Order XXXVII CPC for recovery of ₹50,000/- (with interest and costs) was decreed on the premise that the defendant, despite service, did not enter appearance within the prescribed period.

2. The principal ground urged by the appellant is that she was not served with the "summons for appearance" as contemplated under Order XXXVII CPC, but was instead served with ordinary summons of an ordinary suit (Order V Rule 1 CPC) calling upon her to file written statement within 30 days; hence, the decree under Order XXXVII CPC is vitiated.

3. The impugned decision is a decree. An appeal against a decree is maintainable under Section 96 CPC. The availability of a remedy under Order XXXVII Rule 4 CPC (before the same court which passed the decree) does not, by itself, bar the statutory remedy of appeal.

Relevant chronology (from trial court record as placed before this Court)

4. The suit was instituted as a summary suit under Order XXXVII CPC. The impugned judgment records that the defendant was served on 22.02.2025 and did not enter appearance within stipulated period, and therefore the suit was decreed under Order XXXVII Rule 2(3) CPC.

5. The appellant's case, on perusal of the trial court record, is that the document served upon her was not the special summons contemplated under Order XXXVII CPC, but was ordinary summons requiring filing of written statement within 30 days.

Point for determination RCA CIVIL DJ ADJ 93/2025 Page 2 of 5

6. Point of determination before this Court is - "Whether the judgment and decree dated 29.05.2025 can be sustained when the defendant was not served with summons in the manner and form prescribed for a summary suit under Order XXXVII CPC?"

Legal position

7. Order XXXVII provides a summary procedure. The defendant's obligation to "enter appearance within 10 days", and the drastic consequence of a decree on default, arises only when the defendant is served with the special summons of the suit under Order XXXVII, i.e., summons for appearance in the prescribed form.

8. The statutory scheme requires that the summons in a summary suit be in the prescribed form (Form No. 4, Appendix B), which specifically informs the defendant of (i) the summary nature of the suit, (ii) the requirement to enter appearance within the prescribed time, and (iii) the consequence of default. Hon'ble Superior Courts have repeatedly emphasised that to avoid "technical objection" and to ensure compliance with Order XXXVII, fresh summons in Form No. 4 (Appendix B) should be issued where required.

Appreciation and findings

9. This Court has perused the trial court record produced in appeal. The appellant's contention is specific: what was served carried the tenor of ordinary summons ("file written statement within 30 days... appear personally or through pleader..."), which RCA CIVIL DJ ADJ 93/2025 Page 3 of 5 is the language typical of summons issued under Order V Rule 1 CPC, and not the language/format of Form No. 4, Appendix B meant for summary suits.

10. In a summary suit, it is not a mere formality whether the defendant is served with the correct summons. The entire architecture of Order XXXVII rests on the defendant receiving a clear statutory notice that:

a. the suit is a summary suit, b. appearance must be entered within the prescribed period, and c. default entails a decree without trial.

11. If the summons served is that of an ordinary suit (calling for written statement within 30 days), the defendant is not put to notice of the special and penal consequence attached to non- entry of appearance under Order XXXVII. In such circumstances, the foundation for invoking the deeming fiction under Order XXXVII Rule 2(3) CPC ("allegations deemed admitted") is absent.

12. Therefore, once this Court finds, on the basis of the trial court record, that the defendant was not served with summons in the manner prescribed for Order XXXVII, the decree dated 29.05.2025 cannot be sustained. The impugned decree is accordingly liable to be set aside on this short, but substantial, ground of procedural illegality resulting in denial of fair opportunity, without expressing any opinion on the merits of the claim or the defence.

Relief

13. In view of the above findings, the appeal is allowed.

14. The judgment and decree dated 29.05.2025 passed by the Ld. Trial Court in CS SCJ 2084/24 (Ashish Kumar v. Sunita) is set aside.

15. The suit is restored to the file of the Ld. Trial Court to proceed afresh from the stage of issuance/service of summons for appearance under Order XXXVII CPC, in the prescribed form (Form No. 4, Appendix B), and thereafter to follow the procedure under Order XXXVII (including summons for judgment and leave to defend) strictly in accordance with law.

16. All rights and contentions of the parties on the merits are kept open.

17. No order as to costs.

18. Trial Court Record be sent back along with a copy of this judgment. Appeal file be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT DATED: 06.01.2026 Digitally signed by SUMIT SUMIT DALAL DALAL Date:

2026.01.06 16:42:53 +0530 (SUMIT DALAL) DISTRICT JUDGE - 04 :

SOUTH WEST DISTRICT DWARKA COURTS : NEW DELHI RCA CIVIL DJ ADJ 93/2025 Page 5 of 5