Order 37 Suit Loses Summary Status If Plaint Is Not Served With First Summons, Madras HC Says

In brief

The question

1. Whether the plaintiff’s “no objection” to setting aside the ex parte order amounted to waiver of the summary procedure or consent to treating the suit as an ordinary suit

The court held

The High Court allowed the revision to the extent of setting aside the Trial Court’s order dated 14 August 2023 and directing the Trial Court to reconsider the plaintiff’s memo in light of the Court’s observations on Order XXXVII.

It also directed

It did not finally determine whether the suit was a summary suit or whether the written statement could remain on file.

There was no order as to costs, and the connected miscellaneous petition was closed.

01Facts

The plaintiff instituted a money-recovery suit as a summary suit under Order XXXVII CPC. After the defendant was set ex parte, the suit was transferred and renumbered.

pp. 2–5

The defendant then obtained an order setting aside the ex parte order and filed a written statement; the plaintiff’s counsel had endorsed “no objection” to the application to set aside the ex parte order.

pp. 2–5

The plaintiff later objected by memo to the written statement being taken on file without compliance with Order XXXVII. The Trial Court rejected the memo, reasoning that the plaintiff had not objected earlier and could not revert to summary procedure.

pp. 2–5

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

pp. 2–5

02Issues

i.1. Whether the plaintiff’s “no objection” to setting aside the ex parte order amounted to waiver of the summary procedure or consent to treating the suit as an ordinary suit

p. 14

ii.2. Whether the Trial Court could reject the plaintiff’s memo and retain the written statement without determining whether the summons and accompanying plaint materials had been served in compliance with Order XXXVII

pp. 13–14

03Law Applied

Order XXXVII Rule 2(1) CPC requires a summary-suit plaint to contain the prescribed averments and inscription; Rule 2(2), read with Rule 3(1), requires service of the prescribed summons together with a copy of the plaint and its annexures.

pp. 10–12

If those requirements are met and the defendant fails to enter appearance within the prescribed time, the plaintiff may be entitled to a decree under Rule 2(3).

pp. 7–13

If the defendant appears, the procedure under Rule 3 applies: notice of appearance is given to the plaintiff, who then serves a summons for judgment; the defendant may apply for leave to defend, and a written statement may follow if leave is granted.

pp. 7–13

If the plaintiff fails to comply with the requirements governing summary procedure, the suit does not automatically fail but loses its summary character and proceeds as an ordinary suit.

p. 14

04Reasoning

The Court found that the plaint contained the averments and inscription required by Rule 2(1), but the record did not establish whether the prescribed summons had been served with the plaint and annexures—a fact material to determining whether the suit retained its summary character.

p. 10, 14

The defendant’s application sought to set aside the ex parte order, and the plaintiff’s counsel’s “no objection” on that application did not, by itself, establish consent to placing the written statement on record or waiving the summary procedure.

p. 14

Because the Trial Court had not resolved the service question, the High Court directed it to reconsider the memo in light of the requirements of Order XXXVII.