KANHAIYA LAL MENARIYA vs BABU LAL JANVA

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HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 16148/2022
CNR: RJHC010740802022 | URN: CW / 32104U / 2022
Kanhaiya Lal Menariya S/o Shri Devi Lal Menariya, Aged About
41 Years, 173, Dagliyon Ki Magri, Bhuwana, Tehsil Badgaon,
District Udaipur (Raj.).
----Petitioner
Versus
Babu Lal Janva S/o Late Shri Sita Ram Javna, Aged About 37
Years, 262, Gali No. 11, Behind Government School,
Krishnapura, Tehsil Girwa, District Udaipur (Raj.) Village Address
Village Gothda, Thesil Chhoti Sadri, District Pratapgarh (Raj.).
----Respondent
For Petitioner(s) : Mr. Avin Chhangani
Ms. Anjali Garg
For Respondent(s) : Mr. R.S. Mankad
HON'BLE MR. JUSTICE FARJAND ALI
Order
REPORTABLE
DATE OF CONCLUSION OF ARGUMENTS : 03/08/2026
DATE ON WHICH ORDER IS RESERVED : 03/08/2026
FULL ORDER OR OPERATIVE PART : Full Order
DATE OF PRONOUNCEMENT : 29/10/2026
BY THE COURT:-
1. The superintending jurisdiction of this Court under Article
227 of the Constitution of India has been invoked by the petitioner
having aggrieved of the order dated 27.09.2022 passed by the
learned Additional District Judge No.1, Udaipur in Civil Original
Suit No.32/2022 whereby the learned trial Court had ordered to
issue fresh summon under Order 37 rule 3 of the CPC.
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2. Briefly stated the facts of the case are that the petitioner-
plaintiff instituted a summary suit under Order XXXVII CPC for
recovery of Rs. 11,00,080/- from the respondent-defendant,
alleging that the amount had been advanced to him against duly
executed receipts. After service of summons and entering
appearance, the respondent-defendant acknowledged his liability
by executing a receipt dated 02.05.2022 and subsequently
entered into a compromise agreement dated 23.05.2022 before
the ADR Centre, agreeing to pay Rs. 1 lakh per month. However,
after making an initial payment of Rs. 1 lakh, the respondent-
defendant defaulted in making further payments. Despite due
service of summons under Order XXXVII Rule 3 CPC, the learned
Trial Court, vide order dated 27.09.2022, directed issuance of
fresh summons under the said provision, which has been assailed
by the petitioner-plaintiff in the present writ petition.
3. Heard learned counsels appearing on behalf of the parties
and perused the material available on record.
4. The controversy involved in the present petition pertains to
the procedure prescribed for adjudication of a summary suit under
Order XXXVII of the CPC particularly the consequences flowing
from service of summons under Rules 2 and 3 thereof. The
petitioner-plaintiff instituted a summary suit for recovery of the
amount in question. Pursuant to the institution of the suit,
summons under Order XXXVII Rule 2 CPC were issued and served
upon the respondent-defendant on 07.04.2022. Thereafter,
summons under Order XXXVII Rule 3 CPC, along with the requisite
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affidavit, were also duly served upon the respondent-defendant on
22.04.2022. The respondent-defendant entered appearance
through counsel on 25.04.2022.
5. At this juncture, it would be apposite to reproduce the
relevant provisions of Order XXXVII Rules 2 and 3 CPC, which
govern the procedure in a summary suit. For ready reference,
Order XXXVII Rule 2 and 3 of CPC are reproduced herein below:-
Order XXXVII Rule 2 CPC
2. Institution of summary suits.— (1) A suit, to which
this Order 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 this Order;
(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 in the title of the suit, namely:—
“(Under Order XXXVII of the Code of Civil
Procedure, 1908).”
(2) The summons of the suit shall be in Form No. 4 in
Appendix B or in such other Form as may, from time to
time, be prescribed.
(3) The defendant shall not defend the suit referred to
in sub-rule (1) 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.
Order XXXVII Rule 3 CPC
3. Procedure for the appearance of defendant.— (1) In
a suit to which this Order applies, the plaintiff shall,
together with the summons under rule 2, serve on the
defendant a copy of the plaint and annexures thereto and
the defendant may, at any time within ten days of such
service , enter an appearance either in person or by
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pleader and, in either case, he shall file in Court an address
for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices
and other judicial processes, required to be served on the
defendant, shall be deemed to have been duly served on
him if they are left at the address given by him for such
service.
(3) On the day of entering the appearance, notice of
such appearance shall be given by the defendant to the
plaintiff’s pleader, or, if the plaintiff sues in person, to the
plaintiff himself, either by notice delivered at or sent by a
pre-paid letter directed to the address of the plaintiff's
pleader or of the plaintiff, as the case may be.
(4) If the defendant enters an appearance, the
plaintiff shall thereafter serve on the defendant a summons
for judgment in Form No. 4A 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.
(5) 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 or Judge to be just: Provided that 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 raise or that the defence
intended to be put up by the defendant is frivolous or
vexatious:
Provided further that, where a part of the amount
claimed by the plaintiff is admitted by the defendant to be
due from him, leave to defend the suit shall not be granted
unless the amount so admitted to be due is deposited by
the defendant in Court.
(6) 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 and 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
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been given by the Court or Judge, the plaintiff shall be
entitled to judgment forthwith.
(7) 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.
5.1 A bare perusal of the aforesaid provisions makes it
abundantly clear that the procedure prescribed for a summary suit
is not an empty formality but a special procedural mechanism
intended to ensure expeditious adjudication of claims falling within
its ambit. The statutory consequences flowing from the service of
summons and the failure of the defendant to seek leave to defend
within the prescribed period cannot be diluted merely because the
parties, during the pendency of the proceedings, choose to
explore the possibility of an amicable settlement.
5.2 Order XXXVII Rule 3(5) of CPC envisages a specific and time-
bound opportunity for the defendant to seek leave to defend a
summary suit. Upon service of summons for judgment, the
defendant is required to apply for leave to defend within ten days,
by filing an affidavit or otherwise disclosing such facts as may be
sufficient to justify the grant of such leave. The object of this
provision is to ensure that a defendant who raises a bona fide and
legally tenable defence is afforded an opportunity to contest the
claim, while preventing the summary procedure from being
frustrated by inaction or delay. The grant of leave to defend,
whether unconditional or subject to such terms as the Court may
deem just, rests upon judicial consideration of the facts disclosed
by the defendant. However, where no application seeking leave to
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defend is made within the prescribed period, the statutory
consequences contemplated under Order XXXVII CPC follow,
subject to the provisions of law governing the matter.
5.3 The record reveals that on 19.05.2022, the learned counsel
appearing for the parties apprised the learned Trial Court that they
were desirous of entering into a compromise. Accordingly, the
matter was referred to the District Legal Services Authority for
exploring the possibility of settlement. Pursuant thereto, a
compromise agreement was entered into between the parties on
23.05.2022.
5.4 When the matter was taken up on 27.06.2022, the learned
Trial Court recorded the factum of settlement and the terms
agreed upon between the parties. It was specifically stipulated in
the order-sheet that, in the event of failure on the part of the
defendant to deposit the agreed amount in instalments, the
amount already paid would be taken on record and the suit
proceedings would continue as they stood prior to the settlement.
Conversely, upon payment of the entire agreed amount, the
plaintiff would withdraw the suit. However, the settlement did not
culminate in the discharge of the entire liability. The respondent-
defendant made an initial payment of Rs. 1,00,000/- but failed to
adhere to the agreed schedule of instalments thereafter. The
respondent-defendant also remained unrepresented on
subsequent dates of hearing. Eventually, on 27.09.2022, when the
matter was taken up by the learned Trial Court, the learned
counsel appearing for the defendant apprised the Court that the
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instalments stipulated under the compromise had not been paid.
Despite the fact that summons under Order XXXVII Rule 3 CPC
had already been duly served upon the respondent-defendant, the
learned Trial Court proceeded to direct the issuance of fresh
summons under the very same provision.
5.5 This Court finds itself unable to subscribe to the course
adopted by the learned Trial Court. Once the summons
contemplated under Order XXXVII Rule 3 CPC had been duly
served upon the respondent-defendant, the statutory
consequences attached to such service were required to be
considered in accordance with law. The subsequent reference of
the matter to the ADR Centre, or the parties endeavour to
amicably resolve their dispute, could not, by itself, efface the legal
consequences already set in motion under the special procedure
governing summary suits.
5.6 The compromise agreement was entered into voluntarily by
the parties, and the order-sheet itself provided for the eventuality
of default. The defendant, having availed the opportunity to settle
the dispute and having failed to honour the terms of the
settlement, could not, merely on account of such intervening
proceedings, claim an automatic revival of procedural
opportunities that had already arisen under the statutory scheme.
The very purpose of incorporating a specific stipulation regarding
the consequences of default was to ensure that the suit would
resume in accordance with law in the event of failure to honour
the settlement.
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5.7 It is equally significant that, on 27.09.2022, the learned
counsel for the respondent-defendant was present before the
learned Trial Court and the default in payment under the
compromise had been brought to its notice. In these
circumstances, the issuance of fresh summons under Order
XXXVII Rule 3 CPC, without accounting for the earlier service
thereof and the statutory consequences arising therefrom, cannot
be sustained.
6. The mandate of law cannot be made subservient to the
procedural course adopted by the parties during the pendency of
litigation. A settlement may afford the parties an opportunity to
resolve their dispute, but it cannot, in the absence of any enabling
provision, operate to suspend, erase or indefinitely defer the
consequences prescribed by the statute. Nothing in the procedure
governing summary suits suggests that the statutory mandate
stands relaxed merely because the proceedings were, for a period,
directed towards an amicable settlement.
6.1 The conduct of the respondent-defendant in entering into a
compromise and thereafter failing to honour the agreed terms is
also a relevant circumstance. Nevertheless, the matter does not
rest merely upon the conduct of the parties; it rests upon the
obligation of the Court to ensure adherence to the procedure
prescribed by law. The Court cannot, by directing the issuance of
summons afresh, overlook the fact that the requisite summons
had already been duly served on 07.04.2022 and 22.04.2022,
respectively.
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7. In view of the foregoing discussion, this Court is of the
considered opinion that the order dated 27.09.2022, to the extent
it directs the issuance of fresh summons under Order XXXVII Rule
3 CPC, suffers from an error warranting interference by this Court.
8. Accordingly, the present writ petition is allowed. The
impugned order dated 27.09.2022 is hereby set aside. It shall be
deemed that the summons under Order XXXVII Rule 3 CPC stood
duly served upon the respondent-defendant and that no
application seeking leave to defend was filed within the prescribed
period. The learned Trial Court shall, therefore, proceed with the
suit in accordance with the mandate of Order XXXVII CPC and
pass appropriate orders in accordance with law.
9. All pending applications, if any, stand disposed of
accordingly.
(FARJAND ALI),J
Crt_7 (1763)
S/352
Mamta Tak
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