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Summary Procedure under Order 37 CPC

CODE OF CIVIL PROCEDURE, 1908

ORDER XXXVII

Summary Procedure

  1. Courts and classes of suits to which the Order is to apply
  2. Institution of summary suit
  3. Procedure for the appearance of defendant

  4. Power to set aside decree
  5. Power to order bill, etc. to be deposited with officer of Court
  6. Recovery of cost of noting non-acceptance of dishonoured bill or note
  7. Procedure in suits

CASE NOTES

Objects and Reasons

The Objects and Reasons clause appended to the Bill, which brought into existence Order 37 of the Code of Civil Procedure, 1908, states that Order 37 provides for a summary procedure in respect of certain suits. The essence of the summary suit is that the defendant is not, as in an ordinary suit, entitled as of right to defend the suit.

He must apply for leave to defend within ten days from the date of the service of the summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the Court may deem sufficient for granting leave to the defendant to appear and defend the suit.

If no leave to defend the suit is granted, the Plaintiff is entitled to a decree. The object underlying the summary procedure is to prevent unreasonable obstruction by a Defendant who has no defence. The Order is, however, confined to suits of negotiable instruments and is confined to superior Courts. [Bankay Bihari G. Agrawal Vs. M/S Bhagwanji Meghihi & Ors., 2001 (2) BomCR 86]

Maintainability of the Suit

Where the applicability of Order 37 itself is in question, grant of leave to defend may be permissible. The Court before passing a decree is entitled to take into consideration the consequences therefor.

The Courts dealing with summary trials should act very carefully taking note of the interests of both the parties. Merely on the ground that the defendant may resort to prolonged litigation by putting forth untenable and frivolous defences, grant of leave to defend cannot be declined. At the same time, the Court must ensure that the defendant raises a real issue and not a sham one.

The Court cannot reject the defence on the ground of implausibility or inconsistency. Before recording a finding of granting leave to defend, the Court should assess the facts and come to the conclusion that if the facts alleged by the defendant in the affidavit are established, there would be a good or even a plausible defence on those facts. [Neebha Kapoori Vs. Jayantilal Khandwala, 2008 (3) SCC 770]

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