SUMMARY PROCEDURE

 SUMMARY PROCEDURE

ORDER XXXVII OF CODE OF CIVIL PROCEDURE

• Introduction

In recover suits under civil litigation, it is mostly held to be time-consuming but not if one knows about the purpose of a Summary Suit of CPC, 1908. A summary suit is a process where courts give judgments without hearing to the defence. the process of the Summary suit is conflicting with the principle of Natural Justice (Audi Alteram Partem), but this proceeding is only relevant to restricted matters where the defendant does not have an explanation to defend him. Summary Suit is described in Order XXXVII of the CPC. The purpose of this provision under CPC is to prevent irrelevant extending of the litigation procedure by the defendant in the class of case where quick judgments are needed, which could support the complainants to protect the monetary expenses as well.

• Applicability and Extent

The provisions of Order XXXVII of the Code of Civil Proceedings is relevant to the following class of courts:

1. High Courts,

2. City Civil Courts,

3. Courts of Small Causes,

4. Other Courts.

Order XXXVII is relevant to the following class of suits:

1. Suits referred to bills of exchange, promissory notes, and hundies.

2. Suits where the plaintiff asks only to recover a liquidated demand or debt in money payable by the defendant, with or without benefit, arising-

1. On a written contract, or

2. On an enactment, where the total sought can be recovered is a fixed total of money or like debt than a penalty;

or

3. on a surity, where the claim is opposite to the principle is in regards to a debt or liquidated demand only.

• Jurisdiction of Summary Suits

Suits can be suggested at the below-mentioned places:

1. Where the defendant lives

2. Where the defendant works for individual benefit

3. The place where the cause of action arises partly or wholly

On the basis of pecuniary jurisdiction, the suit can be brought in the High Court or District Court.

• Time Limitation to start a Summary Suit

The suit can be initiated within three years from the date of cause of action. The period of restriction cannot be ignored. 

• Content of Plaint for a summary procedure

Below-mentioned is the elements of a plain file for a summary procedure:

1. Facts containing to the cause of action;

2. A fixed assertion that suit is filed under the order;

3. That all the damages or relief, falls in the provisions of this order.

4. The following points must be there under the number of the suit.

• The procedure under a Summary suit

1. A summary suit is started through the presentation of the plaint in the appropriate civil court.

2. Post filing of a summary suit, a copy of the summons and plaint must be sent to the defendant in the suggested format.

3. The defendant will bring himself in person or by pleader within 10 days from the order of summons.

4. The plaintiff shall provide the defendant a summons for judgment if he comes before the court himself. 

5. The defendant has to file an application for leave to defend within 10 days from the order of such summons.

6. Leave to defend may be acknowledged by the court unconditionally or with any conditions, which the court may think to be just and lawful.

7. If a defendant has not produced an application for leave or such an application has been refused or if the defendant does not obey the conditions on the grounds of which the leave was granted, the plaintiff is entitled to judgment forthwith.

• When a leave to defend is granted?

The Hon’ble Court has discussed the situation under which leave to defend is given in summary suits in the case of Kiranmoyee Dassi v. J. Chatterjee. These are the following situations:

1. When the defendant is capable to prove substantial defence in the court

2. If the defendant has triable problems depicting a fair defence not essentially a positive defence, the defendant is entitled to leave to defend.

3. If the defendant has triable matters and the judge is not sure about the defendant’s bona fide intentions, even then the leave to defend is granted.

4. d)The trial judge may allow conditional leave to defend as to the mode of trial or time or payment/security to the court when the defendant rises an implausible issue

5. If the defendant has no substantial defence and has no triable issues, then no leave to defend is granted.

6. Where the part of the sum claimed by the plaintiff is admitted to be paid by the defendant, leave to defend shall not be given unless the sum is submitted by the defendant in the court.

Also, in the case of Milkhiram (India) Private Ltd. vs. Chamanlal Bros it was observed that the discretion of the court to admit unconditional leave to defend might be debatable when the defence is deceitful.

• Setting apart a decree in precis fits

Rule four of Order XXXVII explains the courtroom docket having the electricity to set apart an exparte decree beneath neath unique situations in a precise suit. The courtroom docket is entrusted to furnish alive at the execution of such decree. The defendant in any such case ought to now no longer best monitor the particular situations, which stopped him from appearing, however additionally the facts, which might advantage him go away to shield. 

• Conclusion

The precise manner beneath neath order XXXVII is a criminal manner used for quicker and extra powerful litigation for industrial matters. Its item is to summarize the fits in instances in which a defendant isn't always ready with any defence. However, there are unique situations in which the defendant is granted go away the shield. Nevertheless, for go away to be granted there are numerous pre-necessities to be observed through the defendant. In the case of the contrary, the go-away to shield is rejected, and the plaintiff receives a facet withinside the case. Thus, a precise manner is an efficient way to assist save you an undesirable extended lawsuit.

 

Written By Parul Sharma