Summary Procedure

(a) a specific averment 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 (c) the following inscription immediately below the number of the suit in the title: "(Under Order XXXVII of the Code of Civil Procedure, 1908)"

Rule 2(2): the summons of the suit shall be in Form No. 4 in Appendix B or such other form as may be prescribed.

Those three requirements in Rule 2(1) are easy marks and are often omitted. A plaint that does not carry the averment, the negative averment and the inscription is not a summary suit.

The four steps: Rule 3

This is the heart of the Order, and the sequence and the two ten-day periods are what an answer must get right.

Step one. Rule 3(1): the plaintiff shall, together with the summons, serve on the defendant a copy of the plaint and annexures, and the defendant may, at any time within ten days of such service, enter an appearance, in person or by pleader, and shall file in Court an address for service.

Rule 3(2): unless otherwise ordered, all summonses, notices and processes are deemed duly served if left at that address.

Rule 3(3): on the day of entering appearance the defendant shall give notice of it to the plaintiff's pleader, or to the plaintiff if he sues in person, by notice delivered at or sent by pre-paid letter to that address.

Step two. Rule 3(4): if the defendant enters an appearance, the plaintiff shall then serve on him a summons for judgment in Form No. 4A in Appendix B, 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.

Step three. Rule 3(5): the defendant may, at any time within ten days from the service of the summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply for leave to defend; and leave may be granted unconditionally or upon such terms as appear to the Court to be just.

The first proviso, and this is the sentence that matters most: 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 is frivolous or vexatious.

The second proviso: where part of the amount claimed is admitted by the defendant to be due, leave to defend shall not be granted unless he deposits in Court the amount so admitted.

Step four. Where the defendant does not apply for leave, or leave is refused, the plaintiff is entitled to judgment forthwith.

Read the first proviso carefully. It is framed as a restriction on refusing leave, not as a condition of granting it. The court does not ask whether the defence will succeed; it asks whether the facts disclosed show a substantial defence, and whether the proposed defence is frivolous or vexatious. That framing is deliberately generous to the defendant, because refusing leave shuts him out altogether.

Failure to appear, and setting aside: Rules 4 and 6

Rule 6(1): where the defendant does not enter an appearance within the time provided, or does not apply for leave to defend, or where leave is refused, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for the sum claimed with interest and costs.

Rule 6(2): after the decree, the Court may, under special circumstances, set aside the decree and, if necessary, stay or set aside execution, and may give leave to appear and to defend the suit if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit.

Rule 4 is to the same effect: after a decree the Court may, under special circumstances, set it aside and give leave to defend, on such terms as it thinks fit.

The phrase to hold on to is "special circumstances". It is a higher bar than the "sufficient cause" that governs setting aside an ordinary ex parte decree under Order IX Rule 13, and the difference is the price of the summary procedure. See [Appearance and Consequences of Non-appearance].

Rule 7: save as provided by this Order, the procedure in suits under it shall be the same as the procedure in suits instituted in the ordinary manner. So once leave to defend is granted, the case becomes an ordinary suit.

Summary suit against ordinary suit

A worked example

Waseem holds a cheque for Rs. 9,00,000 given by Yamini which has been dishonoured.

Can he sue summarily? Yes. A cheque is a bill of exchange, so the suit falls within Rule 1(2)(a).

What must his plaint contain? Under Rule 2(1), a specific averment that the suit is filed under Order XXXVII, an averment that no relief outside the Order is claimed, and the inscription "(Under Order XXXVII of the Code of Civil Procedure, 1908)" immediately below the suit number.

What happens next? The summons in Form No. 4 goes out with a copy of the plaint and annexures. Yamini has ten days from service to enter an appearance and file an address for service, and must give notice of her appearance to Waseem's pleader that day.

She appears. Waseem then serves a summons for judgment in Form No. 4A, returnable not less than ten days after service, with an affidavit verifying the cause of action and the amount and stating his belief that there is no defence.

She wants to defend. Within ten days of that summons she applies for leave to defend, disclosing by affidavit facts sufficient to entitle her to defend. Leave shall not be refused unless the Court is satisfied that those facts show no substantial defence, or that the defence is frivolous or vexatious.

She admits Rs. 3,00,000 is due but disputes the rest. The second proviso: leave shall not be granted unless she deposits the admitted Rs. 3,00,000 in Court.

She does nothing at all. Rule 6(1): the allegations in the plaint are deemed admitted and Waseem is entitled to a decree for the sum claimed with interest and costs.

She then wants the decree set aside. Rule 6(2) and Rule 4: only under special circumstances, which is a higher bar than the sufficient cause required for an ordinary ex parte decree.

She obtains leave to defend. Rule 7: the suit now proceeds like any other, with a written statement, issues and a trial.

Change the claim. Suppose Waseem also claimed unliquidated damages for the inconvenience caused. That relief falls outside the Order, so Rule 2(1)(b) is not satisfied and the suit cannot proceed summarily as framed.

What it does not mean

A summary suit is not a suit without a trial. It is a suit in which the defendant must first show he has a defence worth trying.

Leave is not refused because the defence looks weak. It is refused only where the facts disclose no substantial defence, or the defence is frivolous or vexatious.

It is not available for unliquidated claims. Every class in Rule 1(2) is a debt or liquidated demand on a document or an enactment.

A defendant who admits part cannot defend the rest for nothing. The second proviso requires the admitted amount to be deposited.

A summary decree is not set aside on sufficient cause. Rules 4 and 6 require special circumstances.

Quick revision

Rule 1: applies in High Courts, City Civil Courts and Courts of Small Causes and, subject to High Court notification, other courts; to suits on bills of exchange, hundies and promissory notes, to claims for a debt or liquidated demand on a written contract, an enactment or a guarantee, and to assigned receivables.

Rule 2: the plaint must carry the averment that it is under Order XXXVII, an averment that no relief outside the Order is claimed, and the inscription below the suit number; summons in Form No. 4.

Rule 3: ten days from service to enter an appearance and file an address for service; then a summons for judgment in Form 4A, returnable not less than ten days later, with an affidavit that there is no defence; then ten days for the defendant to apply for leave to defend on affidavit. Leave shall not be refused unless there is no substantial defence or the defence is frivolous or vexatious; where part is admitted, leave only on depositing that part.

Rule 6: no appearance, no application, or leave refused, means the plaint's allegations are deemed admitted and a decree follows. Rules 4 and 6(2): set aside only under special circumstances.

Rule 7: otherwise the procedure is that of an ordinary suit.

Test yourself

1. To what classes of suit does Order XXXVII apply? Suits upon bills of exchange, hundies and promissory notes; suits in which the plaintiff seeks only to recover a debt or liquidated demand in money, with or without interest, arising on a written contract, on an enactment where the sum is a fixed sum 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; and suits for the recovery of receivables instituted by an assignee of a receivable.

2. What must the plaint in a summary suit contain? A specific averment that the suit is filed under Order XXXVII; an averment that no relief which does not fall within the ambit of the rule has been claimed; and the inscription "(Under Order XXXVII of the Code of Civil Procedure, 1908)" immediately below the number of the suit in the title.

3. Within what time must the defendant enter an appearance? Within ten days of service of the summons together with a copy of the plaint and annexures, in person or by pleader, filing in Court an address for service and giving notice of the appearance to the plaintiff's pleader on that day.

4. On what basis is leave to defend granted or refused? The defendant applies within ten days of service of the summons for judgment, disclosing by affidavit or otherwise facts sufficient to entitle him to defend, and leave may be granted unconditionally or on terms. Leave shall not be refused unless the Court is satisfied that the facts disclosed do not indicate a substantial defence, or that the defence intended to be put up is frivolous or vexatious. Where part of the claim is admitted, leave shall not be granted unless that amount is deposited in Court.

5. What follows if the defendant does not appear or leave is refused? Under Order XXXVII Rule 6(1) the allegations in the plaint are deemed to be admitted and the plaintiff is entitled to a decree for the sum claimed, with interest and costs.

6. On what ground may a summary decree be set aside? Only under special circumstances, under Order XXXVII Rules 4 and 6(2), when the Court may set aside the decree, stay or set aside execution, and give leave to appear and defend if it seems reasonable and on such terms as it thinks fit. That is a higher threshold than the sufficient cause required to set aside an ordinary ex parte decree.