SAI ASSOCIATES vs Sew Infrastructure Ltd

2026:MHC:4310
C.R.P. No.3412 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26-10-2026
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
C.R.P. NO. 3412 OF 2023
{CNR: HCMA011658592023}
AND
C.M.P. NO. 21175 OF 2023
M/s.Sai Associates
A Proprietorship Concern,
represented by its Proprietor -
Mr. Raghava Rao.E,
A6 and 7, SSIA, Vanagaram Road,
Athipet, Chennai 58.
…Petitioner/Plaintiff
-versus-
M/s.Sew Infrastructure Ltd
Represented by its Managing Director, No.6-3-
871 Sneha Lata Green Lands Road, Begum Pet,
Hyderabad 500 016.
…Respondent/Defendant
PRAYER:-
Civil Revision Petition filed under Article 227 of the
Constitution of India, 1950, praying to set aside the adjudication Order
dated August 14, 2023 in the Memo filed in O.S. No. 253 of 2023 on the
file of the Subordinate Judge, Ambattur.
For Petitioner(s): Mr. R.Selvakumar
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For Respondent(s): Mr.V.Santharam
O R D E R
This Civil Revision Petition has been filed under Article 227 of the
Constitution of India, 1950
2. The revision petitioner herein is the plaintiff and the respondent
herein is the defendant in O.S. No.253 of 2023 on the file of 'the
Subordinate Court, Ambattur' ['Trial Court' for short].
3. Facts leading to the filing of this Civil Revision Petition are
thus:
3.1. The plaintiff originally filed the aforesaid Original Suit before the
Subordinate Court, Poonamalle in O.S. No.411 of 2021 seeking recovery
of money from the defendant as a Summary Suit under Order XXXVII of
'the Code of Civil Procedure, 1908' ['C.P.C.' for short]. In the plaint, the
plaintiff has specifically has mentioned so as per Order XXXVII Rule 2 of
C.P.C. The defendant, after service of summons, was set ex-parte on
November 9, 2022.
3.2. Thereafter, the Original Suit was transferred to the Trial Court
and renumbered as O.S. No.253 of 2023. In the Trial Court, the matter
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came to be posted for ex-parte evidence on April 6, 2023. Thereafter, the
defendant filed I.A. No.1 of 2023 in the Original Suit praying to set aside
the Ex-parte Order along with a written statement. In view of the
endorsement of the plaintiff's Counsel before the Trial Court made in the
said Interlocutory Application as to no objection, the Trial Court allowed
the Interlocutory Application, set aside the Ex-parte Order and took the
written statement on file.
3.3. Subsequently, on July 14, 2023, the plaintiff's Counsel filed a
memo objecting to the acceptance of the written statement onto the file
without following the procedure contemplated under Order XXXVII Rule
3 (3) of C.P.C. The Trial Court on August 14, 2023 rejected the said memo
by passing the following the Adjudication / Docket Order:
"Memo in OS - On perusal of records bundle
received from SC, PNE. Even in this court summon
procedure was not followed and no objection was
raised by the plaintiff when case posted for written
statement. Hence written statement filed. Hence now
plaintiff cannot retract to summon [sic] procedure.
Memo rejected. For clarification of leave to defend
petition, plaintiff counsel present. Memo rejected,
Defendant absent. No representation. For issues call
on 18.09.2023."
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3.4. Assailing the same, the present Civil Revision Petition has been
filed.
4. Learned Counsel for the revision petitioner / plaintiff submits that
the Original Suit was duly filed under Order XXXVII of C.P.C. as a
Summary Suit. Summons prescribed under Order XXXVII Rule 2 (2) of
C.P.C. [Form No.4 in Appendix B] was duly served on the defendant. The
defendant did not appear and hence he was placed ex-parte on November
9, 2022. The Subordinate Court, Poonamalle, which was the then Trial
Court, upon placing the defendant ex-parte , ought to have decreed the Suit
under Order XXXVII Rule 2 (3) of C.P.C., but failed to do so and
moreover, erroneously went on to post the matter for recording ex-parte
evidence.
4.1. He would further submit that when the matter was thereafter
transferred to the Trial Court, renumbered as O.S. No.253 of 2023 and
posted for ex-parte evidence, the defendant instituted I.A. No.1 of 2023
and the same was allowed [as elaborated supra ].
4.2. He would invite attention to Order XXXVII Rule 3 of C.P.C. and
contend that, the Trial Court failed to follow the procedure contemplated
thereunder. He would contend that the endorsement of no objection made
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by the plaintiff's Counsel before the Trial Court was only for setting aside
the Ex-parte Order and not for the written statement. In any event, the Suit
having been filed duly as a Summary Suit, the Trial Court upon setting
aside the Ex-parte Order, ought to have directed the defendant to give
notice of appearance to the plaintiff's Counsel as contemplated under Order
XXXVII Rule 3 (3) of C.P.C. If such a course had been followed, the
plaintiff would have served on the defendant a summon for Judgment as
per Order XXXVII Rule 4 of C.P.C. [Form No.4-A in Appendix B].
Whereafter, the defendant may choose to file an application seeking leave
to defend the Suit and only upon the same being allowed, the defendant
can file written statement and not otherwise.
4.3. He would submit that the Trial Court committed a gross error in
not following the above procedures set out by law and erred in taking the
written statement on file. Accordingly, he would pray to set aside the
Adjudication Order passed in the memo and direct the Trial Court to
follow the procedure contemplated under XXXVII Rule 3 of C.P.C.
5. In response to the above arguments, learned Counsel for the
respondent / defendant would contend that, the defendant filed I.A. No.1 of
2023 along with the written statement [as elaborated above]. By endorsing
no objection on the same and receiving a copy of the written statement, the
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plaintiff's side waived off the procedures contemplated under Order
XXXVII of C.P.C. and thereby waived off the special status of the Suit.
From that point onwards, the Suit is to be treated as an Ordinary Suit and
not as a Summary Suit. Considering the same, the Trial Court rightly
rejected the plaintiff's memo. There is no irregularity or illegality with the
same. Accordingly, the learned Counsel prays to dismiss the Civil Revision
Petition with costs.
6. Heard on either side. Perused the materials available on record.
7. For ready reference, Order XXXVII Rules 2 and 3 of C.P.C. are
extracted hereunder:
"ORDER XXXVII
SUMMARY PROCEDURE
1. x-x-x x-x-x x-x-x
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
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(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.
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
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within ten days of such service, enter an appearance
either in person or by 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.
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(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
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(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 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. "
8. From a perusal of the plaint, averments to the effect that the plaint
is filed under Order XXXVII of C.P.C. and to the effect that no relief not
falling under the ambit of Order XXXVII of C.P.C. has been claimed, are
found along with the necessary inscription below the Suit number.
Thereby, Order XXXVII Rule 2 (1) has been duly followed.
9. The next step is summons for appearance and Order XXXVII
Rules 2 (2) and 3 (1) of C.P.C. gains relevance at this point. Said Rule 2 (2)
provides that summons in a Summary Suit shall be in Form No.4 in
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Appendix B in C.P.C. Said Rule 3 (1) provides that the plaintiff must serve
a copy of the plaint and any annexures thereto along with the summon
under said Rule 2 (2).
10. There is a misconception that upon institution of a Summary
Suit, the plaintiff must first serve summon on the defendant in said Form
No.4 for appearance and thereafter, if the defendant enters appearance
within 10 days of such service, then the plaintiff must once again serve the
said summon along with a copy of the plaint and the plaint annexures if
any. That is not the case and bare reading of the said Order XXXVII Rule
3 (1) would clarify it. Said Rule 3 (1) starts with the line " 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…" . It is clear that said Rule 3 (1) speaks of any Suit
under Order XXXVII of C.P.C. Syntactically, in said Rule 3 (1), it is to be
noted that the part relating appearance of the defendant is positioned after
the requirement on the part of the plaintiff to serve summon in said Form
No.4 along with copy of plaint and annexures thereto. The sequence in
which the clauses are arranged, makes it clear that the summons under
Order XXXVII Rule 2 (2) must be accompanied by a copy of the plaint
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and the annexures thereto at the first instance itself and that the provision
does not contemplate a service of the said summon in Form No.4 for the
second time along with the plaint and plaint documents. Further, on a
lighter note, the choice of words employed in Order XXXVII Rule 3 (1)
supports the above interpretation; said Rule 3 (1) employs the words
"summons under rule 2" rather than "a copy of the summon under rule 2",
which is in consonance with this Court's interpretation that a copy of the
plaint and the plaint annexures must be sent along with the said summon in
Form No.4 upon institution of the Suit itself and that the said summon in
Form No.4 is not required to be served for the second time. Hence, the
aforesaid misconception remains a misconception.
11. In simpler terms, Order XXXVII Rule 2 (2) and Order XXXVII
Rule 3 (1) must be read conjointly and a conjoint reading would show that
upon institution of a Summary Suit, the plaintiff must serve summon on
the defendant in said Form No.4 in Appendix B along with the plaint and
the annexures thereto and the defendant may enter appearance within 10
days from receipt of such summons. Said Rule 2 (2) and said Rule 3 (1)
are both mandatory provisions in so far as summons is concerned. Upon
compliance with the same by the plaintiff i.e., upon serving of said
summon in Form No.4 in Appendix B under Order XXXVII Rule 2 (2)
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along with plaint and any annexure thereto, if the defendant fails to enter
appearance within 10 days from the date of service, the Trial Court shall
pass Judgment under Order XXXVII Rule 2(3) of C.P.C. On the other
hand, upon due compliance of Order XXXVII Rule 2 (2) read with Order
XXXVII Rule 3 (1), if the defendant appears within 10 days of service, the
defendant ought to furnish his address for service before the Court as per
Order XXXVII Rule 3(1) of C.P.C. and further, the defendant ought to
furnish notice of appearance along with address for service to the plaintiff
or the plaintiff's Counsel as per Order XXXVII Rule 3(3) of C.P.C.
Whereafter, the plaintiff ought to serve summons for Judgement under
Order XXXVII Rule 3 (4) of C.P.C. [Form No.4-A in Appendix B] along
with an affidavit verifying the cause of action and the amount claimed and
also stating that, there is no defence to the Suit in his/her plea. Upon
receipt of the same, within 10 days therefrom, the defendant may choose to
pray for leave of the Court to defend the Suit under Order XXXVII Rule
3(5) of C.P.C. and it is then upto the Court to decide if the defendant has
any substantial defence or not. If the Court grants leave to defend the Suit
conditionally or unconditionally, then the defendant may file a written
statement.
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12. If the plaintiff fails to follow the procedures contemplated under
Order XXXVII Rules 2 and 3, the Suit would not get dismissed
automatically. On the other hand, it would lose its special nature of
Summary Suit and would be tried as a Regular Suit. For instance, if the
plaintiff fails to serve the plaint and the annexures thereto along with the
said summon in Form No.4 in Appendix B and the defendant fails to
appear within the stipulated time, then the Suit would not be decreed
automatically under Order XXXVII Rule 2 (3) of C.P.C., rather it would
proceed as a Regular Suit by placing the defendant as ex-parte , recording
ex-parte evidence and thereafter, passing Judgment on merits.
13. Coming to the case on hand, there are no sufficient evidence or
materials available on record before this Court to show whether summon
under Order XXXVII Rule 2 (2) of C.P.C. [Form No.4 in Appendix B] was
served on the defendant along with a copy of the plaint and the plaint
annexures as required under Order XXXVII Rule 3 (1), which is vital for a
Suit to be considered as a Summary Suit. Further, I.A. No.1 of 2023 was
filed only to set aside the Ex-parte Order and does not have anything to do
with the written statement. It is on that Interlocutory Application, the
plaintiff's Counsel made an endorsement of no objection and hence,
technically, it cannot be said that, the plaintiff's Counsel raised no
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objection to taking on record the written statement and thereby conceded
to conduct the Suit as a Regular Suit. In view of the above, this Court is
inclined to set aside the Adjudication Order dated August 14, 2023 passed
by the Trial Court on the memo filed by the plaintiff's side, and to direct
the Trial Court to consider the memo afresh in light of the above
observations qua the procedures contemplated under Order XXXVII of
C.P.C.
14. Resultantly, the Civil Revision Petition is allowed to the extent
indicated above. In view of the facts and circumstances of this case, there
shall be no order as to costs. Consequently, connected Civil Miscellaneous
Petition is closed.
26-10-2026
Index:Yes
Speaking Order
Neutral Citation: Yes
JRS
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2026:MHC:4310
C.R.P. No.3412 of 2023
R.SAKTHIVEL J.
JRS
To
The Subordinate Judge, Ambattur.
CRP No. 3412 of 2023
AND
CMP NO. 21175 OF 2023
26-10-2026
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