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Report No. 54

Chapter 37

Summary Procedure


37.1. Order 37 provides for summary procedure, in respect of certain suits. A suit under this Order is instituted in the ordinary form by presenting a plaint; but the summons is issued in a special form1. The essence of a summary suit under Order 37 is that the defendant is not, as in an ordinary suit, entitled as a right to defend the suit. He must apply for leave to defend within ten days from the date of service of summons upon him; and such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration, or such other facts as the court may deem sufficient for granting leave to the defendant to appear and defend the suit. If no leave to defend is granted, the plaintiff is entitled to a decree. The object underlying the summary procedure is to prevent unreasonable obstruction by a defendant who has no defence.

1. Appendix B, Form No. 4.

Bombay Amendment

37.2. The Order is confined to suits on negotiable instruments, but the effect of the amendments made by the Bombay High Court is practically to extend it to suits mentioned in section 128(2)(f) of the Code.

37.3. Moreover, by Bombay amendment, the procedure has, to some extent, been made less rigorous by an amendment of rule 3 of the Order 37. The Bombay amendment requires a plaintiff to serve, with the writ of summons, a copy of the plaint and the exhibits, and the defendant may at any time, within ten days of such service enter only an appearance in the first instance. Notice of the appearance must be given to the plaintiff's attorney, and thereafter the plaintiff is required to serve on the defendant a summons for judgment, returnable in 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. It is only after the service of this additional service for judgment that the defendant is required within ten days thereof to apply for leave to defend.

1. 14th Report, Vol. I.

37.4. In the 14th Report2 of the Law Commission, a recommendation has been made for-

(a) amendment of the rules relating to summary procedure on the lines of the Bombay amendment; and

(b) extension of summary procedure to subordinate courts in important industrial and commercial towns like Ahmedabad, Asanasol, Kanpur and Jamshedpur.

37.5. The Commission, in its Report1 on the Code examined these recommendations and expressed the view that action under (a) above could be taken by the High Courts under section 128(2)(a), and action under (b) above could be taken by the State Governments under Order 37, rule 1(b). It was, therefore, considered unnecessary to make any provision on these matters of detail in the Code.

1. 27th Report, note on Order 37 (Summary procedure).

37.6. We have considered the matter further. As we take a different view, we should deal with the matter point by point. As to extending the provisions to other cities, we note that in the 14th Report, it was observed1:-

"22. A general extension of the summary procedure to all court of subordinate judges and munsifs has not been advocated nor do we recommend any such far-reaching measure. We understand that although Order 37 has been applied to the courts of all subordinate judges and munsifs in Madras, it is not in use and has virtually become a dead letter so far as subordinate courts in mofussil of that State are concerned. The High Court of Allahabad is opposed to its general extension. The Bombay High Court is in favour of extending it to the courts in such commercial towns as are recommended by the High Court. The Civil Justice Committee made a similar proposal. Order 37 was extended to certain courts in Bengal, Uttar Pradesh and the Punjab, probably on the basis of that recommendation."

We suggest that the High Courts should extend the rules of summary procedure, as amplified in Bombay, to subordinate courts in important industrial and commercial towns like Ahmedabad, Asansol, Kanpur and Jamshedpur."

1. 14th Report, Vol. 1.

37.7. We have taken note of the views expressed in the 14th Report. We, however, think that the time has come for extending summary procedure to all courts, in the interest of expedition, and not to specified towns only.

37.8. It is, in our view, also desirable to extend summary procedure to all suits mentioned in section 128(2)(f), in the interest of expedition.1

1. Cf. para. 372, supra.

37.9. In our opinion, the procedural amendments made by the Bombay High Court1 are also useful, and should be adopted.

1. Cf. para. 373, supra.

37.10. As has been observed, having regard to the scheme of Order 37 as amended by the Bombay High Court,1 it is not necessary for a defendant to obtain leave to appeal in a summary suit. He can also make applications which do not raise a defence to the suit without obtaining leave defend.2

1. Indian Express Newspaper Ltd. v. Basumati Private Ltd., AIR 1969 Born 40 (46, 47), para. 14.

2. Cf. 14th Report, Vol. 1.

The Code of Civil Procedure, 1908 Back

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