Case Note & Summary
The petitioner, engaged in the business of gems and jewellery, filed a suit under Order XXXVII of the Code of Civil Procedure, 1908, seeking summary recovery of Rs. 4,14,50,000/- from the respondents, a partnership firm and its partners, who were involved in garment manufacturing and export. The amount was claimed as money lent over a period from 2006 to 2019, with interest. The dispute arose from the respondents' failure to repay, despite acknowledging the debt in reply to a legal notice. After filing the suit, the petitioner moved two interlocutory applications for issuance of summons in Form No.4 and Form No.4A of Appendix B, as required for summary suits. The trial court, after hearing arguments, issued an order directing emergent notice along with suit summons, but instead of Form No.4, it issued regular summons under Form No.1, applicable to ordinary suits. This prompted the petitioner to approach the High Court under Article 227 of the Constitution, contending that the trial court's order was illegal and defeated the purpose of the summary procedure. The High Court framed four issues: whether the issuance of regular summons was contrary to law; whether the trial court could suo motu decide maintainability at the time of issuing summons; whether the defendant had a right to be heard on maintainability before summons issuance; and whether the suit was maintainable as a summary suit. After considering the arguments, the court held that under Order XXXVII, once a summary suit is instituted, the court is bound to issue summons in Form No.4. The trial court's decision to issue regular summons and simultaneously consider maintainability was premature and without jurisdiction. The court emphasized that the defendant has no role at that stage; the summary procedure is designed for expeditious disposal, and any deviation undermines the legislative intent. Consequently, the impugned order was set aside, and the trial court was directed to issue fresh summons in Form No.4, thereby restoring the summary nature of the proceedings.
Headnote
A) Civil Procedure - Summary Suits - Issuance of Summons - Order XXXVII, Rules 1 and 2, Code of Civil Procedure, 1908 - The court held that in a summary suit, upon institution, the court is mandated to issue summons in Form No.4 of Appendix B. The trial court's action of issuing regular summons under Form No.1 was contrary to law and vitiated the summary proceedings. (Paras 8-10) B) Civil Procedure - Summary Suits - Suo Motu Maintainability Inquiry - Order XXXVII, Code of Civil Procedure, 1908 - The court held that the trial court cannot suo motu decide on the maintainability of the summary suit at the stage of issuing summons. Any inquiry into maintainability at that juncture is premature and impermissible. (Paras 8-10) C) Civil Procedure - Summary Suits - Defendant's Right of Hearing - Order XXXVII, Code of Civil Procedure, 1908 - The court held that the defendant has no right of being heard on the question of maintainability before the issuance of summary summons. The defendant's right to defend arises only after entering appearance and obtaining leave under the summary procedure. (Paras 8-10) D) Civil Procedure - Summary Suits - Maintainability - Order XXXVII, Rule 1(2), Code of Civil Procedure, 1908 - The court observed that the suit for recovery of a liquidated demand of Rs. 4,14,50,000/- based on an alleged written contract fell within the class of suits covered under Order XXXVII Rule 1(2)(b), and thus was maintainable as a summary suit. (Paras 3, 8)
Issue of Consideration
Whether the trial court erred in issuing regular summons under Form No.1 instead of summary summons under Form No.4 in a suit under Order XXXVII CPC, and whether the court can suo motu decide maintainability and hear the defendant at that stage.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 22-02-2025, and directed the trial court to issue fresh summons under Form No.4 of Appendix B of the CPC for summary trial. The court held that in a suit under Order XXXVII, the court is bound to issue summons in Form No.4 and cannot suo motu decide maintainability at that stage, and the defendant has no right of hearing before summons are issued.
Law Points
- Order XXXVII CPC
- summary suit
- summons in Form No.4 Appendix B
- no suo motu inquiry into maintainability
- defendant no right of hearing before summons
- suit for recovery of debt on written contract
- strict compliance with summary procedure
