Sunday, May 26, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

MODEL ANSWER

SUMMARY SUIT

Explain the concept of summary suit in detail.

According to Indian Justice System, whenever a suit is filed by plaintiff against any defendant then an opportunity is given to the plaintiff to prove his case and besides this an opportunity is also given to the defendant to disprove the case of plaintiff. The defendant can disprove the case of plaintiff by producing evidences in his favor and if defendant disproves the case of plaintiff, then in such a case, court will pronounce the decree in favor of defendant and against plaintiff but if defendant fails to disprove the case of plaintiff, then in such a situation, the court will pronounce the decree in favor of plaintiff and against defendant.
This is an ordinary procedure and an opportunity is given to both the parties to the suit to prove their facts. It is a lengthy procedure and sometimes a defendant just to delay the judicial proceedings or harass the plaintiff produces false or frivolous evidences and tries to linger on the proceedings. Due to these reasons, it becomes difficult for the plaintiff to get fair and reasonable justice and it also becomes difficult for the court to administer proper and timely justice to the aggrieved party and according to Indian Justice System,
“Justice delayed is justice denied”.
Order 37 of the Code of Civil Procedure, 1908, is based upon this principle and founded on public policy. This Order deals with the provisions of “Summary Trial” and the concept of summary trial is different from ordinary trial. According to the provision of Code of Civil Procedure, 1908, in an ordinary trial, it is a right of defendant to defend the case filed by the plaintiff whereas in a summary trial, it is not right of the defendant to defend the suit. If he wants to defend the suit then he will have to take the permission from the court after fulfilling the conditions laid down by Order 37 of the Code of Civil Procedure, 1908.
According to Order 37 Rule 1 of Code of Civil Procedure, 1908, this Order is applicable only upon High Courts, City Civil Courts and Courts of Small Causes or any other court which is declared by the High court. According to the provisions of this rule, a plaintiff can file a suit under this Order only if the suit is based upon Bills of exchange, hundies or promissory notes or if the plaintiff claims liquidated or fixed amount of money based upon any contract, enactment or guarantee. If these conditions are fulfilled then only plaintiff can file a suit under this Order. According to Order 37 Rule 2 of Code of Civil Procedure, 1908, if the plaintiff files a suit under this Order, then in a plaint, plaintiff will have to mention the facts that he has filed the suit under this Order and he has not claimed any relief which does not fall within the ambit of this Order.
According to the provisions of Order 37 of Code of Civil Procedure, 1908, if the plaintiff files a suit under this Order and fulfills all the conditions laid down under Rule 1 and 2 then summons are served to the defendant alongwith the copy of plaint and if the defendant wants to defend the suit, then it is necessary for him to appear before the court within ten days from the date of serving summons and if the defendant appears then the plaintiff will serve summons for judgment and it becomes necessary for the defendant to apply before the court for leave to defend the suit within ten days from the date of service of summons upon him. If the defendant applies for the leave to defend the suit, then the court will give him permission only if he states the facts which are sufficient to entitle him to defend the suit. Basically, it means that it is necessary for the defendant to show the relevant facts which can disprove the case of plaintiff. If the court satisfies with the facts disclosed by the defendant, then only the court will allow him to defend the suit. But if the court thinks that the facts disclosed by the defendant are not sufficient to raise a substantial defence or are frivolous or vexatious then in such a case, the court will refuse to give permission to defend the suit.
In the leading case of V. K. Enterprises v. Shiva Steels (SC 2010), the Hon’ble court stated that the main object of summary trial is to prevent unreasonable obstruction by the defendant who has no defence and to assist expeditious disposal of cases.
Moreover, in the leading case of Santosh Kumar v. Bhai Mool Singh (SC 1958), the Hon’ble court stated that the main object of this provision is to ensure that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining a decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of commercial transactions.
According to the provisions of Order 37 of Code of Civil Procedure, 1908, if the plaintiff files a suit under Order 37 and defendant admits a part of claim and seeks the permission to the defend the suit with respect to the remaining part of the claim, then in such a case, the court will not give him permission to defend the suit unless he deposits the admitted amount in the court. Moreover, according to the provisions of this Order, if the defendant does not seek permission to defend the suit, then in such a case, the court will deem that the defendant has admitted the claim and then the court will pronounce the judgment forthwith but if the defendant seeks the permission to defend the suit and court grants the permission then the court will ask him to deposit the security within the prescribed period and if the defendant fails to deposit the security within the prescribed period then in such a case, the plaintiff will be entitled to judgment forthwith.
In the leading case of Milkhiram India (P) Ltd. v. Chamanlal Bros. (SC 1965), the Hon’ble court held that it is not mandatory for the court to allow the defendant to defend the suit. It is discretion of court whether to allow the application for leave to defend or not but the discretionary power conferred upon the court should be exercised judiciously, judicially and on well- settled principles of natural justice. Wherever defence raises a ‘triable issue’, leave should be granted unconditionally.
In the leading case of V.K. Enterprises v. Shiva Steels (SC 2010), the Hon’ble court held that the test whether leave to defend should be granted or not is to see whether the defence raises a real, honest and bona fide dispute and raises a triable issue or not. If the court is satisfied that the defence has raised a triable issue or a fair dispute has arisen, leave to defend should not be refused.
According to the provisions of Code of Civil Procedure, 1908, an appeal does not lie against an order of granting or refusing leave to defend the suit under Rule 3 of Order 37. But where a decree is passed by the court in a summary trial, then an appeal can be filed against that decree.
In the leading case of Mechelec Engineers v. Basic Equipment Corpn. (SC 1977), the Hon’ble court held that an order passed under Order 37 is a ‘case decided’ under section 115 of the Code of Civil Procedure, 1908, and is revisable though a High Court generally does not interfere with the discretion exercised by the trial court.

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