An Order XXXVII suit cannot be converted into an ordinary suit without verifying service of notice of appearance.

The petitioner, the plaintiff in the suit, supplied shuttering materials under work orders issued by the first defendant for a site belonging to the second defendant.

After the defendants allegedly failed to pay Rs.10,15,180, the plaintiff filed a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 (CPC).

The defendants entered vakalat, but the record did not establish whether they had served notice of appearance on the plaintiff.

The Commercial Court treated the matter as an ordinary commercial suit, reasoning that the plaintiff had not served summons for judgment and the defendants had not sought leave to defend.

The plaintiff challenged that order under Article 227 of the Constitution.

Whether the Commercial Court was justified in converting the Order XXXVII summary suit into an ordinary commercial suit without first determining whether the defendants had served notice of appearance on the plaintiff.

What procedure should follow depending on whether notice of appearance was served.

Order XXXVII Rule 2 CPC requires a summary suit to meet the prescribed pleading and summons requirements; where the defendant fails to enter appearance, the plaint allegations are deemed admitted and the plaintiff may be entitled to a decree.

Under Order XXXVII Rule 3, the defendant may enter appearance within ten days of service of the summons and must give notice of that appearance to the plaintiff; only thereafter does the plaintiff serve summons for judgment, following which the defendant may apply for leave to defend.

The Court treated Order XXXVII as a special procedure whose requirements must be followed, and held that the court must ascertain whether notice of appearance was served before deciding the next procedural course.

The Commercial Court concluded that the parties had not followed Order XXXVII because the plaintiff had not served summons for judgment and the defendants had not applied for leave to defend.

But neither the plaintiff’s memo nor the first defendant’s reply addressed whether notice of appearance had been served, and the Commercial Court made no finding on that threshold question.

Since service of notice of appearance determines whether the plaintiff’s obligation to serve summons for judgment arises, the Court held that the suit could not properly be converted based on the existing record.

The Commercial Court was also found to have proceeded from the outset as though the case were an ordinary commercial suit, without accounting for its institution under Order XXXVII.

It directed the Commercial Court to verify whether the defendants had served notice of appearance on the plaintiff.

If service is established, the suit is to proceed as an ordinary commercial suit; if not, the defendants are to be given one further opportunity, within a time fixed by the Commercial Court, to serve notice of appearance, after which the proceedings are to continue under Order XXXVII as a summary suit.

No costs were ordered, and the connected miscellaneous petition was closed.