Code of Civil Procedure, 1908 (CPC)
Order XXXVII CPC: Summary Procedure and Summary Suits
Where a claim rests on a written instrument and the amount is fixed, a trial is often a delaying tactic rather than a defence. Order XXXVII of the Code of Civil Procedure, 1908 meets that by reversing the usual position: in a summary suit the defendant has no right to defend, and must earn it by satisfying the court that he has a defence worth trying. These notes cover the scope of the Order, the institution and the summons, the three outcomes of an application for leave to defend, and the comparison with an ordinary suit and with summary judgment under Order XIII-A.
A summary suit from plaint to the three doors that open on an application for leave to defend
1. Scope and Object: Rules 1 and 2
§ Order XXXVII Rules 1 and 2 (in substance) Rule 1(2). This Order applies to the following classes of suits, namely — (a) suits upon bills of exchange, hundis 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; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. Rule 2(1). A suit to which this Order applies may be instituted by presenting a plaint which shall contain (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; and (c) the following inscription immediately below the number of the suit in the title: (Under Order XXXVII of the Code of Civil Procedure, 1908). |
§ The two conditions that define the scope A suit is within the Order only where both are satisfied: • The claim rests on one of the listed foundations: a negotiable instrument, a written contract, an enactment, or a guarantee in respect of a debt or liquidated demand. An oral contract is outside the Order however clear the evidence, because the very premise of summary procedure is a written record. • The claim is for a debt or a liquidated demand in money. The amount must be fixed or ascertainable by calculation. A claim for unliquidated damages, for possession, for an injunction or for a declaration cannot be brought under the Order, and the plaint must aver that no relief outside the rule is claimed. |
The object follows from the two conditions. Where the obligation is in writing and the sum is fixed, the ordinary case is that there is nothing to try; the procedure denies the defendant the delay of a trial he does not need, while leaving him able to obtain one if he shows he does. That balance is struck by the leave requirement, not by shutting him out.
2. Institution, Appearance and the Summons for Judgment: Rules 2 and 3
Stage | Rule | What happens, and the time allowed |
|---|---|---|
The plaint | Rule 2(1) | Presented with the specific averment that it is under Order XXXVII, that no relief outside the rule is claimed, and with the prescribed inscription in the title |
The summons | Rule 2(2) and Rule 3(1) | The summons and a copy of the plaint are served on the defendant in the prescribed form, calling on him to enter an appearance |
Entering appearance | Rule 3(1) | The defendant must enter an appearance within TEN DAYS of service; on doing so he gives his address for service, and the plaintiff is thereafter to serve documents on him |
Failure to appear | Rule 2(3) | 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 |
Summons for judgment | Rule 3(4) | Where the defendant has appeared, the plaintiff serves a summons for judgment, supported by an affidavit verifying the cause of action and the amount, and stating that in his belief there is no defence to the suit |
Applying for leave to defend | Rule 3(5) | The defendant may, within TEN DAYS from the service of the summons for judgment, apply for leave to defend, supported by an affidavit disclosing such facts as may be deemed sufficient to entitle him to defend |
Where leave is not applied for | Rule 3(6)(a) | The plaintiff is entitled to a decree forthwith |
Condonation | Rule 3(7) | The court may, for sufficient cause shown, excuse the delay in entering an appearance or in applying for leave to defend |
§ The proviso to Rule 3(5) 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 proviso is what keeps the procedure fair. The default is not refusal: the court must be positively satisfied that the defence is insubstantial or frivolous before it shuts the defendant out. It also fixes the standard. The question is not whether the defence will succeed, but whether it is substantial, that is, whether it raises something that ought to be tried. |
3. The Three Outcomes on an Application for Leave
§ What the court may do, and when The gradation follows the quality of the defence disclosed: • Unconditional leave. Where the affidavit discloses facts that would constitute a substantial defence, or raise a triable issue on the merits, leave is granted without terms and the suit proceeds as an ordinary suit from that point. • Conditional leave. Where the defence is plausible but improbable, or raises doubts about the defendant's good faith, the court may grant leave on terms, ordinarily a deposit of the whole or part of the claim in court, or security for it. The condition must be reasonable; a condition so onerous that it amounts to a refusal defeats the proviso to Rule 3(5). • Refusal of leave. Where the defence is frivolous, vexatious or a sham, disclosing no substantial defence at all, leave is refused and the plaintiff is entitled to his decree without a trial. • A fourth possibility exists where the defendant admits part of the claim: under Rule 3(6)(b), leave may be granted only on his depositing the admitted sum in court, since there is no dispute about that part. |
§ Substantial defence and triable issue A substantial defence is one which, if established at the trial, would defeat the claim in whole or in part. It must be disclosed in the affidavit with facts, not assertions: a bare denial of the signature, or a bald plea of discharge without particulars, discloses nothing. A triable issue is the same idea expressed procedurally: a question of fact or law that cannot be resolved on affidavits and needs evidence. What is not enough: a defence that is a mere denial; a plea contradicted by the defendant's own documents; a defence raised for the first time and inconsistent with his earlier correspondence; and a plea of set-off or counterclaim unsupported by particulars. What is enough: a genuine dispute about the execution of the instrument, about consideration, about discharge by payment, about a condition precedent, or about the construction of the contract, where the facts stated would, if proved, answer the claim. |
4. Other Provisions of the Order
i. Rule 4: setting aside a decree. After a decree, the court may, under special circumstances, set aside the decree and, if necessary, stay or set aside execution, and may give leave to the defendant to appear and to defend the suit, if it seems reasonable to do so and on such terms as it thinks fit. The standard, special circumstances, is stricter than the sufficient cause of Order IX Rule 13.
ii. Rule 5: power to order a bill or note to be deposited. In a suit on a negotiable instrument, the court may order the instrument to be deposited with an officer of the court, and may further order that all proceedings be stayed until the plaintiff gives security for the costs.
iii. Rule 6: recovery of cost of noting non-acceptance. The holder of a dishonoured bill or note may recover from the party liable the expenses of noting non-acceptance or non-payment, or of protest.
iv. Rule 7: procedure in suits. Save as provided in the Order, the procedure in suits under it shall be the same as the procedure in ordinary suits. Once leave is granted, the suit is tried in the ordinary way.
v. Commercial suits. Where the claim is a commercial dispute of a Specified Value, the summary procedure of Order XXXVII and the summary judgment procedure of Order XIII-A both exist, and Order XIII-A Rule 1(2) provides that it shall not apply to a suit in respect of any commercial dispute that is originally filed as a summary suit under Order XXXVII.
5. Summary Suit Compared with an Ordinary Suit
Basis | Summary suit, Order XXXVII | Ordinary suit |
|---|---|---|
The right to defend | There is none as of right: the defendant must apply for leave and satisfy the court | The defendant is entitled to file a written statement and contest the suit |
Which claims | Negotiable instruments, written contracts, enactments and guarantees, for a debt or liquidated demand only | Any claim cognisable by a civil court |
What the plaint must state | That it is filed under Order XXXVII, that no relief outside the rule is claimed, and the prescribed inscription | The ordinary requirements of Order VII Rule 1 |
Effect of not appearing | The allegations in the plaint are deemed admitted and the plaintiff gets a decree | The suit proceeds ex parte under Order IX Rule 6, and the plaintiff must still prove his case |
Setting aside a decree | Rule 4: only under special circumstances | Order IX Rule 13: on sufficient cause for non-appearance |
Pace | Decided on affidavits unless leave is granted | Pleadings, issues, evidence and arguments in the ordinary course |
6. Order XXXVII Compared with Order XIII-A
Basis | Summary suit, Order XXXVII | Summary judgment, Order XIII-A |
|---|---|---|
Which suits | The classes in Rule 1(2), in any civil court | Commercial disputes of a Specified Value before a Commercial Court or Commercial Division |
Who initiates | The plaintiff, by instituting the suit in that form | Either the plaintiff or the defendant, by application |
When | At institution; the whole suit is in that form from the outset | After summons has been served and before issues are framed |
The test | Whether the defendant discloses a substantial defence or a triable issue entitling him to leave | Whether the party has no real prospect of succeeding on the claim or defence, and there is no other compelling reason for a trial |
Relief available | A decree for the plaintiff where leave is refused or not sought | Judgment against either party on the claim or on a particular issue, or a conditional order |
Overlap | Order XIII-A Rule 1(2): the summary judgment procedure does not apply to a suit originally filed as a summary suit under Order XXXVII | So the plaintiff in a commercial dispute chooses one route or the other |
7. Landmark Points
- Order XXXVII Rule 1(2). The Order covers bills of exchange, hundis and promissory notes, and claims for a debt or liquidated demand on a written contract, an enactment or a guarantee.
- Rule 2(1). The plaint must aver that the suit is under Order XXXVII, that no relief outside the rule is claimed, and carry the prescribed inscription.
- Rule 2(3). Failure to enter an appearance within ten days means the allegations in the plaint are deemed admitted and the plaintiff is entitled to a decree.
- Rule 3(5) with its proviso. Leave to defend must not be refused unless the facts disclosed do not indicate a substantial defence, or the defence is frivolous or vexatious.
- Rule 3(6)(b). Where part of the claim is admitted, leave may be conditioned on depositing the admitted sum in court.
- Rule 4. A decree in a summary suit is set aside only under special circumstances, a stricter standard than sufficient cause under Order IX Rule 13.
- Order XIII-A Rule 1(2). Summary judgment in commercial suits does not apply to a suit originally filed as a summary suit under Order XXXVII.
8. Frequently Asked Questions
What kinds of suit can be filed as summary suits?
Suits on bills of exchange, hundis and promissory notes, and suits to recover a debt or liquidated demand in money arising on a written contract, on an enactment where the sum is a fixed sum other than a penalty, or on a guarantee where the claim against the principal is for a debt or liquidated demand.
Can a claim for damages be brought as a summary suit?
No. The Order is confined to a debt or liquidated demand in money, that is, a sum fixed or ascertainable by calculation. A claim for unliquidated damages, for possession, for an injunction or for a declaration falls outside it.
What happens if the defendant does not enter an appearance?
Under Rule 2(3) 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. The ten-day period may be excused for sufficient cause under Rule 3(7).
How does a defendant obtain leave to defend?
By applying within ten days from the service of the summons for judgment, supported by an affidavit disclosing such facts as may be deemed sufficient to entitle him to defend. The facts must be stated; assertions and bare denials disclose nothing.
When is leave to defend refused?
Only where 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. The proviso to Rule 3(5) makes refusal the exception, not the default.
What is conditional leave to defend?
Leave granted on terms, typically a deposit of the whole or part of the claim or security for it, where the defence is plausible but improbable or raises doubts about the defendant's good faith. A condition so onerous that it amounts to a refusal defeats the proviso to Rule 3(5).
Can a decree in a summary suit be set aside?
Yes, but only under special circumstances, under Rule 4. The court may then set aside the decree, stay or set aside execution, and give the defendant leave to appear and defend. The standard is stricter than the sufficient cause required under Order IX Rule 13.
How does a summary suit differ from summary judgment under Order XIII-A?
A summary suit is a form in which the plaintiff institutes the suit, in any civil court, for the listed classes of claim. Summary judgment is an application by either party in a commercial dispute of a Specified Value, made after service and before issues are framed, on the test of no real prospect of success. Order XIII-A does not apply to a suit originally filed under Order XXXVII.
9. Related Topics in This CPC Series
- Order XIII-A: Summary Judgment in Commercial Suits
- Order XII: Admissions and Judgment on Admissions
- Order IX: Appearance and Non-Appearance of Parties
- Setting Aside an Ex Parte Decree under Order IX Rule 13