Difference between Summary Suits and Ordinary Suits
1. Summary suits can be filed in matters related to bills of exchange, hundies, promissory notes, recovery of debt and liquidated demands and guarantees of specified nature. It is restricted to negotiable instruments. The suit is not maintainable if it exceeds specific matters, whereas there are no such restrictions in ordinary suits. A civil suit can be filed related to any matter before the law. In ordinary suits, the scope is much wider than the summary suits.
2. The cause of summary suit is filed under Order XXXVII of CPC, 1908, whilst in an ordinary suit, the cause is filed under section 26, Order VI, Rule 1 of CPC, 1908.
3. Section 10 of CPC i.e. doctrine of res sub judice is not applicable if a summary suit can be constituted on the matter directly or subsequently in issue in a previous ordinary suit, whilst in ordinary suits the doctrine is applicable i.e. one cannot file a suit directly or subsequently in issue in a previous suit.
4. In a summary suit, the defendant has to prove his case or enter an appearance within ten days after receiving the copy of plaint from the plaintiff (Order XXXVII Rule 3), whereas in ordinary suits the defendant has the time limit of thirty days after receiving the plaint from the plaintiff. In this case, Shah Mohamed Khan vs H.N. Woodfall on 18
March 1955, the Madras High Court held that sections 4 to 25 of the Limitation Act are not applicable on Order XXXVII, Rule 3 of CPC. Therefore, the court has no power to extend after ten days prescribed under Article 159. There is no such appeal or application to extend the time limit except fraud is alleged by the opposite counsel (Section 19 Limitation Act) which was later challenged in ‘Kamalamma v. Ismail and ‘Srinivasan v. Bhaktavatsalu Naidu’, questioning the validity of Article 159 of Limitation act over Order XXXVII. The only question before the Court is whether an application for condoning the delay in applying for Order 37, Rule 3 is maintainable, and if so, under what provision. The only conclusion made was the court had no power to condone the delay in applying for Order XXXVII.
5. In the summary suit, the defendant has no right to defend the suit unless the court grants conditional or unconditional leave to defend the suit.
Defendant has to present the affidavit before the court (Order XXXVII, Rule 5) disclosing the subsequent defence, whilst in an ordinary suit, the defendant has the right to defend the suit and there is no need to ask for leave to defend the suit.
In Milkhiram (India) Private Ltd. vs. Chamanlal Bros it was held by the Supreme Court of India that the discretion of the trial court to grant the leave can be questioned if the defendant fails to disclose the reasonable defence. In Kiranmoyee Dassi v. J. Chatterjee, certain principles were laid down by the Calcutta High Court that if the defendant satisfies the court that he has good defence opposing the merits presented by the plaintiff to grant the judgement or defendant has fair, bonafide or reasonable defence then the court may grant unconditional leave to defend. A leave to defend should not be granted on the grounds when the defence presented by the court is illusionary or admitted by the defendant in the court.
6. In summary suits, an ex-parte decree can be passed to the plaintiff if the defendant does not make an appearance in the court or refuse to defend the suit, whereas in ordinary suit multiple summonses are served to the defendant when an ex-parte decree is passed. In the summary suit, the decree is passed under Order XXXVII, Rule 4, whereas in an ordinary suit, the decree is passed under Order IX, Rule 13.
7. In the summary suits, setting aside an ex-parte decree is much more stringent. The defendant has to show special circumstances for non-appearance in court, whereas in ordinary suits, sufficient cause for non-appearance in court has to be shown.
These two terms were discussed in Karumilli Bharathi v. Prichikala. A special circumstance is a situation when it becomes nearly impossible for a defendant to appear in court. For example, a person was on his way to the court, but his car got punctured, so he could not appear in the court, this is a specific cause. On the other hand, Due to the curfew in the city, it was almost impossible for him to appear in the court, this is an example of special circumstances. If the defendant makes out special circumstances and the court finds it reasonable, the decree can be set aside. Order 9 Rule 13 deals with the specific cause for the non-appearance of the defendant in the court, the court may set aside the decree ex-parte against him.
REFERENCES
1. Shah Mohamed Khan vs H.N. Woodfall on 18 March 1955, AIR 1955 Mad 637,
2. (1955) 2 MLJ 333
3. Karumili Bharathi v. Prichikala Venkatchalam 1999 (3) ALD 366
4. Precision Steel & Engg. Works vs Prem Deva Niranjan Deva 1982 Air 1518
5. http://www.legalservicesindia.com/article/1514/Order-37,-CPC,-Summary-Suit s.html
6. https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxxvii-code-of-civil-p rocedure-rule-1-2-3-4-5-6-7-summary-procedure-order-37-of-cpc-1908-code-o f-civil-procedure.html
7. https://www.scconline.com/blog/post/tag/order-37-cpc/
8. https://blog.ipleaders.in/summary-suits-when-and-why-can-they-be-filed/
9. https://www.casemine.com/search/in/order%2037%20c%28DOT%29p%28DO
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Author: Roshni Agarwal,
Amity Law School, Noida, 1st year,