Mastering Summary Suits under CPC: Quick Justice through Order XXXVII: Summary Procedure under CPC, 1908

- April 28, 2025

Summary Procedure under CPC (Order XXXVII)

I. Objective

Speedy disposal of suits where the defendant is unlikely to have a real defence.
To prevent unreasonable obstruction by defendants.
Defendant cannot defend the suit as a matter of right; he must seek leave to defend within 10 days of service of summons.

II. Scope and Applicability

Applicable to:
- High Courts, City Civil Courts, Courts of Small Causes, and other notified courts.
Types of suits:
1. Bills of exchange, hundis, promissory notes.
2. Suits for recovery of debt or liquidated demand:
  - Arising from written contracts,
  - Enactments where a fixed sum is recoverable (other than penalty),
  - Guarantees where claim is against principal debtor.

III. Distinction from Ordinary Suit

Ordinary Suit	Summary Suit
Defendant has a right to defend.	Defendant needs leave of court to defend.
Decree can be set aside only by review.	Decree can be set aside by showing special circumstances.

IV. Procedure (Rules 2 & 3 of Order XXXVII)

Plaintiff files suit under summary procedure.
Summons issued to defendant requiring appearance within 10 days.
Upon appearance, Summons for Judgment served on defendant.
Defendant must apply for leave to defend within 10 days.
If no leave is granted, plaintiff gets decree forthwith.

Important: If defendant admits part of the claim, he must deposit that amount in court before getting leave to defend.

V. Tests for Granting Leave to Defend

Real, honest, and bona fide defence must be shown.
Triable issue must be raised.
Defence should not be sham, illusory, or moonshine.

Leading Case Laws:

Case	Principle
Raj Duggal v. Ramesh Kumar (AIR 1990 SC 2218)	Leave should be granted if defence raises a triable issue.
Southern Sales & Services v. Sauernilch Design (AIR 2009 SC 320)	Deposit of admitted amount is condition precedent for grant of leave.
Santosh Kumar v. Bhai Mool Singh (AIR 1958 SC 321)	Leave must be given if plausible defence shown.
M/s Mechalec Engineers v. M/s Basic Equipment Corp. (AIR 1977 SC 577)	Court laid down guidelines for unconditional/conditional leave.
Milkhi Ram (India) Pvt. Ltd. v. Chamanlal Bros. (AIR 1965 SC 1698)	Defence raising triable issue cannot be conditioned harshly.
Kiranmoyee Dassi v. Chatterjee (AIR 1949 Cal 479)	Calcutta High Court formulated basic principles on granting leave.

VI. Setting Aside Ex Parte Decree (Rule 4)

Court can set aside decree under special circumstances:
- Non-service of summons,
- Exceptional, extraordinary conditions.
The defendant must show:
1. Special circumstance for non-appearance, and
2. Plausible defence on merits.

Case:

Rajni Kumar v. Suresh Kumar Malhotra (AIR 2003 SC 1322): Detailed distinction between setting aside decree under Order IX and Order XXXVII.

VII. Critical Notes

Order XXXVII does not cover suits on indemnity bonds — see State Bank of Saurashtra v. Ashit Shipping Services Pvt. Ltd. (AIR 2002 SC 1993): Indemnity claims need proof of loss, hence not suited for summary suits.
Revision against order refusing or granting leave is maintainable (Wada Arun Asbestos (P.) Ltd. v. Gujarat Water Board, AIR 2009 SC 1027).

VIII. Key Takeaways

Courts must exercise judicial discretion in granting/refusing leave.
No evidence is to be led before deciding on leave.
Purpose is expeditious disposal, not denial of genuine defences.
Affidavit by defendant should disclose material facts for leave.
Deposit of admitted sum is mandatory post-amendment.

Summary Table: Procedure Under Order XXXVII

Step	Party	Action	Time limit
1	Plaintiff	File summary suit	-
2	Court	Issue summons to defendant	-
3	Defendant	Enter appearance	Within 10 days
4	Plaintiff	Serve summons for judgment	After appearance
5	Defendant	Apply for leave to defend	Within 10 days of summons for judgment
6	Court	Decide leave	Based on merits/trial issues

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