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The rules regarding summary procedure of Suits (Code of Civil Procedure, 1908)

January 18, 2019 0 Comment

Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely—(a) suits upon bills of exchange, hundies 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. [O. 37, R. 1 (2)].

A suit to which O. 37 applies may, if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain, (a) a specific averment to the effect that the suit is filed under Order 37 (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 title In the title of the suit, namely:

“(Under O. XXXVII of the Code of Civil Procedure, 1908).”

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The defendant shall not defend the suit unless he enters an appearance and in default of his entering an appearance, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith. (O. 37, R. 2).

Procedure for the appearance of the defendant:

In a suit to which O. 37 applies, the plaintiff shall together with the summons serve on the defendant a copy of the plaint and annexure thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in court an address for service of notice on him.

If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4-A in Appendix B or such other form as may be prescribed from time to time, 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.

The defendant may at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the court to be just.

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 rise or that the defence intended to be put up by the defendant is frivolous or vexatious.

Where the part of the amount claimed by the plaintiff is admitted by the defendant to be due from his leave to defend, the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant In court.

At the hearing of such summons for judgment:

(a) If the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) If the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith. The Court or Judge may, for sufficient cause shown by the defendant,’ excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. (O. 37, R. 3).

After 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 in compliance with summons and to defend the suit. (O. 37, R. 4).

A summary suit must be brought within one year from the date on which the debt becomes due and payable, whereas the period of limitation for a suit brought in the ordinary manner on a negotiable instrument is three years.

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