Summary Suit and Ordinary Suit
SUMMARY SUIT AND ORDINARY SUIT UNDER THE CIVIL PROCEDURE CODE
By Sandigdha Mishra, Advocate
advsandigdha@paydirtprofessionals.com
So first, a plaint has to be prepared then the appropriate place for suing has to be chosen and thereafter, the plaint has to be presented. Section 26(2) of the Code of Civil Procedure says that the facts in each plaint have to be proved by affidavit.
Now, what is a summary suit as well as an ordinary suit?
Summary Suit
Summary suit means a certain legal process is followed so as to enforce right effectively wherein the court delivers judgment and defence is not heard. So, this is process is done in specific cases in a restricted manner and when the defence does not have proper or reasonable ground. In the Code of Civil Procedure, Order XXXVII speaks about the summary procedure that has to be followed for recovery of money through the suit in court with proper jurisdiction and this is a civil remedy.
As per Order XXXVII, Code of Civil Procedure, a summary suit is filed. In this type of suit, a defendant cannot defend and in case, the defendant wants to defend then the defendant has to get leave from the court within the specified period but if the court rejects the leave then decree would be in favour of the plaintiff. So, the defendant in a summary suit has to establish the fact in a period of ten days. Res sub judice and Res judicata is not applicable for summary suits.
Ordinary Suit
Ordinary suits are filed under Section 26 Order VI Rule 1 of the Code of Civil Procedure where suits which are of civil nature are filed and not restricted to any matter in specific except that it has to be of civil nature. In this suit, a defendant can defend without applying for leave from the court and the defendant gets a 30-day period for filing written statement. In the ordinary suit, there is the applicability of Res sub judice and Res judicata.
Object of Summary Suit:
The ultimate object of a summary suit is expeditious disposal of a commercial dispute. The discretion vested in the court, therefore, requires it to maintain the delicate balance between the respective rights and contentions by not passing an order which may ultimately end up impeding the speedy resolution of the dispute.
In a summary suit, if the defendant discloses such facts of a prima facie fair and reasonable defence, the court may grant unconditional leave to defend. This naturally concerns the subjective satisfaction of the court on the basis of the materials that may be placed before it. However, in an appropriate case, if the court is satisfied with a plausible or probable defence and which defence is not considered a sham or moonshine, but yet leaving certain doubts in the mind of the court, it may grant conditional leave to defend. In contradistinction to the earlier subjective satisfaction of the court, in the latter case, there is an element of discretion vested in the court.
Such discretion is not absolute but has to be judiciously exercised tempered with what is just and proper in the facts of a particular case. The ultimate object of a summary suit is expeditious disposal of a commercial dispute. The discretion vested in the court, therefore, requires it to maintain the delicate balance between the respective rights and contentions by not passing an order which may ultimately end up impeding the speedy resolution of the dispute.
In short, the summary suit is faster than an ordinary suit. Sometimes multiple summonses will be served on a defendant before an ex parte decree in favour of the Plaintiff which is passed. For a summary suit, if the defendant fails to obtain why he has allowed defending within 10 days, an ex parte decree will be immediately given.
Scope and extent of applicability
A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes and any other court notified by the High Court. High Courts can restrict, enlarge or vary the categories of suits to be brought under this order.
As explained above that the object of Summary suits is to aid commercial transactions by a swift redressal mechanism these suits can be instituted only in case of certain specified documents.
The documents such as a bill of exchange, hundies, and promissory notes and 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 on a written contract; or 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 on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.
The procedure of Summary Suits
Rules 2 and 3 provide the procedure of summary suits. Under rule 2 after the summons of the suit has been issued to the defendant. The defendant is not entitled to defend Summary suit unless he enters an appearance.
In default of this, the plaintiff will be entitled to an ex parte decree which is on a different footing to an Ex Parte decree passed in ordinary suits(the differences have been analyzed subsequently).
In the case that the defendant appears, the defendant must apply for leave to defend within ten days from the date of service of summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed to entitle him to defend.
The cases where leave to defend should and shouldn’t be granted have been analyzed subsequently.
Types of interpretations to be applied
As the purpose of summary suits is to act as a welfare mechanism to achieve justice in an expedient manner, the language under Or.37 is to be interpreted liberally, which has been reflected in numerous judgments.
summary suits act like an ingenious solution to help prevent unreasonable obstructions by a defendant who has no tenable defence. Summary suits would be beneficial to businesses as unless the defendant is able to demonstrate that he has a substantial defence, the plaintiff is entitled to a judgment. Order 37 engineers an appropriate mechanism that ensures that the defendant does not prolong the litigation especially as in commercial matters time is of the essence and helps further the cause of Justice.
Thank you
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is it mandatory that every case where a bill of exchange or promissory note is involved, a summary suit is engaged? can't an ordinary suit be engaged?
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