Overview
The summary suit is given under XXXVII of the Code of Civil Procedure, 1908. It is used for effectively enforcing a right. Courts pass judgment without hearing the defense in a summary suit. This appears to be violative of the principle of natural justice Audi alteram partem (let the other side be heard as well) but this procedure is only followed in limited cases. It is used in cases where the defendant has no defense and applies to limited subject matters.
What is the object behind the summary suit?
The object behind the summary suit are:
To ensure an expeditious hearing
To prevent unreasonable delay by the defendant
To ensure the defendant doesn’t have a frivolous defense
To assist expeditious disposal of the suit
In the case of Navinchandra Babulal Bhavsar v. Bachubhai Dhanabhai Shah [AIR 1969 Gujrat 124 (128) DB], the Gujarat High Court opined that the purpose of enacting summary suits is to boost the confidence in commercial cases that their money claims would be expeditiously decided and their claims will not remain pending for years. The object of the summary suit is to aid commercial transactions by a swift redressal mechanism.
Where can a summary suit be instituted?
Summary suits can be instituted in Courts of Small Causes, City Civil Courts, High Courts, and any court notified by the High Court. The High Courts have the power to restrict, enlarge or vary the categories of suits brought under this order.
Order XXXVII Rule 1 Sub-rule 2 provides classes of suits where it can be instituted.
Bills of exchange
Hundies
Promissory notes
Suit where the plaintiff seeks only to recover a debt
What is the procedure for a summary suit?
Rules 2 and 3 of the Code provide the procedure of summary suits. After the summons has been issued to the defendant, he is not entitled to defend the summary suit unless he makes an appearance. If the defendant defaults, the plaintiff will be entitled to an ex parte decree. If the defendant appears, he must apply for leave to defend within 10 days from the date of service of summons upon him. Leave will only be granted if his affidavit discloses facts that may entitle him to defend.
After the institution of a summary suit, the defendant should be served a copy of the plaint and summons in the prescribed form. The defendant has to make an appearance within 10 days of service of summons. If the defendant makes an appearance, the plaintiff shall serve him a summons for judgment. Then the defendant has to apply for leave to defend the suit. Leave may be granted to him unconditionally or what the court deems fit. If the defendant doesn’t apply for leave to defend, the plaintiff becomes entitled to judgment. If conditions on which leave was granted did not comply the plaintiff becomes entitled to judgment again. Order XXXVII Rule 7 provides that procedure in summary suits shall be the same as the procedure in ordinary suits.
How do courts interpret summary suits?
The language of Order XXXVII is to be interpreted liberally. The courts have interpreted it liberally in various judgments. The term “written contracts” has been given the widest meaning possible to include an invoice, bills.
The distinction between a summary suit and an ordinary suit
In summary suits, the defendant will be given a chance to defend himself if leave is granted. In an ordinary suit, the defendant is entitled to defend himself without the grant of leave. The principle of res judicata does not apply to summary suits. In case of non-appearance of defendant, a decree is passed in favor of plaintiff easily whereas in ordinary suits multiple summonses are served and then an ex parte order is passed.
What constitutes no defense?
In the case of IDBI Trusteeship Services Ltd v. Hubtown Ltd [2016 SCC OnLine SC 1274], the Supreme Court laid down conditions when leave to defend must be granted. The judge has to ensure that justice is being done on the factual matrix of the case. Unconditional leave is granted in cases where the defendant presents a substantial defense. The vexatious defense would result in refusal to grant leave. The court stated that if the defendant shows he has a fair or reasonable defense, though not a good defense, the plaintiff will not be entitled to judgment.
In the case of Precision Steel & Engg. Works v. Prem Deva Niranjan Deva [1983 SCR (1) 498], the Supreme Court held that mere disclosure of facts does not amount to substantial defence. The substantial defense has to be adduced from the facts and circumstances of each case. Unconditional leave to defend the suit shall be granted only when the amount due by the defendant has been deposited in Court.
Conclusion
To sum up everything, summary suits are a unique solution to help prevent unreasonable obstructions by the defendant. Summary suits are beneficial to commercial businesses as the plaintiff would be entitled to a judgment if the defendant doesn’t have a substantial defense. Order XXXVII ensures that the defendant does not prolong the litigation.
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