Report No. 54
37.11. In short, our recommendations as to Order 37, are as follows:-
(i) Order 37 should be extended to/all. courts;
(ii) Order 37 should be amended on the lines of the Bombay amendment, so as to extend it to certain other suits in accordance with the Bombay amendment;
(iii) Further, the procedure under Order 37, rule 3, should be amended as in Bombay.1
1. Cf. 14th Report, Vol. 1.
37.12. Accordingly, the following amendments are recommended
(i) For the existing title of Order 37, the following title should be substituted-
(ii) For Order 37, rule 1, the following rule should be substituted-
"1. Application of Order-
(1) This Order shall apply to the following Courts, namely,-
(a) High Courts, City Civil Courts, and Courts of Small Causes; and
(b) subject to the proviso, other Courts:
Provided that in respect of the courts mentioned in sub-clause (b) above, the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it may deem proper, and may also subsequently by notification in the Official Gazette further restrict, enlarge, or vary from time to time the categories of suits to be brought under the operation of this Order as it may deem proper."
(2) Subject to the provisions of sub-rule (1), the Order applies to the following 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;
(iii) on a guarantee, where the claim against principal is in respect of a debt or a liquidated demand only;
(iii) For existing Order 37, rule 2, the following rule shall be substituted:
"2(1) A suit to which this Order applies may, if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint with a specific averment therein that the suit is filed under this Order, and that no relief not falling within the ambit of this rule has been claimed, and with the inscription within brackets "(Under Order XXXVII of the Code of Civil Procedure, 1908)" just below the number of the suit in the title of the suit, but the summons shall be in Form No. 4, Appendix B or in such other form as may be from time to time prescribed.
(2) In any case in which summons is in the prescribed form (viz. Form No. 4 in Appendix B), the defendant shall not defend the suit, unless he enters an appearance and obtains leave from the Court or Judge as hereinafter provided so to defend; and in default of his entering an appearance and of his obtaining such leave to defend, 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."
(iv) The following shall be substituted for Order 37, rule 3
"3(1) In a suit to which this Order applies, the plaintiff shall, together with the writ of summons under rule 2, serve on the defendant a copy of the plaint and exhibits thereto, and the defendant may, at any time within ten days of such service, enter an appearance. The defendant may enter an appearance either in person or by pleader. In either case an address for service shall be given in the memorandum of appearance, and unless otherwise ordered, all summonses, notices or other judicial processes required to be served on the defendant shall be deemed to have been duly served on him, if left at his address for service. On the day of entering the appearance, notice, of the appearance shall be given to the plaintiff's pleader, (or, if the plaintiff sues in person, to the plaintiff himself) either by notice delivered at or sent by prepaid letter directed to the address of the plaintiffs pleader or of the plaintiff, as the case may be.
(2) If the defendant enters an appearance, the plaintiff shall thereafter serve on the 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 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.
(3) 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. Leave to defend may be granted to him unconditionally or upon such terms as to the Judge of Court appear just.
(4) 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 be permitted to defend as to the whole or any part of the claim, the Court or the judge shall direct that on failure to complete the security (if any), or to carry out such other directions as the Court or the Judge may have given within the time limit in the Order, the plaintiff shall be entitled to judgment forthwith.
(5) The Court may for sufficient cause excuse the delay in entering the appearance under sub-rule (1) or in applying for leave to defend the suit under sub-rule (3) of this rule."