Karnataka High Court
Mr C Ganesh Narayan vs M/S Common Threads on 13 August, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 23.07.2025
Pronounced on : 13.08.2025 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.15840 OF 2025 (GM - CPC)
BETWEEN:
MR.C.GANESH NARAYAN
S/O LATE MR.C.V.NARAYAN,
AGED ABOUT 46 YEARS,
R/AT NO. 44, OSBORNE ROAD,
ULSOOR,
BENGALURU - 560 042.
... PETITIONER
(BY SRI DHANANJAY V.JOSHI, SR.ADVOCATE A/W
SMT.KRUTIKA RAGHAVAN, ADVOCATE)
AND:
1 . M/S. COMMON THREADS
PARTNERSHIP FIRM
(PAN NO. AAFFC1918G)
OFFICE AT 121-122,
2ND CROSS, TELECOM LAYOUT,
SRIRAMPURA, JAKKUR POST,
BENGALURU - 560 038.
REPRESENTED BY ITS PARTNER
2
MRS. SMITHA ZACHARIAH,
2 . MRS. SMITHA ZACHARIAH,
AGED ABOUT 48 YEARS
W/O MICHAEL PIERS,
R/AT NO.9, 1ST FLOOR,
1ST MAIN, 4TH CROSS,
DEFENCE COLONY,
INDIRANAGAR
BENGALURU - 560 038.
3 . MR. MICHAEL PIERS,
AGED ABOUT 54 YEARS
S/O M.C.PIERS
R/AT NO. 9, 1ST FLOOR, 1ST MAIN,
4TH CROSS, DEFENCE COLONY,
INDIRANAGAR
BENGALURU - 560 038.
... RESPONDENTS
(BY SRI S.SRIVATSA, SR.ADVOCATE FOR
SMT.UDITA RAMESH, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A) SET ASIDE THE ORDER
DATED 22/02/2025 IN OS NO. 7263/2024 BEFORE XXIV ADDL.
CITY AND CIVIL AND SESSIONS COURT, BENGALURU (CCH-6) VIDE
I.A.NO.1 (ANNEXURE - A). ; B) TO DIRECT THE TRIAL COURT TO
ISSUE FRESH SUMMONS UNDER FORM NO. 4 OF APPENDIX B OF
THE CODE OF CIVIL PROCEDURE, 1908 IN OS NO. 7263/2024
BEFORE XXIV ADDL. CITY AND CIVIL AND SESSIONS COURT,
BENGALURU (CCH-6), ANNEXURE - A IN ACCORDANCE WITH LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.07.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/plaintiff is before this Court calling in question
an order dated 22-02-2025 passed by the XXIV Additional City Civil
& Sessions Judge, Bengaluru in O.S.No.7263 of 2024, whereby the
concerned Court issues regular suit summons instead of summary
suit summons. The form in which the summons is issued has
become the fulcrum of the subject lis.
2. Heard Sri Dhananjay V. Joshi, learned senior counsel
appearing for the petitioner and Sri S. Srivatsa, learned senior
counsel appearing for the respondents/defendants.
3. Facts, in brief, germane are as follows: -
The petitioner/plaintiff is engaged in the business of gems
and jewellery. 1st defendant is a partnership firm and other
defendants are its partners. The partnership firm is engaged in the
business of manufacturing and exporting readymade garments. The
transaction narrated in the case at hand span over a period of 13
4
years between 2006 and 2019. It is the case of the plaintiff that
defendants approached him for a loan/funds for expansion of their
business on the premise that the business was running successfully.
Through the years, the petitioner is said to have loaned different
amounts of money on different dates. Several disputes between the
two arose with regard to repayment of money. The petitioner then
caused a legal notice on 12-03-2020 calling upon the defendants to
pay `24,14,50,000/- along with interest at 18% p.a. On
18-05-2020 the defendants are said to have replied to the legal
notice acknowledging the fact that they owe a loan amount of
`24.50 crores along with interest and that they were willing to give
equity to the petitioner in their Company. The matter did not
materialize. The petitioner then, is said to have knocked at the
doors of the learned Magistrate invoking Section 200 of the Cr.P.C.
The learned Magistrate orders investigation under Section 156(3) of
the Cr.P.C. Whether the matter is pending investigation or
otherwise, is not the issue in the present lis.
3.1. After all the aforesaid events, the petitioner files a suit in
O.S.No.7263 of 2024 under Order XXXVII of the CPC for a summary
5
trial. The concerned Court after hearing the arguments of the
petitioner/plaintiff and the application, posts the matter for interim
order. In terms of the impugned order, the Court issues summons
in Form No.1 of Appendix-B of the CPC, which according to the
petition averments ought to have been issued under Form No.4 of
Appendix-B of the CPC. Pursuant to the receipt of summons, the
defendant No.2 filed I.A.No.III under Order VII Rule 11(a) and (d)
of the CPC seeking rejection of the plaint on the ground that the
suit was of commercial nature and it had to be brought before the
Commercial Court. The other defendants follow suit by adopting
contents of the application seeking rejection of the plaint. The 2nd
defendant then files an application in I.A.No.IV under Order I Rule
10 of the CPC to delete her from the array of parties. When things
stood thus, the petitioner has approached this Court in the subject
petition seeking quashment of the impugned order dated
22-02-2025 with a direction to the concerned Court to issue fresh
summons under Form No.4 of Appendix-B of the CPC for conduct of
summary trial and not regular trial, by treating the suit as a
summary suit.
6
4. The learned senior counsel Sri Dhananjay V. Joshi
appearing for the petitioner would contend that the concerned
Court has erred in issuing summons under Form No.1 of Appendix
B, which applies to regular suits wherein written statement is to be
filed. The concerned Court ought to have issued summons in Form
No.4 of Appendix B of the CPC in terms of Order XXXVII Rule 2(2)
of the CPC. Only after issuing such summons and its receipt, the
defendants can seek permission from the Court to defend the suit in
terms of Order XXXVII Rule 2(3) of the CPC. Service of summons in
a wrong manner has vitiated the entire proceedings and has
violated the rights of the petitioner under Order XXXVII of the CPC.
He would contend that in a case of this nature, it was mandatory
for the concerned Court to issue summons in Form No.4 of
Appendix B of the CPC for summary trial. Now taking advantage of
the irregularity, the defendants have filed their objections treating
the suit as a regular suit. Issuance of wrong summons is also taken
advantage of for filing an application under Order VII Rule 11(d) of
the CPC seeking rejection of the plaint. The entire process has now
defeated the very purpose of summary trial and strikes at its root
and, therefore, the order be quashed and remit back the matter to
7
the stage of issuance of fresh summons, are the submissions of the
learned senior counsel.
5. Per contra, the learned senior counsel Sri S.Srivatsa,
appearing for the respondents, at the outset submits that his
submissions be taken as the objections to the petition. It is the case
of the defendants that the concerned Court has rightly issued
regular suit summons under Form No.1 of Appendix-B of the CPC.
For a suit to be summarily tried under Order XXXVII Rule 1 of the
CPC there must be a written contract and recovery of money should
be based on honoured cheques. The concerned Court can decide
upon the maintainability issue before issuance of summons under
Form No.1 and the defendants are required to be heard on the
issue of maintainability before issuing summons. He would seek to
place reliance upon several judgments rendered by different High
Courts contending that there is no judgment of this Court on the
issue.
6. The learned senior counsel for the petitioner would join
issue to contend that a summary trial is maintainable under Order
8
XXXVII Rule 1 of the CPC and the concerned Court at the time of
issuing summons cannot suo motu decide maintainability of the
suit. At that stage, the learned senior counsel submits that, the
defendants have no right of being heard in the suit even before
issue of summons or directing appearance. He would also rely on
certain judgments of different High Courts on the issue.
7. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record. In furtherance whereof, the issues that fall
for consideration are:
(i) Whether the impugned order of issuing
regular summons under Form No.1 instead of
summary summons under Form No.4 suffers
from want of tenability for it being contrary to
law?
(ii) Whether the concerned Court can suo motu
decide on the maintainability of the summary
suit at the time of issuing summons ?
9
(iii) Whether the defendant has the right of being
heard on the question of maintainability of the
summary suit before the issuance of summary
summons ?
(iv) Whether the subject suit is maintainable as a
summary suit under Order XXXVII Rules 1
and 2 of the CPC or otherwise?
Issue Nos.(i) to (iii) are intertwined. Therefore, I deem it
appropriate to consider the said three issues together.
RE: ISSUE NOs.(i), (ii) AND (iii):-
8. The afore-narrated facts are not in dispute. For
consideration of the issue, elaborate facts need not be reiterated,
as it revolves around summons for summary trial. It would suffice if
the narration would commence from the issuance of legal notice.
Legal notice is caused by the petitioner on 12-03-2020. The
petitioner then knocks on the doors of the concerned Court under
Order XXXVII of the CPC initiating proceedings for summary trial.
The prayer in the suit is as follows:
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"26. WHEREFORE, it is most respectfully prayed that this
Hon'ble Court be pleased:
(a) to direct defendant No.2 and 3 to pay the plaintiff a
sum of INR 4,14,50,000/- (Rupees Four Crores
Fourteen Lakhs Fifty Thousand only) towards
money due for the period between June 2006 and
March 2019 along with 18% interest thereon from
due date till the date of actual payment.
(b) Grant costs; and
(c) Pass any other order or order(s) as this Hon'ble
Court may deem fit in the interests of justice and
equity."
The suit was thus for recovery of an amount of Rs.4,14,50,000/-
towards money due for the period between 2006 and 2019. Along
with the plaint, the petitioner files two applications - I.A.No.I/2024
under Order XXXVII Rule 3 of the CPC for issuance of summons for
judgment in Form No.4A of Appendix B of CPC and I.A.No.II/2024
under Order XXXVII Rule 2 of the CPC for issuance of summons in
Form No.4 of Appendix B of CPC. The office note reads as follows:
"1. I.A.1/2024-U/O 37 of CPC Rule 3
IA Relief:
PRAYS TO ISSUE A SUMMONS FOR JUDGMENT IN FORM
NO.4A OF APPENDIX-B TO THE CODE OF CIVIL PROCEDURE
1908 TO THE DEFENDANTS AND AS PRAYED IN I.A.
2. I.A 2/2024 - U/O 37 OF CPC RULE 2
IA Relief:
PRAYS TO ISSUE A SUMMONS IN FORM NO.4 OF APPENDIX-B
TO THE CPC AND AS PRAYED IN I.A."
11
The concerned Court on 15.10.2024 hears the arguments of the
plaintiff on both IA Nos.I and II and posts the matter for passing
interim orders. The order sheet reads as follows:
"Heard the arguments of Ld. Counsel for plaintiff on IA
No.I to II.
For interim orders
Call on 16.10.2024
Sd/
15/10/2024
XXIV A & SJ, B'LURU."
The concerned Court then passes the order only on I.A.No.1/2024,
which was filed for issuance of summons for judgment in Form
No.4A of Appendix B of the CPC. The order reads as follows:
"ORDER ON I.A.NO.I
Heard learned counsel for plaintiff on I.A.No.I.
Perused the plaint averments, I.A.No.1, affidavit annexed
thereto and documents along with plaint.
Plaintiff has filed this I.A. u/o XXXVII Rule 3 of CPC
praying to issue summons for judgment in Form No.4A of
Appendix-B to the Code of Civil Procedure, 1908 to the
defendants, in the interest of justice and equity.
After perusal of averments in the plaint as well as in the
application and after hearing the learned counsel for the plaintiff
12
and on considering the materials available on record, this court
deems it just and proper to hear other side before passing ex-
parte order as prayed for in I.A.No.1. Hence, issue emergent
notice of I.A.No.1 along with suit summons to the defendants.
Returnable by 01-04-2025.
Sd/-
21/2/2025
XXIV ACC & SJ,
BENGALURU."
The concerned Court holds that after hearing the counsel for the
plaintiff and perusing the plaint it is required to hear the other side
before passing an ex-parte order. The concerned Court issues
regular suit summons under Form No.1 of Appendix B of the CPC
instead of summary suit summons under Form No.4 of Appendix B
of the CPC in a suit instituted under Order XXXVII of the CPC. I
therefore, deem it appropriate to notice Order XXXVII of the CPC,
which reads as follows:
"ORDER XXXVII
SUMMARY PROCEDURE
1. Courts and classes of suits to which the Order is
to apply.--(1) This Order shall apply to the following Courts,
namely:--
(a) High Courts, City Civil Courts and Courts of Small Causes;
and
(b) other Courts:
13
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
(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.
(iv) suit for recovery of receivables instituted by any
assignee of a receivable.
2. 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; and
14
(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, 1908)."
(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 be 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
determined by the High Court from time to time by rules made
in that behalf and such decree may be executed forthwith.]
3. Procedure for the appearance of defendant.--(1)
In a suit to which this Order applies, the plaintiff shall, together
with the summons under Rule 2, serve on the defendant a copy
of the plaint and annexures thereto and the defendant may, at
any time within ten days of such service, enter an appearance
either in person or by pleader and, in either case, he shall file in
Court an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and
other judicial processes, required to be served on the defendant,
shall be deemed to have been duly served on him if they are left
at the address given by him for such service.
(3) On the day of entering the appearance, notice of such
appearance shall be given by the defendant to the plaintiff's
pleader, or, if the plaintiff sues in person, to the plaintiff
himself, either by notice delivered at or sent by a pre-paid letter
directed to the address of the plaintiff's pleader or of the
plaintiff, as the case may be.
(4) If the defendant enters an appearance, the plaintiff
shall thereafter serve on the defendant a summons for
judgment in Form No. 4-A in Appendix B or such other Form as
15
may be prescribed from time to time, returnable not less than
ten days from the date of service supported by an affidavit
verifying the cause of action and the amount claimed and
stating that in his belief there is no defence to the suit.
(5) The defendant may, at any time within ten days from
the service of such summons for judgment, by affidavit or
otherwise disclosing such facts as may be deemed sufficient to
entitle him to defend, apply on such summons for leave to
defend such suit, and leave to defend may be granted to him
unconditionally or upon such terms as may appear to the Court
or Judge to be just:
Provided that leave to defend shall not be refused unless
the Court is satisfied that the facts disclosed by the defendant
do not indicate that he has a substantial defence to raise or that
the defence intended to be put up by the defendant is frivolous
or vexatious:
Provided further that, where a part of the amount claimed
by the plaintiff is admitted by the defendant to be due from him,
leave to defend the suit shall not be granted unless the amount
so admitted to be due is deposited by the defendant in Court.
(6) At the hearing of such summons for judgment,--
(a) if the defendant has not applied for leave to defend, or if
such application has been made and is refused, the
plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or
any part of the claim, the Court or Judge may direct him
to give such security and within such time as may be
fixed by the Court or Judge and that, on failure to give
such security within the time specified by the Court or
Judge or to carry out such other directions as may have
been given by the Court or Judge, the plaintiff shall be
entitled to judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by
the defendant, excuse the delay of the defendant in entering an
appearance or in applying for leave to defend the suit.
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4. Power to set aside decree.--After decree the Court
may, under special circumstances set aside the decree, and if
necessary stay or set aside execution, and may give leave to
the defendant to appear to the summons and to defend the suit,
if it seems reasonable to the Court so to do, and on such terms
as the Court thinks fit.
5. Power to order bill, etc., to be deposited with
officer of Court.--In any proceeding under this Order the Court
may order the bill, hundi or note on which the suit is founded to
be forthwith deposited with an officer of the Court, and may
further order that all proceedings shall be stayed until the
plaintiff gives security for the costs thereof.
6. Recovery of cost of noting non-acceptance of
dishonoured bill or note.--The holder of every dishonoured
bill of exchange or promissory note shall have the same
remedies for the recovery of the expenses incurred in noting the
same for non-acceptance or non-payment, or otherwise, by
reason of such dishonour, as he has under this Order for the
recovery of the amount of such bill or note.
7. Procedure in suits.--Save as provided by this Order,
the procedure in suits hereunder shall be the same as the
procedure in suits instituted in the ordinary manner."
Order XXXVII deals with Courts and classes of suits to which the
said Order would apply. It is under the heading 'Summary
Procedure'. Order XXXVII Rule 2 of the CPC deals with the
institution of summary suits. A suit under Order XXXVII may be
instituted by presenting a plaint, which shall contain specific
averments that the suit is filed under this order; that no relief which
does not fall within the ambit of Rule 2 has been claimed in the
17
plaint and an inscription that stating "Under Order XXXVII of the
CPC, 1908" added in the title of the suit. Sub-rule (2) of Rule 2
mandates summons to be issued in Form No.4. Sub-rule (3) of Rule
2 mandates that the defendant shall not defend the suit referred to
in Sub-rule (1) unless he enters appearance and in default, an ex-
parte order can be passed. Sub-rule (1) of Rule 3 of Order XXXVII
of the CPC mandates that along with the summons under Order
XXXVII Rule 2 of the CPC, the plaintiff has to serve upon the
defendant a copy of the plaint and the annexures, only after which
the defendant may enter appearance. Sub-rule (3) of Rule 3 holds
that on the day of entering the appearance, notice of such
appearance should be given by the defendant to the plaintiff. Sub-
rule (4) of Rule 3 mandates that only after the defendant enters
appearance, shall the plaintiff serve on the defendant summons for
judgment in Form No. 4-A in Appendix B of CPC. Sub-rule (5) of
Rule 3 states that only after the service of summons for judgment,
the defendant may apply for leave to defend the suit by filing an
affidavit disclosing such facts as may be deemed sufficient to entitle
him to defend.
18
9. In the light of the aforesaid facts, the interpretation of
statutory provisions has been considered by the Apex Court and
other High Courts. Therefore, it becomes apposite to notice the
judgments rendered by the Apex Court or the other High Courts.
9.1. The Apex Court in the case of INDIAN BANK v.
MAHARASHTRA STATE COOPERATIVE MARKETING
FEDERATION LTD.,1 holds that the stage of determination of the
matter in issue will arise in a summary suit only after the defendant
obtains leave. The trial would really begin only after leave is
granted to the defendant which is in consonance with the scheme of
summary procedure as provided in Order XXXVII. In the aforesaid
judgment. The Apex Court holds as follows:
"7. Section 10 of the Code prohibits the court from
proceeding with the trial of any suit in which the matter in issue
is also directly and substantially in issue in a previously
instituted suit provided other conditions mentioned in the
section are also satisfied. The word "trial" is no doubt of a very
wide import as pointed out by the High Court. In legal parlance
it means a judicial examination and determination of the issue
in civil or criminal court by a competent Tribunal. According to
Webster's Comprehensive Dictionary, International Edition, it
means the examination, before a tribunal having assigned
jurisdiction, of the facts or law involved in an issue in order to
determine that issue. According to Stroud's Judicial Dictionary
1
(1998) 5 SCC 69
19
(5th Edn.), a "trial" is the conclusion, by a competent tribunal,
of questions in issue in legal proceedings, whether civil or
criminal. Thus in its widest sense it would include all the
proceedings right from the stage of institution of a plaint in a
civil case to the stage of final determination by a judgment and
decree of the court. Whether the widest meaning should be
given to the word "trial" or that it should be construed narrowly
must necessarily depend upon the nature and object of the
provision and the context in which it is used.
8. Therefore, the word "trial" in Section 10 will have to be
interpreted and construed keeping in mind the object and
nature of that provision and the prohibition to "proceed with the
trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit". The object
of the prohibition contained in Section 10 is to prevent the
courts of concurrent jurisdiction from simultaneously trying two
parallel suits and also to avoid inconsistent findings on the
matters in issue. The provision is in the nature of a rule of
procedure and does not affect the jurisdiction of the court to
entertain and deal with the latter suit nor does it create any
substantive right in the matters. It is not a bar to the institution
of a suit. It has been construed by the courts as not a bar to the
passing of interlocutory orders such as an order for
consolidation of the latter suit with the earlier suit, or
appointment of a receiver or an injunction or attachment before
judgment. The course of action which the court has to follow
according to Section 10 is not to proceed with the "trial" of the
suit but that does not mean that it cannot deal with the
subsequent suit any more or for any other purpose. In view of
the object and nature of the provision and the fairly settled legal
position with respect to passing of interlocutory orders it has to
be stated that the word "trial" in Section 10 is not used in its
widest sense.
9. The provision contained in Section 10 is a general
provision applicable to all categories of cases. The
provisions contained in Order 37 apply to certain classes
of suits. One provides a bar against proceeding with the
trial of a suit, the other provides for granting of quick
relief. Both these provisions have to be interpreted
harmoniously so that the objects of both are not
frustrated. This being the correct approach and as the
20
question that has arisen for consideration in this appeal
is whether the bar to proceed with the trial of
subsequently instituted suit contained in Section 10 of
the Code is applicable to a summary suit filed under
Order 37 of the Code, the words "trial of any suit" will
have to be construed in the context of the provisions of
Order 37 of the Code. Rule 2 of Order 37 enables the
plaintiff to institute a summary suit in certain cases. On
such a suit being filed the defendant is required to be
served with a copy of the plaint and summons in the
prescribed form. Within 10 days of service the defendant
has to enter an appearance. Within the prescribed time
the defendant has to apply for leave to defend the suit
and 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
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. 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 the ordinary
manner. Thus in classes of suits where adopting summary
procedure for deciding them is permissible the defendant
has to file an appearance within 10 days of the service of
summons and apply for leave to defend the suit. If the
defendant does not enter his appearance as required or
fails to obtain leave the allegations in the plaint are
deemed to be admitted and straightaway a decree can be
passed in favour of the plaintiff. The stage of
determination of the matter in issue will arise in a
summary suit only after the defendant obtains leave. The
trial would really begin only after leave is granted to the
defendant. This clearly appears to be the scheme of
summary procedure as provided by Order 37 of the Code.
10. Considering the objects of both the provisions, i.e.,
Section 10 and Order 37 wider interpretation of the word
"trial" is not called for. We are of the opinion that the
word "trial" in Section 10, in the context of a summary
suit, cannot be interpreted to mean the entire
21
proceedings starting with institution of the suit by
lodging a plaint. In a summary suit, the "trial" really
begins after the court or the judge grants leave to the
defendant to contest the suit. Therefore, the court or the
judge dealing with the summary suit can proceed up to
the stage of hearing the summons for judgment and
passing the judgment in favour of the plaintiff if (a) the
defendant has not applied for leave to defend or if such
application has been made and refused or if (b) the
defendant who is permitted to defend fails to comply with
the conditions on which leave to defend is granted.
(Emphasis Supplied)
9.2 The High Court of Allahabad while interpreting Order
XXXVII and all the Rules appended to Order XXXVII in the case of
SAM HIGGINBOTTOM OF AGRICULTURE TECHNOLOGY AND
SCIENCE v. ACURITE CONTRACTORS AND ENGINEERS,2 holds
as follows:
"9. Before proceeding to consider the rival submissions, it
would be apposite to refer to the object which the provisions of
Order XXXVII seek to achieve. The principle object for
providing summary procedure in certain classes of suits
was to prevent unreasonable obstruction by a defendant
who had no real defense thereby assisting and securing
speedy and expeditious disposal of cases. The procedure
prescribed in Order XXXVII of the Code is a step in
ensuring early disposal of commercial cases such as suits
based on negotiable instruments or suits where the
plaintiff seeks only to recover a debt or liquidated
demand in money payable by the defendant, with or
2
2016 SCC OnLine All 2277
22
without interest, arising on a written contract; or 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 on a guarantee, where the claim against the
principal is in respect of a debt or liquidated demand
only. The fundamental difference in the procedure of an
ordinary suit with that of a summary suit is that in an
ordinary suit the defendant has inherent right to defend
for which no leave is required whereas in a summary suit,
the defendant has to enter an appearance within a
specified period upon service of summons in a prescribed
form and thereafter upon service of summons for
judgment, which again is in a prescribed form, has to
seek from the Court or the Judge leave to defend. A
challenge was laid to the constitutionality of Order
XXXVII on the ground that it violated the principles of
natural justice and was arbitrary as well as
discriminatory. The Calcutta High Court while upholding
its validity in the case of Ambalal Purusottamdas And
Co. v. Jawarlal Purusottam Dave : AIR 1953 Calcutta 758
observed that Order XXXVII is based on a reasonable and
justifiable classification; and that the procedure under
Order XXXVII is neither against the principles of natural
justice nor it is unreasonable within any constitutional
prohibition.
........ ........ ........
12. A perusal of the amended provisions of Rules 1, 2
and 3 would go to show that by virtue of amendment the
list of courts to which, and the classes of suits in which,
summary procedure was applicable was expanded. Apart
from that the amendment provided for the sequence in
which the defendant had to enter an appearance upon
service of summons in From 4 and, thereafter to apply for
leave to defend upon service of summons for judgment in
Form 4-A. Because before the amendment the defendant
had to obtain leave of the Judge to appear and to defend.
Accordingly, under the amended provisions the sequence
is that summons of the suit is issued first and when the
defendant appears, the plaintiff is to serve on the
defendant a summons for judgment. When summons for
judgment is served, the defendant has to obtain leave of
the Court to defend the suit. Prior to the amendment, there
23
was no provision for service of summons for judgment though
the summons of the suit were to be served in Form 4 whereas
now the defendant is to be first served summons in Form 4 and,
thereafter, when he enters appearance in response thereto, the
plaintiff is required to serve on him the summons for judgment
in Form 4 A, which has to be supported by an affidavit verifying
the cause of action and the amount claimed with a statement
that in his belief there is no defense to the suit. Upon service
of the summons for judgment in Form 4 A, the defendant
has a right to apply for leave to defend, at any time
within ten days from the date of service, supported by an
affidavit or otherwise disclosing such facts as may be
deemed sufficient to entitle him to defend, upon which,
leave to defend may be granted to him unconditionally or
upon such terms as may appear to the Court or Judge to
be just. Proviso 1 to sub-rule (5) of Rule 3 of Order XXXVII
provides that leave to defend shall not be refused unless the
Court is satisfied that the facts disclosed by the defendant do
not indicate that he has a substantial defense to raise or that
the defense intended to be put up by the defendant is frivolous
or vexatious. Proviso 2 of sub-rule (5) of Order XXXVII provides
that where a part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend
the suit shall not be granted unless the amount so admitted to
be due is deposited by the defendant in Court.
........ ........ ........
17. The difference in procedure of a summary suit with that
of an ordinary suit up to the stage of hearing summons for
judgment has been examined and considered by the Apex Court
in the case of Indian Bank v. Maharashtra State Cooperative
Marketing Federation Ltd. : (1998) 5 SCC 69. The question
which arose before the Apex Court in that case was as to
whether the bar to proceed with the trial of a subsequently
instituted suit, as contemplated by Section 10 of the Code, was
applicable to a summary suit instituted under Order XXXVII of
the Code. In that case, a summary suit was instituted for
obtaining a money decree by alleging that the amount had
become recoverable under a Letter of Credit. Plaintiff took out
summons for judgment and the defendant appeared before the
Court and moved an application seeking stay of the summary
suit on the ground that he had already instituted a suit against
the plaintiff for recovery of a certain sum of money prior to the
24
filing of the summary suit. The trial Judge, who heard summons
for judgment, held that the concept of trial as contained in
Section 10 of the Code is applicable only to regular/ordinary suit
and not to a summary suit instituted under Order XXXVII of the
Code and, therefore, further proceedings under summary suit
were not required to be stayed. The defendant filed an appeal.
The appellate court held that the word 'trial' in Section 10 has
not been used in a narrow sense and would mean entire
proceeding after the defendant enters his appearance and,
therefore, the appellate court held that Section 10 of the Code
applies to a summary suit also. Aggrieved by the decision of the
appellate court, the plaintiff of that suit filed appeal before the
Apex Court.Before the Apex Court, it was argued that if section
10 was made applicable to summary suits also, the very object
of making a separate provision for summary suits would be
frustrated. While deciding the said case, the Apex Court in
paragraph nos. 9 and 10 of its decision observed as follows:--
"9. The provision contained in Section 10 is a general
provision applicable to all categories of cases. The
provisions contained in Order 37 apply to certain classes
of suits. One provides a bar against proceeding with the
trial of a suit, the other provides for granting of quick
relief. Both these provisions have to be interpreted
harmoniously so that the objects of both are not
frustrated. This being the correct approach and as the
question that has arisen for consideration in this appeal is
whether the bar to proceed with the trial of subsequently
instituted suit contained in Section 10 of the Code is applicable
to a summary suit filed under Order 37 of the Code, the words
'trial of any suit' will have to be construed in the context of the
provisions of Order 37 of the Code. Rule 2 of Order 37
enables the plaintiff to institute a summary suit in
certain cases. On such a suit being filed the defendant is
required to be served with a copy of the plaint and
summons in the prescribed form. Within 10 days of
service the defendant has to enter an appearance.
Within the prescribed time the defendant has to apply
for leave to defend the suit and 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
0becomes entitled to judgment forthwith. If the
25
conditions on which leave was granted are not complied
with by the defendant then also the plaintiff becomes
entitled to judgment forthwith. 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 the ordinary manner.
Thus in classes of suits where adopting summary
procedure for deciding them is permissible the
defendant has to file an appearance within 10 days of
the service of summons and apply for leave to defend
the suit. If the defendant does not enter his appearance
as required or fails to obtain leave the allegations in the
plaint are deemed to be admitted and straightaway a
decree can be passed in favour of the plaintiff. The
stage of determination of the matter in issue will arise
in a summary suit only after the defendant obtains
leave. The trial would really begin only after leave is
granted to the defendant. This clearly appears to be the
scheme of summary procedure as provided by Order 37
of the Code.
10. Considering the objects of both the provisions, i.e.,
Section 10 and Order 37 wider interpretation of the word 'trial'
is not called for. We are of the opinion that the word 'trial' in
Section 10, in the context of a summary suit, cannot be
interpreted to mean the entire proceedings starting with
institution of the suit by lodging a plaint. In a summary suit
the 'trial' really begins after the Court or the Judge
grants leave to the defendant to contest the suit.
Therefore, the Court or the Judge dealing with the
summary suit can proceed up to the stage of hearing the
summons for judgment and passing the judgment in
favour of the plaintiff if (a) the defendant has not
applied for leave to defend or if such application has
been made and refused or if (b) the defendant who is
permitted to defend fails to comply with the conditions
on which leave to defend is granted."
(Emphasis Supplied)
18. From the observations of the Apex Court in the
judgment of Indian Bank's case (supra), the following
position emerges:
(a) Order XXXVII provides a special/summary
procedure for certain classes of suits. Rule 2 thereof
26
enables the plaintiff to institute a summary suit in certain
cases. On such a suit being instituted the defendant is
required to be served with a copy of the plaint and
summons in the prescribed form. Within 10 days of
service thereof the defendant has to enter an
appearance. Thereafter the plaintiff has to serve on the
defendant a summons for judgment in the prescribed
form. Upon service thereof, within the prescribed time
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 is
refused, the plaintiff becomes entitled to judgment
forthwith. Likewise where the conditions on which leave
was granted are not complied with by the defendant then
also the plaintiff becomes entitled to judgment forthwith.
(b) In a summary suit up to the stage of grant of leave
there is a special procedure and therefore the concept of
'trial' as contemplated by Section 10 of the Code, in the
context of a summary suit, cannot be interpreted to mean
the entire proceedings starting with institution of the suit
by lodging a plaint. In a summary suit the 'trial' really
begins after the Court or the Judge grants leave to the
defendant to contest the suit. Therefore, the Court or the
Judge dealing with a summary suit can proceed up to the
stage of hearing the summons for judgment and passing
the judgment in favour of the plaintiff if (a) the
defendant has not applied for leave to defend or if such
application has been made and refused or if (b) the
defendant who is permitted to defend fails to comply with
the conditions on which leave to defend is granted.
........ ........ ........
22. Taking a conspectus of the provisions of Order
XXXVII of the Code and the decisions noticed herein
above, this Court is of the view that summary suits relate
to certain classes of suits, for which there is a special
procedure to be followed up to the stage of hearing the
summons for judgment. In summary suits, the defendant
is put to notice vide summons in Form 4 that the matter
would be tried as a summary suit and he must therefore
enter his appearance within a specified time otherwise
27
the plaintiff would be entitled to a decree. Not only that
he is also informed that the plaintiff will thereafter serve
upon him a summons for judgment at the hearing of
which he will be entitled to move the Court for leave to
defend the suit. He is also informed that the leave to
defend may be obtained if he satisfies the Court by
affidavit or otherwise that there is a defense to the suit
on the merits or that it is reasonable that he should be
allowed to defend. Thereafter, when the defendant enters
his appearance, he is served with a summons for
judgment in the prescribed form (Form 4-A) which
specifies that upon reading the affidavit of the plaintiff,
the Court requires all parties concerned to attend the
Court on a given date for hearing on the application of
the plaintiff to obtain judgment in the suit against the
defendant for a specified sum of money and for interest
and cost. Upon receipt of such summons, within a
specified period of time, the defendant has to apply for
leave to defend by filing an affidavit or otherwise
disclosing such facts as may be deemed sufficient to
entitle him to defend. Upon such prayer being made on
behalf of the defendant, the Court may grant leave to
defend unconditionally or upon such terms as may appear
to the Court or Judge to be just. If the defendant does not
apply for leave to defend, or if such application is
rejected, the plaintiff is entitled to judgment forthwith. It
is only when the leave to defend is granted
unconditionally or conditionally and the condition
prescribed is fulfilled, the trial of the suit commences and
the regular procedure as prescribed in the Code of Civil
Procedure becomes applicable. Therefore, the Court or
the Judge dealing with the summary suit, up to the stage
of hearing the summons for judgment, can proceed to
pass the judgment in favour of the plaintiff if (a) the
defendant has not applied for leave to defend or if such
application has been made and refused or if (b) the
defendant who is permitted to defend fails to comply with
the conditions on which leave to defend is granted. As, till
the stage of grant of leave, a special procedure has been
prescribed by the Code, the general provisions of the
Code as applicable in an ordinary suit are not applicable
to a summary suit up to that stage. The decisions which
have been relied by the learned counsel for the defendant-
28
revisionist so as to contend that the defendant cannot be
deprived of his right to cross-examine the plaintiffs' witnesses
even though he has not been given leave to defend, would not
apply in the case of a summary suit, up to the stage of hearing
the summons for judgment, having regard to the provisions of
Order XXXVII, Rules 1, 2 and 3 of the Code. However, once
leave to defend is granted, either unconditionally or
conditionally and the condition is fulfilled, the plaintiff would lose
his right to have a judgment forthwith, as contemplated by the
summons for judgment, and, in that event, the suit would
proceed as per the general provisions of the Code in view of
Rule 7 of Order XXXVII of the Code; and, in such an event, the
defendant would have right to cross examine the plaintiff's
witness, if examined, even if the suit proceeds ex parte or
without a defense as in an ordinary suit. But where the leave to
defend is either rejected or granted conditionally and the
condition is not fulfilled, the plaintiff is entitled to a judgment
forthwith and in such a situation, he can obtain a decree
forthwith as contemplated under Order XXXVII, Rule 3(6) of the
Code or it could be based on the affidavit evidence on the side
of the plaintiff and the documents produced or even based on
oral evidence formally proving the same as has been observed
by the Apex Court in the case of Ajay Bansal (supra). The
decisions relied upon by the learned counsel for the revisionist
are in the context of ordinary suits where no leave to defend is
required and, therefore, in an ordinary suit, even where the suit
proceeds ex parte or the defense is struck off, the defendant is
not precluded from cross examining plaintiff's witness, whereas
in a summary suit there is no inherent right to defend without
the leave of the Court or the Judge. Accordingly, the authorities
cited by the learned counsel for the revisionist are not of much
help to the revisionist."
(Emphasis Supplied)
The High Court of Allahabad in the afore-quoted judgment holds
that summary suits relate to certain classes of suits, for which there
is a special procedure to be followed upto the stage of hearing the
29
summons for judgment and in summary suits, the defendant is put
to notice vide summons in Form No.4 informing that the matter
would be tried as a summary suit and he must enter his appearance
within a specified time, failing which, the plaintiff would be entitled
to a decree. Following the judgment of the Apex Court in INDIAN
BANK supra as to when a trial would begin in a suit instituted
under Order XXXVII Rule 2 of the CPC, the Court holds that in a suit
instituted under Order XXXVII, trial begins only after the issuance
of leave to defend under Order XXXVII Rule 3(5) of the CPC.
Further, the Court holds that the object of providing a summary
procedure in certain classes of suits is to prevent unreasonable
obstruction by the defendant and is a step in ensuring early
disposal of commercial cases.
9.3 Long before the judgment of the High Court of
Allahabad, a coordinate bench of this Court in JATIN KHANNA v.
PREMA G. ULLAL,3 holds that the summary procedure
contemplated under Order XXXVII is mandatory in nature and when
once a plaintiff chooses to avail the summary procedure provided
3
1979 SCC OnLine Kar 70
30
by Order XXXVII of the CPC, the parties to the suit are required to
comply with that special procedure in respect of the matters
specially dealt in that order and they cannot avail of the ordinary
procedure in respect of those matters that are specifically provided
by the summary or special procedure of Order XXXVII. The
coordinate bench while interpreting the Order XXXVII and various
Rules under the said Order holds as follows:
"7. Any suit of a Civil nature instituted in a Civil Court can
be proceeded with or tried in an ordinary way as provided
under Order 5 of the Code of Civil Procedure. A Civil Court
can follow the procedure provided by Order 5 of the Code of
Civil Procedure in respect of any suit of a Civil nature. Order 5
of the Code of Civil Procedure does not make any distinction
or recognise any distinction or difference in the nature of a
claim made by the plaintiff in his suit. Order 37 of the Code of
Civil Procedure which provides for the summary procedure in
the disposal of suits, cannot be resorted to in respect of all
suits of a civil nature. Order 37 applies only to certain classes
of suits enumerated in sub-rule (2) of Rule (1) or Order 37.
Only (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 (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; can be instituted under Order 37 of the Code of
Civil Procedure. In other words, the plaintiff can avail the
remedy of a summary procedure provided by Order 37 only in
respect of the suits enumerated in sub-rule (2) and in no
other. A plaintiff's suit enumerated in respect of the class of
suits falling under sub-rule (2) of Rule (1) of Order 37 is also
31
a suit of civil nature and therefore it is open to such plaintiff
either to avail the summary procedure provided by Order 37
or avail the ordinary procedure provided by Order 5 of the
Code or Civil Procedure. A suit in which the plaintiff can avail
the summary procedure, can also avail the ordinary
procedure. But the converse is not permissible. As to which
remedy the plaintiff should chose is a matter for him to
decide.
8. The heading of Order 37 is summary procedure.
When a suit is instituted under Order 37, a court is
required to follow the summary procedure and decide
the suit in accordance with the provisions made in that
order. At least one of the objects of providing summary
procedure in respect of certain classes of suit is that
such classes of suits that are availed by a suitor should
be decided in conformity with the provisions made
therein with speed and despatch and not in an ordinary
and leisurely manner as it generally happens before a
civil court where a suit is instituted availing the
ordinary procedure. With this background it is useful to
analyse the broad requirements of order 5 and the
specific requirements of Order 37 of the Code of Civil
Procedure.
9. In a suit instituted in an ordinary manner regulated by
Order 5, a summons, a copy of the plaint is issued to a
defendant specifying a date of hearing (vide Rules 1 and 2).
Rule 3 empowers the court to enforce the appearance of the
defendant in person subject to the limitations placed by Rule
4. Rule 5 empowers the court to issue summons for the
settlement of issues or for a final disposal of the suit. Proviso
to Rule 5 applies to suits of cognizable by a court of small
Causes which directs that summons must be issued only for
the final disposal. Rule 6 requires the court to fix a day giving
sufficient time to the defendant to appear and answer the
claim made by a plaintiff. Rules 9 to 30 deal with service of
summons. In a suit instituted in an ordinary manner, a
defendant as of right can file his written statement and
contest the claim made by a plaintiff (vide Rule 1 of Order 8
C.P.C.) and that right being absolute cannot be curtailed by
the court except in the matter of granting time to file the
written statement. After filing his written statement, the
32
defendant has also the right to contest the claim agreeably
with his defence. In a suit in which the ordinary procedure is
availed by a plaintiff, almost as a rule, the suit is not decided
on the first date of hearing and reasonable time is given to
the defendant to file his written statement and contest the
claim if he so choses. In a suit in which the plaintiff has
chosen to avail or has availed the summary procedure,
that is not the position. Among other requirements,
sub-rule (1) of Rule (2) of order 37 requires a plaint to
contain (a) a specific averment to the effect that the
suit is filed under Order 37: (b) that no relief, which
does not fall within the ambit of Rule 2, has been
claimed in the plaint; and (c) that immediately below
the number of the suit in the title of the suit an
inscription to the effect 'Under Order XXXVII of the
Code of Civil Procedure, 1908'. Sub-rule (2) of Rule 2 of
Order 37 directs that the summons of the suit to the
defendant shall be in Form No. 4 in Appendix B or in
such other Form as may be prescribed from time to
time. An examination of the Form of summons to be
issued to the defendant in a suit instituted under Order
37 shows that the court while briefly referring to the
suit claim instituted by the plaintiff, summons him to
cause appearance to be entered for him within 10 days
from the service of the summons and if such
appearance is entered, states that the plaintiff will
serve on him a summons for judgment at the hearing of
which he may be entitled to move the court for leave to
defend that suit. The penultimate para of the summons
state that leave to defend will be granted if the
defendant were to satisfy by an affidavit or otherwise
that there is a defence to the suit on merits or that it is
reasonable that he should be allowed to defend that
suit. The summons issued is required to be sealed and
signed by the Judge of the court in which the suit is
instituted.
10. The summons prescribed incorporates the
requirements of Rule 3 of Order 37. First part of sub-
rule (1) of Rule 3 requires the plaintiff to serve the
summons and a copy of the plaint and enclosures
thereto on the defendants. According to this provision
the plaintiff is required to prepare the summons in the
33
prescribed form, fill in all the necessary details thereto
and produce the same to the court, to enable the office
to specify the date of hearing in such summons, affix
the seal of the court and then have the signature of the
Judge and return the same to the plaintiff to enable
him to annex the copy of the plaintiff and other
enclosures for taking steps to serve such summons on
the defendant. According to the second part of the
same rule, the defendant has to enter appearance
before court either in person or by a counsel within 10
days of service of lummons on him. The last part of the
same rule requires him to file in court his address for
service of notices on him. An examination of the other
sub-rules of Rule 3 shows that in complying with the
requirement of sub-rule (1) the parties have no choice.
When once the defendant has been served with
summons, has entered appearance and has filed his
address in court, sub-rule (2) provides for service of
further summons, notices and other judicial processes
on him if they are left at the address given by him for
such service if it is found that they cannot be served on
him personally. Sub-rule (3) requires the defendant on
the day he enters appearance in court to give notice of
his appearance to the counsel appearing for the
plaintiff if he is represented by a counsel or to the
plaintiff himself if he is not represented by a counsel by
personally serving such notice or sending by a pre-paid
letter directed to the address of the plaintiff's pleader
or to the plaintiff as the case may be. When the
defendant enters appearance, gives notice of such
appearance under Sub-rule (4), the plaintiff has to
serve on such defendant a summons for judgment in
Form No. 4A in Appendix B or such other form as may
be prescribed from time to time returnable not less
than 10 days from the date of service supported by an
affidavit verifying the cause of action and the amount
claimed and stating that in his belief there is no
defence to the suit filed by him. On service of such
summons for judgment, under sub-rule (5) it is open to
the defendant at any time within 10 days from service
of such summons for judgment to apply to the court for
leave to defend or permission to defend such suit by
disclosing the facts on affidavit or otherwise that are
34
necessary to grant such leave by the court. When the
defendant seeks for such leave it is open to the court to
examine such request and grant leave in its judicial
discretion either unconditionally or upon such terms as
may appear to be just in the circumstances of that
case. The power to grant leave to defend, comprehends
in itself the power to refuse the leaves sought by the
defendant to defend the suit. The defendant has no
right to contest the suit when suit is instituted under
the summary or special procedure under Order 37,
while he has an absolute right to contest the same
when the suit is filed under the ordinary procedure viz.,
Order 5 of the Code of Civil Procedure. First proviso to
sub-rule (5) empowers the court to refuse leave to
defend the suit if the cause shown by the defendant
does not disclose a substantial defence to urge or the
defence intended to be put up by him is frivolous or
vexatious. Second proviso to sub-rule (5) directs the
court not to grant leave if the defendant has admitted
any part of the plaintiff's claim without the defendant
depositing the admitted amount of the claim in court.
Sub-rule (6) regulates the procedure to be adopted by
the court when dealing with a summons for judgment
filed by the plaintiff under sub-rule (4) of Rule 3.
Clause (a) of sub-rule (6) requires the court to
forthwith enter a judgment in favour of the plaintiff if
the defendant has not applied for leave to defend under
sub-rule (5) or if the application made by him is
refused by the court. Clause (b) of sub-rule (6)
regulates the procedure to be adopted when leave to
defend is granted to a defendant. Under this rule, it is
open to the court to direct the defendant to give
security for the disputed part of the claim within a
particular time. In the event of the failure of the
defendant to furnish security within the time permitted
by the court and fulfil any other conditions imposed
thereto, the plaintiff becomes entitled to a judgment in
his favour for the disputed claim. Sub-rule (7) enables
the court to excuse the delay, if any, caused by the
defendant in entering appearance or in applying for
leave to defend the suit. Even here, the defendant has
no right to claim that the delay in entering appearance
or in applying for leave to defend should be excused or
35
condoned. But that does-not necessarily mean that the
court can arbitrarily refuse an application. Any
application made by the defendant under sub-rule (7)
has to be considered judiciously by the court. Rule 4
empowers the court to set aside the decree made by it
under Rule 3 of the Rules. Rule 5 empowers the court
to order the deposit of the bill, hundi or note on which
the suit is founded with an officer of the court and
direct the plaintiff to give security for costs and stay
the suit till such security is given by the plaintiff. Rule 7
directs that except in matters specifically dealt by
Rules 1 to 6 of Order 37, the procedure to be adopted
in the trial and disposal of the suits shall be the same
as shall be followed in suits instituted in the ordinary
manner. In respect of matters that are specifically
dealt by Order 37, the court is required to apply only
the special procedure provided in the various
provisions already noticed and cannot apply the
provisions that are applied when a suit is instituted in
the ordinary procedure. This in brief is the scheme of
Order 37 which provide for a summary or special
procedure in respect of certain class of suits which can
be availed by a plaintiff if he so choses and not
otherwise. But when once a plaintiff choses to avail the
summary or special procedure provided by Order 37,
the parties to the suit viz., the plaintiff and the
defendant are required to comply with that special
procedure in respect of the matters specially dealt in
that order and they cannot avail of the ordinary
procedure in respect of those matters that are
specifically provided by the summary or special
procedure of Order 37.
11. Earlier, I have noticed that in the suit filed by her
before court the one and the only requirement that has been
complied in her suit is the requirement of clause (a) of sub-
rule (1) of Rule 2 of Order 37 viz., that there is a specific
averment to the effect that the suit is filed under Order 37 of
the Code of Civil Procedure and that except for this the
plaintiff and the court have not followed the requirements or
provisions enumerated in the summary or special procedure
contemplated by Order 37 of the Code of Civil Procedure. At
all stages, the plaintiff and the court have proceeded with the
36
suit as if it is a suit instituted under the ordinary procedure
and have dealt with the same on that basis. In these
circumstances, the question that arises for determination is
whether the summons filed by the plaintiff for judgment was
in order and the direction issued by the learned Civil Judge to
file a fresh summons for judgment retrunable by 2nd January
1979 can be sustained. Even according to the learned Civil
Judge, the summons filed by the respondent for judgment is
not in order and therefore the only question that arises for my
determination is whether the learned Civil Judge was justified
in directing respondent to file a fresh summons for judgment
returnable by 2nd January 1979 which necessarily means that
the suit filed by her should be tried under the summary or
special procedure provided by Order 37 of the Code of Civil
Procedure and this question depends whether all or any of the
provisions made under Order 37 are mandatory or directory.
Sri Shivaprakash contended that the special provisions made
under Order 37 are mandatory and therefore a suitor and the
court have no choice in dis-obeying any of the mandatory
requirements of the provisions made in that order. In support
of his contention Sri Shivaprakash strongly relied on the
ruling of the Supreme Court in Bhikraj Jaipuria v. Union of
India [AIR 1962 S.C. 113.] (Lala) Gopaldas v. (Lala) Chander
Prakash [AIR 1966 J & K 138.] . Sri Ullal refuted the
contention of Sri Shivaprakash and urged that the provisions
made under Order 37 are not mandatory and are only
directory. In support of his contention Sri Ullal strongly relied
on the ruling of the Supreme Court in Narayan Rao v. State of
Andhra Pradesh [AIR 1957 S.C. 737.] and several other
rulings in which it had occasion to explain the distinction and
difference between mandatory and directory provisions and
the principles that should be applied in ascertaining whether a
provision is mandatory or directory.
12. As observed by Lord Campbell in Liverpool Borough
Bank v. Turner [(1860) 30 L.J. Ch. 379.] quoted with
approval by the Supreme Court in Bhikraj's case--'No
universal rule can be laid down as to whether mandatory
enactments shall be considered directory only or obligatory
with an implied nullification for disobedience. It is the duty of
Courts of Justice to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the
statute to be construed.' (vide para 17 page 119). 'The
37
question as to whether a statute is mandatory or directory
depends upon the intent of the Legislature and not upon the
language in which the intent is clothed. The meaning and
intention of the Legislature must govern, and these are to be
ascertained, not only from the phraseology of the provision,
but also by considering its nature, its design, and the
consequences which would follow from construing it the one
way or the other ................' (vide para 11 of A.I.R. 1957 S.C.
912 at 918).
Another principle that is equally well settled is statutes
that confer and regulate new rights, privileges, immunities
and remedies should generally be construed as mandatory as
they are inderogation of the common law or of common right
(vide para 265 page 527, the Construction of statutes by
Crawford, 1940). It is in this background, I have to ascertain
whether the provisions made under Order 37 are mandatory
or directory.
13. Suits under Order 37 can be instituted only
before certain courts in respect of certain class of suits
(vide Rule 1 of Order 37). Sub-rule (1) of Rule 2 directs
that the suit to be instituted shall contain the
particulars specified in that sub-rule. Whenever the
Legislature uses the word 'shall' the ordinary
presumption is that that provision is mandatory unless
the context or otherwise justifies that it should be
construed as directory (vide Sainik Motors, Jodhpur v.
State of Rajasthan [AIR 1961 S.C. 1480.] . Sub-rule (2)
of Rule 2 of Order 37 which requires that a summons to
be in a particular form also uses the word 'shall'. Sub-
rule (3) in emphatic and negative terms directs that the
defandant shall not be entitled to defend the suit
unless he enters an appearance in accordance with the
provisions made in the following rule viz., Rule 3 of the
Rules. Almost every sub-rule of Rule 3 also uses the
word 'shall'. The procedure provided in Order 37 is a
special procedure and is in derogation of the ordinary
procedure. An examination of the several provisions
contained in Order 37 would show that it confers
certain special rights, privileges, obligations and
remedies on both the parties to a suit. Rule 7 expressly
declares that in matters expressly provided in the
38
provisions made under Order 37, the ordinary
procedure will not be applicable. Every special step or
procedure by Order 37 which is in derogation of the
ordinary procedure is required to be complied by a
party in the manner and time provided by those
provisions with meticulous care and caution if he wants
to avail the rights and benefits of those provisions. On
these considerations, the one and the only inescapable
conclusion that can be drawn is that the summary
procedure or special provisions made under Order 37
are mandatory in nature and are not directory, as
contended by Sri Ullal. In Gopal Das's case, a Division
Bench of the Jammu and Kashmir High Court speaking
through S. Murtaza Fazl Ali, J., as he then was, has also taken
a similar view. I am in respectful agreement with the view
expressed in that case. As Sri Ullal laid great emphasis on the
ruling of the Supreme Court in Narayana Rao's case to hold to
the contrary, it is proper to examin whether the ratio in that
case supports Sri Ullal. In Narayan Rao's case the question
arose on the failure to furnish copies of documents that were
required to be furnished to an accused person under 173(4)
of the Code of Criminal Procedure before a Magistrate
commits such person to a Sessions court for trial. The
Supreme Court examined the question on the footing that
those documents had not been furnished to the accused
persons and found that such failure had not occassioned any
failure of justice. In reaching that conclusion the Supreme
Court considered the intendment and the effect of Section
537 of the Code of Criminal Procedure and gave effect to the
same. In my opinion, the ratio in Narayan Rao's case has
therefore no application in construing whether the provisions
of Order 37 are mandatory or directory."
(Emphasis Supplied)
9.4 While discussing the difference between the summons
issued in Form No. 1 under Order V Rule 1 and the summons issued
in Form No. 4 under Order XXXVII Rule 2 of the CPC the High Court
39
of Andhra Pradesh in the case of VASUDEV CHENOY v. T. JAGAN
MOHAN,4 holds as follows:
"5. The difference between the summons sent in
Form No. 1 under Order 5, rule 1 and the summons sent
in Form No. 4 under Order 37 lies in the fact that while
the summons sent under Order 5 merely summons the
defendant to appear in Court in person or by pleader on a
particular date and to take part in the trial, the summons
sent in Form No. 4 under Order 37 specifically cautions
the defendant that the right of the defendant to contest
the suit would be forfeited to him unless he performs and
fulfills certain conditions. It says that the plaintiff would
be entitled to obtain a decree without any trial in a
summary procedure unless the defendant enters his
appearance within ten days from the date of service of
summons and also obtains leave of the Court to defend
the suit by showing sufficient cause. In other words in a
summary procedure the right of the defendant to contest
the plaintiffs suit is conditional and not absolute as in
ordinary run of suits. Now, it appears from the record that the
Court in this case committed an error by sending the wrong
summons in Form No. 1 to the defendant instead of Form No. 4.
The mistake committed by the Court was subsequently noticed
and a second set of summons in Form No. 4 appropriate for
Order 37 were sent on 27th December, 1980 and were served
on the defendant on 27th December, 1980. The defendent filed
his vakalat on 31st December, 1980. This was clearly within ten
days time allowed by Form No. 4. But on the ground that no
notice of the defendant's appearance was given to the plaintiff
or his Counsel as required by rule 3(3) of Order 37, Civil
Procedure Code, the defendant's right to contest the suit was
forfeited by the Court and accordingly, the suit was decreed
without any trial The learned Additional Chief Judge, City Small
Causes Court in holding that the defendant was not entitled to
defend the suit, observed that the vakalat was filed after the
expiry of ten days obviously counting the time from the date of
4
1981 SCC OnLine AP 274
40
service of the first set of summons. The suit was decreed on
that basis."
(Emphasis Supplied)
9.5 The High Court of Delhi in KHERA HANDLOOM
SUPPLY v. O.B. EXPORTS,5 holds that the procedure contained
under Order XXXVII Rule 2 of the CPC, for institution of suits is
mandatory in nature and the said provision being procedural in
nature, the requirement of the same would be satisfied if there has
been substantial compliance with the same. It holds as follows:
"10. The plain reading of Order, 37 rule 2 shows that the
Legislature was particular as to what should be contained in a
plaint filed under Order, 37. Prior to the amendment in 1976,
Order 37 did not provide or refer to the form of the plaint. This
provision has been inserted only with the amendment. The
Legislature has advisedly used two words in Order, 37 rule 2(a),
namely, "may" and "shall". When two such words namely,
"may" which indicates that there is a discretion which is given,
and "shall" are used, then the rules of construction are that
these two words should be given their ordinary meaning. 'May'
has to be understood as 'may' and 'shall' has to be understood
as shall. Prima facie, therefore, it would appear that the
provisions of Order, 37 rule 2 are mandatory in nature
and have to be complied with.
11. It is true that unlike some of the other provision of Order,
37 which cast a duty on the defendants to take a particular
course of action on summons being served and which also
provide for the consequences on the failure of the defendant to
take such course of action, the said Order, 37 rule 2 does not
specifically provide for any specific consequences to follow in the
event of the plaintiff not complying with the provisions of Order,
5
1989 SCC OnLine Del 155
41
37 rule 2. Nevertheless, in our opinion, non-compliance with
Order, 37 rule 2 would result in certain specific consequences.
The consequence of non-observance of Order, 37 rule 2
would, in our mind, be that the said will have to be
regarded as an ordinary civil suit and not one which is
filed under Order, 37. Non-observance or non-compliance
with the provisions of Order, 37 rule 2 would not result in
the suit being dismissed but must result in the Court
regarding the suit as having been filed not under the said
provisions of Order, 37 but as an ordinary suit. To this
extent, therefore, the contention of the learned counsel for the
defendants is correct, namely, that Order, 37 rule 2 is a
mandatory provision which has to be compiled with.
12. Even though the provisions of Order, 37 rule 2 are
mandatory the same have to be interpreted in such a way so
that the Legislative intent is given effect to.
13. The normal procedure as provided in the Code of Civil
Procedure is that a defendant has a right to defend and file the
written statement whenever a suit is filed. Order 37 is a special
procedure which is meant to provide speedy trial and remedy in
specific cases. Order 37 has been inserted with a view to
assist the plaintiff. When a suit is filed under Order, 37,
summons are required to be issued in the prescribed from
and thereafter the defendant, if it wants to contest, has
to enter appearance within 10 days thereof. After
appearance is entered, the plaintiff files summons for
judgment which are served on the defendant and the
defendant thereupon is required to apply for leave to
defend under Order, 37 rule 5.
14. It will be seen from the above that when a suit is filed
under order, 37, the defendant is under a disadvantage.
He is obliged to enter appearance within 10 days failing
which the suit may be decreed. Because of the fact that
the right of the defendant to enter appearance and file
written statement is restricted, the Legislature thought
that adequate provision should be made so that when the
plaint is received by the defendant, he is put to notice
that a suit has been filed under the special provisions of
Order, 37 and that the normal procedure as provided by
the Code of Civil Procedure would not be applicable. It is
42
for this reason that in Order, 37 rule 2 has been provided
that the plaintiff must state three thing, namely, that
there should be a specific averment that the suit is filed
under Order, 37 and that no relief which does not fall
within the ambit of that rule has been claimed and,
furthermore, in the title of the suit has to be stated that
the suit is under Order, 37 of the Code of Civil Procedure,
1908. If all these three things are stated then the
defendant will not be heard to say that he was not aware
of the special requirement of Order, 37 because he might
have thought that the suit was filed in normal course and
not under the special provisions of Order, 37.
15. The provisions of Order, 37 rule 2 being procedural in
nature, in our opinion, the requirement of the said
provision would be satisfied if there has been substantial
compliance with the same. In other words, the plaint
must show that there has been compliance with the
provisions of Order, 37 rule 2(1)(a), (b) and (c). For
example, though sub-rule (b) of rule 2(1) of Order, 37 is
couched in negative terms, in our opinion there would be
substantial compliance with this provision if an averment
to this effect is made in positive term by the plaintiff in
the plaint. In the instant case, in paragraph 3 of the plaint it
has been stated by the plaintiff that "the suit is based on the
cheque, which has been issued by the defendants in favour of
plaintiff which on presentation, was returned with the remark
"REFER TO DRAWER". The relief prayed in this suit falls within
the ambit of Order, 37 Rule 2 CPC." This, is our opinion, fulfils
the requirement of Order, 37 rule 2(1)(b) even though it is
stated in a manner differently than what has been indicated in
the said rule."
(Emphasis Supplied)
43
9.6 The High Court of Jammu and Kashmir in the case of
RAJESH MADANLAL ANAND v. RAKESH MADANLAL ANAND,6
holds as follows:
"5. The suit was presented before the trial Court who
without proceedings further in the suit in terms of the
provisions of Order 37 CPC considered the averments
made in the plaint and came to the conclusion that the
suit involved triable issues and raised certain complicated
questions of fact and therefore, the same was not liable
to be treated as a suit under Order 37 CPC. It was also
noted by the trial Court that the cheque in question on
the basis of which the suit has been filed was issued by
the mother of the petitioner as the share of the plaintiff
in the dividend and there was no document appended
with the plaint to suggest that the said amount of cheque
had actually passed on to the respondents to make them
liable in accordance with the provisions of Order 37 CPC.
On these grounds, the trial Court refused to try the suit
under Order 37 CPC and instead treated the same as a
regular suit.
...... ...... ......
8. Having heard the petitioner in person and learned counsel
for the respondents and perused the record, it would be
necessary to first appreciate the ambit and scope of Order 37
CPC. The Order 37 CPC provides for summary procedure
in respect of certain suits. The essence of the summary
suit is that the defendant is not, as in ordinarily suit,
entitled as of right to defend the suit. The defendant is
required to apply for leave within ten days from the date
of service upon him and such leave will be granted by the
Court only if the affidavit filed by the defendant discloses
such facts as the Court may deem sufficient for granting
the leave to the defendant to appear and defend the suit.
It is further provided that if the Court declines to grant
leave to the defendant, the plaintiff becomes entitled to a
decree straightway. It is not that all types of suit can be
tried summarily by having resort to Order 37 CPC. The
6
2018 SCC OnLine J&K 572
44
Order 37 Rule (1) Sub Rule (2) CPC classifies suits which
can be tried by the summary proceedings laid down in the
Order 37 CPC. Indisputably, the suits upon bills of
exchange, hundies an promissory notes fall within the
ambit of Order 37 CPC. It is also not in dispute that the
cheque is a "bill of exchange" as defined in the
Negotiable Instruments Act. No suit on the basis of
cheque under Order 37 CPC would lie unless the cheque
has been presented to the banker and has been bounced
for one or the other reason and the amount represented
by cheque remains unpaid.
9. Admittedly, the suit filed by the petitioner is based on the
cheque issued by late Smt. Swaraj Madanlal Anand which has
not been honoured by the banker of the petitioner. It is also
admitted position that the cheque was presented during the life
time of late Swaraj Madanlal Anand. On refusal on the part of
the banker of late Smt. Swaraj Madanlal Anand to honour the
cheque, the petitioner after following the procedure filed a
complaint under Section 138 of the Negotiable Instruments Act
against late Smt. Swaraj Madanlal Anand. It is, however, a
different matter that during the pendency of the complaint, Smt.
Swaraj Madanlal Anand died and criminal complaint was closed
by the concerned Magistrate. Obviously, the Magistrate, could
not have proceeded in the complaint against the legal
representatives, who might have inherited the estate. In these
circumstances, the plaintiff having been left with no option filed
a suit claiming recovery of the cheque amount. As is seen from
the plaint, apart from the recovery of the amount represented
by dishonour of cheque, the petitioner has also made a claim for
further amount which of course, cannot be made subject matter
of summary trial in the suit. Be that as it may, it is a specific
case of the petitioner that after the death of his mother Smt.
Swaraj Madanlal Anand, all his liquid assets came to be
inherited by the respondents to his exclusion. I find specific
averments made in the plaint in this regard. It is on this
assertion made by the petitioner, the suit was filed
against the respondents by having resort to Order 37
CPC. The trial Court summarily declined to entertain the
suit as one under Order 37 CPC and treated the same as a
regular suit. This course was not open to the trial Court. A
bare reading of the plaint would disclose that the suit
45
was filed on the basis of cheque, which is indisputably a
"bill of exchange" and therefore, maintainable under
Order 37 Rule 1 Sub Rule 2 CPC. The trial Court should
have entertained the suit and followed the procedure laid
down in the Order 37 CPC. Reference in this regard is
invited to Rule 2 of Order 37 CPC which specifically
provides that if the suit is one falling under Rule 1(2) and
the plaint complies the requirements enumerated in Rule
2, the trial Court is bound to proceed and issue summon
in the Form No. 4 given in Appendix B or any such Form
as may, from time to time, be prescribed. This, however,
does not mean that the trial Court cannot have
preliminary scrutiny of the plaint to find out as to
whether the suit is one falling under Order 37 CPC but
such inquiry has to be limited. The trial Court at the stage
of entertaining the suit cannot look to the merits of
dispute involved and the probable defences that would be
taken by the defendants and come to the conclusion that
the suit involves complicated disputed questions of fact
and triable issues. The trial Court cannot return such
finding unless notice is served upon the defendants and
his version comes on record in the shape of an
application seeking leave to defend. As is appropriately
provided in Rule 3 that the defendant, if within ten days
from the date of service of summons for judgment, by
affidavit or otherwise discloses such facts as the Court
deems sufficient to entitle him to defend, the Court may
grant him leave to defend either unconditionally or upon
such term as may appear to the Court to be just. It is
perhaps at this stage, the Court would try the suit in the
same manner as is done in suits instituted in the
ordinarily manner. As rightly submitted by the petitioner
appearing in person, the trial Court jumped the gun and
erroneously treated the suit as a regular suit.
10. I have carefully gone through the provisions of
Order 37 CPC and find that nowhere in the order, a power
is conceded in favour of the trial Court to refuse to treat
the suit based on cheque and otherwise complying with
the provisions of Order 37 CPC Rule 2 as summary suit
triable under Order 37 CPC and treat the same as a
regular suit. In my considered opinion, learned trial Court
46
has exercised the jurisdiction not vested in it and has
consequently caused serious mis-carriage of justice. The
right of the plaintiff to have his suit tried in summary
manner is a vital right conferred under Order 37 CPC and
said right cannot be trampled by overstepping the
jurisdiction and taking the view which is not
countenanced in law. This Court, thus, finds it a fit case for
exercising the supervisory jurisdiction vested under Section 104
of the Constitution of J&K.
........ ........ ........
17. From the conspectus of the judicial opinion on the issue,
the following conclusion are deductible:--
(i) That a summary suit is maintainable and can be filed
against the legal heirs/representatives of a deceased
defendant and a decree which may be ultimately passed,
however, can be executed only to the extent of the
estate of the deceased in the hands of judgment debtor;
(ii) That in a suit filed on the basis of a dishonoured cheque,
if the cheque is presented and dishonoured during life
time of the drawer and the drawer is intimated the
aforesaid facts, the summary suit under Order 37 CPC
would lie against his/her legal heirs/representatives who
have succeeded to his/her estate and the liquid assets, if
deceased by that time has expired;
(iii) That once a suit is filed, which is covered by the
Order 37 Rule 1 Sub Rule 2 and complies with the
requirement as laid down in the Order 37 Rule (2),
the trial Court shall not examine the merits of the
controversy, but would proceed to issue summons
to the defendants in the prescribed Form.
(iv) That it is only when leave to defend is granted to
the defendants, the defendant would be permitted
to file written statement and suit would be tried in
the manner an ordinarily suit is tried under the
Code of Civil Procedure.
18. In view of the aforesaid stated position of law and the
facts and circumstances of the case, I am of the considered view
that order impugned passed by the trial Court is against all
cannons of law and the trial Court not only exceeded his
jurisdiction but exercised the one not vested in it and thereby
caused serious miscarriage of justice. Accordingly, I allow this
petition and set aside the order impugned in exercise of
supervisory jurisdiction vested in the Court under Section 104 of
47
the Constitution of Jammu and Kashmir. The trial Court shall
proceed in the suit in the manner prescribed under Order 37
CPC. The parties to appear before the trial Court on 24.09.2018.
(Emphasis Supplied)
The High Court of Jammu and Kashmir in the afore-quoted
judgment holds that once a suit which is covered by Order XXXVII
Rule 1(2) of the CPC is filed and it complies with the requirement as
laid down in Order XXXVII Rule 2 of the CPC, the trial Court shall
not examine the merits of the controversy, but would proceed to
issue summons to the defendants in the prescribed Form i.e., Form
No.4. However, the trial Court can have a preliminary scrutiny of
the plaint to find out as to whether the suit is one falling under
Order XXXVII of the CPC but such inquiry has to be limited. The
trial Court at the stage of entertaining the suit cannot look into the
merits of the dispute involved and the probable defences that can
be taken by the defendants and come to the conclusion that the
suit involves complicated disputed questions of fact and triable
issues. The trial Court cannot return such a finding unless notice is
served upon the defendants and his version comes on record in the
shape of an application seeking leave to defend i.e., an application
under Order XXXVII Rule 3(5) of the CPC.
48
9.7 The High Court of Delhi in the case of SATYA PRAKASH
& BROS (P) LTD. v. QUTAB REALCON (P) LTD.,7 holds that
Order XXXVII Rule 2(1)(b) of the CPC requires the plaintiff to
expressly state that no relief, other than that falling within the
ambit of Order XXXVII of the CPC, has been claimed. A suit under
Order XXXVII of the CPC is maintainable only if a claim within the
ambit of Order XXXVII is made thereunder and the maintainability
of the suit under Order XXXVII of the CPC has to be decided at the
threshold. It holds as follows:
"6. A suit under Order XXXVII of the CPC is
maintainable only if a claim within the ambit of Order
XXXVII is made thereunder.
7. The plaintiffs having claimed reliefs in the suit against
persons other than those privy to documents on the basis of
which suit under Order XXXVII of the CPC has been filed,
notwithstanding the suit having been entertained without
noticing the said aspect by the learned Joint Registrar, the suit
cannot be permitted to be treated as under Order XXXVII of the
CPC.
8. The contention of the senior counsel for the plaintiffs at
this stage that the plaintiffs are willing to drop defendants no. 3
to 5 is of no avail.
9. The maintainability of the suit under Order XXXVII
of the CPC has to be decided at the threshold. In fact,
7
2019 SCC OnLine Del 10400
49
Order XXXVII Rule 2(b) requires the plaintiffs to
expressly state that no relief, other than that falling
within the ambit of Order XXXVII of the CPC, has been
claimed.
10. The senior counsel for the plaintiffs has argued that only
a plea to the said effect is to be made.
11. The fact that a plea is required to be made, shows
that the plaintiffs cannot make a claim besides that
within the ambit of Order XXXVII of the CPC and the
moment the plaintiffs make such a claim, the plaintiffs
ought to have been ousted on the very first day from
proceeding under Order XXXVII of the CPC and the mere
fact that the learned Joint Registrar entertained the suit
will not come in the way of this Court now correcting the
mistake.
12. The suit having been found to be not maintainable under
Order XXXVII of the CPC, these applications are infructuous."
(Emphasis Supplied)
9.8 In a later case, the High Court of Gujarat in the case of
MENA VRAJESH DHANAK v. NAYANABEN DINESHBHAI
DOSHI,8 while relying on an earlier judgment of the High Court of
Kerala holds that the dispute as to whether the case should be tried
as summary suit or as an ordinary suit can be adjudicated only
after issuing summons. The rejection of the plaint without even
8
2021 SCC OnLine Guj 3251
50
numbering is totally illegal and the trial Court has a statutory duty
to number the plaint and issue summons under Order XXXVII Rules
2 and 3 of the CPC if the plaint is in order. Order VII Rule 11(d)
applies only where the suit appears from the statement in the plaint
to be barred by any law. It holds as follows:
"7. Perusal of the facts on hand would indicate that it is
the case of the respondent - original plaintiff that he is entitled
to recover a sum of Rs. 7,00,000/- which he advanced to the
applicant - original defendant on an oral contract. According to
the applicant, the suit is not maintainable because if it is an
oral contract, the procedure under Order 37 of the Code cannot
be followed. At best therefore, the case of the applicant was
that the suit instituted by the respondent - original plaintiff was
a suit which should not be tried as a summary suit. In essence
therefore the grievance of the applicant - defendant in an
application under Exh.13 was that the suit could not be tried in
a summary nature but it could have been tried as a long cause
suit. Reading the application under O. 7-R.11 would indicate
that the case of the defendant was that the recovery of money
on the basis of Cheque was according to the applicant by way
of an oral contract, so at best, as held by the Kerala High Court
in the case of Aravindakshan (Supra), there was no bar to the
filing of the suit. The dispute was as to whether it was tried as
a summary suit or which could be tried as an ordinary suit.
Such an issue can only be adjudicated after an application for
leave to defend was filed. It would be worthwhile to reproduce
para 22 of Aravindakshan (Supra) which reads as under:
"22. The rejection of the plaint by the Munsiff
under O. VII R. 11(d) of CPC is. n our opinion,
wholly without jurisdiction. As held by the apex
Court, the grounds must be such as to fall within
the categories specified in order VII R. 11.0.VH R.
11(d) applies only where the suit appears from the
statement in the plaint to be barred by any law.
There is no bar to the filing of the suit. The dispute
is as to whether it shook! be tried as summary suit
51
or ordinary suit, which can as well be adjudicated
later A la-issuing summons. The rejection of the
plaint without even numbering is totally illegal. The
learned Munsiff, in the facts and circumstances of
this case, acted illegally and with material
irregularity in not numbering the plaint and issuing
summons under O. XXXVII and in rejecting the
plaint under O. VII R. 11(d) of the Code of Civil
Procedure. If fee order of the learned Munsiff is
allowed to stand, certainly it would occasion failure
of justice and denial of benefits conferred on the
people of this country by the Parliamentary
legislation. The learned Munsiff had a statutory
duty to number the plaint and issue summons
under O. XXXVII Rr. 2 and 3 of the Code of Civil
Procedure if the plaint is otherwise in order."
........ ........ ........
9. Perusal of the decisions relied upon by Mr. Hemal
Shah, learned counsel of the applicant especially in the case of
the Gujarat High Court in Special Civil Application No. 7838 of
2012 and other decisions is that what was under challenge in
those proceedings, was the issue whether the suit at all could
have been tried as a summary procedure. What the learned
counsel for the applicant therefore misses to suggest is that it
cannot be a case where powers under O. 7-R.11 could have
been invoked to assail the procedure of trial of the suit that
was an issue or a dispute that could be decided subsequent to
the leave to defend application filed by him. What was
disputed by him was the jurisdiction of the summary
procedure and it would not fall within the parameters of
the objections envisaged under O. 7-R.11 of the Code."
(Emphasis Supplied)
9.9 The High Court of Bombay, sitting at Nagpur bench in
the case of SHUBANGI AND ORS. v. PRAKASH,9 holds that the
absence of a specific averment regarding what has been stated in
9
WP 3352 of 2023, Dated 21.12.2023
52
Order XXXVII Rule 2(1)(b) of the CPC, has to be considered in the
context of the position that the plaint has to be read as a whole, in
order to ascertain the compliance with the requirement of law. The
classes of suits as enumerated in clauses (a) and (b) of Order
XXXVII Rule 1(2) of the CPC would be those in respect of which
summary jurisdiction can be exercised and Order XXXVII Rule 1(1)
of the CPC, is a substantive provision, which creates the jurisdiction
right, and Order XXXVII Rule 1(2) of the CPC lays down the
parameters for exercise of such jurisdiction. Order XXXVII Rule 2 of
the CPC is only a rule of pleading, which would stand satisfied, if
substantial compliance with the same is pointed out. It holds as
follows:
"11. Jatin Khanna alias Rajesh Khanna (supra) holds that
in respect of matters that are specifically dealt by Order
37 of CPC, the Court is required to apply only the special
procedure provided in the various provisions contained in
the said Order and cannot apply the provisions that are
applied. When a suit is instituted in the ordinary
procedure when one chooses to avail the summary or
special procedure provided by Order 37 of CPC, the
parties to the suit, viz., the plaintiff and the defendant
are required to comply with that special procedure in
respect of the matters specially dealt in that order and
they cannot avail of the ordinary procedure in respect of
those matters that are specifically provided by the
summary or special procedure of Order 37 of CPC. What
is necessary to note is that Jatin Khanna alias Rajesh
53
Khanna (supra) was a case in which what fell for
consideration was the contention that the summons of
the suit had not been served on the defendant in Form
No. 4 of Appendix B and (ii) that the copies of the plaint
and the enclosures had not been served on the
defendants and they were received by their counsel on
8th November 1978 and therefore the suit cannot be
proceeded with and tried under Order 37 of CPC. Though
it has been held that the provisions of Order 37 of CPC
were mandatory in as much as they prescribed a special
procedure for summary suits, different that the one for a
regular suit, the position has been stated in a generalised
way. The specific plea regarding Order 37 Rule 2(b) of CPC did
not fall for consideration there.
12. Mafatlal Finance Limited (supra) relies upon Randerian
& Sing Pvt. Ltd. Vs. Indian Overseas Bank, in Appeal No.
1060/1986 in Summons for Judgment No. 307/1986 in
Summary Suit No. 3212/1989 dated 24.02.1987 and the
Judgment of another Division Bench of the Court in Hydraulic
and General Engineering Ltd. Vs. UCO Bank, (1998) I LJ
793, which have been overruled.
13. Raghunath Rai Bareja and Another (supra) has been
relied upon by Mr. Maheshwari, learned counsel for the
petitioners, to contend that the provisions of Order 37 of CPC
have to be interpreted literally as there is no ambiguity in the
provisions. In Raghunath Rai Bareja and Another (supra), it
has been held that the literal rule of interpretation really means
that there should be no interpretation, in other words, one
should read the statute as it is, without distorting or twisting its
language.
14. The absence of a specific averment regarding what
has been stated in Order 37 Rule 2(b) of CPC, has to be
considered in the context of the position that the plaint
has to be read as a whole, in order to ascertain the
compliance with the requirement of law. This is so for the
reason that it is the substance and not the form which is
material. A litigant cannot be non-suited or denied the
benefit of a provision, for not adhering to a specific
language or phrase, if the averments in the plaint are
sufficient enough to indicate a substantial compliance. In
54
this context, what has been held in Syed Dastagir Vs. T. R.
Gopalakrishna Setty (1999) 6 SCC 337, in the contextual
background of the requirement of an averment as to readiness
and willingness, in a suit for specific performance, as contained
in Section 16 (c) of the Specific Relief Act, would aptly cover the
position, which is as under :....
15. Thus it is the substance and not the Form, which is
material, for the purpose of deciding the satisfaction of the
requirement of a provision of the law.
........ ........ ........
17. In my considered opinion, the very position, that the
plaint in its heading states that it is one under Order 37
of CPC and the averments in paras 22 to 24 specifically
state that it is one, which is governed by the provisions of
Order 37 of CPC on the ground that cheques had been
issued and accounts have been settled and the suit is
based upon that premise, would indicate substantial
compliance with the requirement of Order 37 Rule 2 (1)
(b) of CPC. Even considering what has been held in Khera
Handloom Supply (supra) that there has to be substantial
compliance, in light of the above averments, it can be
said that the requirement of Order 37 Rule 2 (1)(b) of
CPC are concerned the same would be indicated to have
been satisfied. It would also be material to note that it is
in fact Sub-Rule (1) of Rule 1 of Order 37 of CPC, which
are the substantive provisions, which creates the
jurisdiction, right, and Sub-Rule (2) of Rule 1 of Order 37
of CPC which lay down the parameters for exercise of
such jurisdiction, enumerating that the classes of suits as
enumerated in clauses (a) and (b) of Sub-Rule 2 of Rule
(1) of Order 37 of CPC would be those in respect of which
summary jurisdiction could be exercised. Rule 2 of Order
37 of CPC on the other hand requires that in addition to
what has been provided in Order 37 Rule (1) Sub-Rule
(2) of CPC, what should be pleaded in the plaint and is
thus a rule of pleading, which as held in Khera Handloom
Supply (supra) would stand satisfied if substantial
compliance with the same is pointed out, which in the
instant matter as pointed out above is there. This position has
55
been considered in Hrishikesh (supra) [para 31] after
considering Khera Handloom Supply (supra), which I concur."
(Emphasis Supplied)
10. From a reading of the scheme of Order XXXVII and the
law laid down by the Apex Court and various High Courts, as afore-
quoted, the following position emerges:
(i) On a cursory perusal at the plaint, if it appears to be in order,
complying with all the three clauses under Order XXXVII Rule
2(1) of the CPC, and if it falls within the classes mentioned in
Order XXXVII Rule 1(2) of the CPC, the concerned Court has
to mandatorily issue summary summons under Order XXXVII
Rule 2(2) of the CPC in Form No.4 of Appendix B of CPC.
(ii) The concerned Court must decide the issue of maintainability
at the threshold and before issuing summons to the
defendant, the concerned Court can only have a preliminary
scrutiny of the plaint to find out as to whether the suit is one
falling under Order XXXVII of the CPC and is in accordance
56
with Order XXXVII of the CPC, but such inquiry has to be
limited.
(iii) The concerned Court at the stage of entertaining the suit,
before issuance of summary summons, cannot look into the
merits of the dispute involved and the probable defences that
would be taken by the defendants and come to the conclusion
that the suit involves complicated disputed questions of fact
and triable issues.
(iv) The dispute as to whether the case should be tried as a
summary suit or as an ordinary suit can only be adjudicated
after issuing summary summons under Form No.4 to the
defendant.
(v) It is only upon issuance of summons under Form No.4, the
defendant gets a copy of the plaint and other
annexures/documents relied upon by the plaintiff as provided
in Order XXXVII Rule 3(1) of the CPC, after which the
defendant becomes aware of the case pleaded by the Plaintiff.
57
(vi) It is only after the issuance of the summons under Form No.4
along with the copy of the plaint and annexures, the
defendant may enter appearance.
(vii) The defendant does not have a right to be heard and defend
the suit, until summary summons in Form No.4 is issued upon
him and he enters appearance.
(viii) It is only when the defendant enters appearance, the
plaintiff can serve on the defendant summons for judgment in
Form No.4-A, in Appendix B of the CPC. It is only then, the
defendant may seek leave to defend the suit.
11. What is sought by the petitioner in the suit is for issuance
of summons for a summary trial, under Form No.4 of Appendix-B.
What the Court would do, is issuing summons in Form No. 1 of
Appendix-B. Form No.1 reads as follows:
58
"APPENDIX B
PROCESS
No. 1.
SUMMONS FOR DISPOSAL OF SUIT (O. 5, rr.1.5.)
(Title)
To
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[Name, description and place of residence.]
WHEREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
has instituted a suit against you for you are hereby summoned
to appear in this Court in person, or by a pleader duly instructed
(and able to answer all material questions relating to the suit, or
who shall be accompanied by some person; able to answer all
such
questions,...............on.................the...................................
.....day.................of........................20..................,
at.........................................O'clock in
the................................................ noon, to answer the claim
; and as the day fixed for your appearance is appointed for the
final disposal of the suit, you must be prepared to produce on
that day all the witnesses upon whose evidence and all the
documents upon which you intend to rely in support of your
defence.
Take notice that, in default of your appearance on the day
before mentioned, the suit will be heard and determined in your
absence.
Given under my hand and the seal of the Court,
this..............day of................................. .......... 20
Judge
NOTICE--1. Should you apprehend your witnesses will not
attend of their own accord, you can have a summons from this
Court to compel the attendance of any witness, and the
production of any document that you have a right to call upon
the witness to produce, on applying to the Court and on
depositing the necessary expenses.
59
2. If you admit the claim, you should pay the money into
Court together with the costs of the suit, to avoid execution of
the decree, which may be against your person or property, or
both."
Form No.1 is summons for disposal of the suit, which would be on a
contest. Form No.4 deals with summons in a summary trial under
Order XXXVII Rule 2 of the CPC and reads as follows:
"No. 4
SUMMONS IN A SUMMARY SUIT
(O. 37, r. 2)
(Title)
To.................................................... [Name description and
place of residence.]
WHEREAS........................... has instituted a suit against you
under Order XXXVII of the Code of Civil Procedure, 1908, for
Rs.................and interest, you are hereby summoned to cause
and appearance to be entered for you, within ten days from the
service hereof, in default hereof the plaintiff will be entitled,
after the expiration of the said period of ten days, to obtain a
decree for any sum not exceeding the sum of
Rs....................and the sum of Rs..........................for costs,
together with such interest, if any, as the Court may order.
If you cause an appearance to be entered for you, the plaintiff
will thereafter server upon you a summons for judgment at the
hearing of which you will be entitle to move the Court for leave
to defend the suit.
Leave to defend may be obtained if you satisfy the Court by
affidavit or otherwise that there is defence to the suit on the
merits or that it is reasonable that you should be allowed to
defend.
60
Given under my hand and the seal of the Court,
this............................day of...........................20............
Judge."
What is prayed by the petitioner is a summary trial and therefore,
under Order XXXVII Rule 2 of the CPC summons ought to have
been issued for a summary trial. But, it is issued under Form No.1
which is for a regular trial in a suit.
12. The defendants have now filed their objections and an
application seeking rejection of the plaint, which could have been
done only in a summons issued under Form No.4. No doubt
summons is issued under Form No.1, but that is an error.
Therefore, on plain reading of the judgments interpreting Order
XXXVII Rule 2 of the CPC and the prayer that is sought by the
petitioner summons, ought to have been issued under Form No.4, if
the suit was one under Order XXXVII of the CPC and was in
compliance with all the clauses provided under Order XXXVII Rule
2(1) of the CPC. The concerned Court without recording anything to
this effect, by an unreasoned order, has proceeded to issue
summons under Form No. 1, thereby converting the summary suit
into a regular suit. If after issuance of summons under From No. 4
61
and after the defendant enters appearance, the Court were to find
that the matter ought to be tried as regular suit, it can always
convert it to a regular suit. Therefore, the issue of summons under
Form No.1 instead of Form No.4 without recording any reasons is,
on the face of it, erroneous.
13. In light of issue nos. (i), (ii) and (iii) being answered in
favour of the petitioner - plaintiff, issue No.(iv) does not merit
consideration at this juncture.
14. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Order dated 22-02-2025 passed by the XXIV Additional City Civil & Sessions Judge, Bengaluru in O.S.No.7263 of 2024 stands quashed.
(iii) The matter is remitted back to the concerned Court to regulate the proceedings, in accordance with the observations made in the course of the order.
62Consequently, pending application if any, also stands disposed.
This Court places its appreciation for the able assistance rendered by Miss. Sai Suvedhya R., Law Clerk cum Research Assistant attached to this Court.
Sd/-
(M.NAGAPRASANNA) JUDGE Bkp/CT:MJ