Summary Suit Maintainability Barred Where Reliefs Claimed Fall Outside Scope of Order XXXVII CPC

The plaintiff filed Summary Civil Suit No. 15 of 2008 for the recovery of ₹53,00,000/- based on a promissory note and six dishonored cheques.

Crucially, the plaintiff also sought a permanent injunction to restrain the defendants from transferring immovable property and an order regarding the custody of original sale deeds.

Summons were issued under the summary procedure of Order XXXVII Rule 2(2) of the CPC. When the defendants failed to enter an appearance within the prescribed 10-day period, the Trial Court proceeded ex-parte and passed a decree for the monetary amount plus 18% interest.

The defendants appealed, contending the suit was not maintainable as a summary suit due to the nature of the reliefs claimed.

1. Whether the suit of the plaintiff is maintainable under Order XXXVII of the Code of Civil Procedure (CPC), 1908, as a summary suit given the inclusion of prayers for injunctive relief?

Order XXXVII, Rule 1(2) of the CPC, which restricts summary suits to claims based on bills of exchange, hundies, promissory notes, or liquidated debts arising from written contracts/enactments.

Order XXXVII, Rule 2(1)(b), which mandates that a summary suit must contain an averment that "no relief, which does not fall within the ambit of this rule, has been claimed in the plaint".

The Court followed the principles from Sicom Ltd. v. Prashant S. Tanna [AIR 2004 Bom 186] and J.N. Education Society v. Sangitaben N. Thakker [First Appeal No. 1700/2006], which establish that if a plaintiff includes non-summary reliefs, they must either abandon those claims at an appropriate stage (recorded by the court) or the suit must be treated as a regular suit.

The Court examined the prayers in paragraphs 15(1) and 15(3) of the plaint, which sought a permanent injunction and directions regarding the custody of sale deeds. It held that these reliefs are outside the scope of Order XXXVII, which is strictly limited to liquidated money demands.

Under Rule 2(1)(b), the inclusion of such reliefs renders the summary procedure inapplicable unless those claims are formally abandoned. In this case, the plaintiff did not abandon the additional claims, nor did the Trial Court record any such abandonment.

Consequently, the Trial Court erred by issuing summons in Form No. 4 (Summary Summons) rather than regular summons. By treating the matter as a summary suit, the Court deprived the defendants of the procedural safeguards available in a regular suit, such as the right to file a written statement without seeking leave to defend.

The High Court quashed and set aside the Judgment and Decree dated 11.09.2008. The matter was remanded to the Trial Court with directions to treat it as a regular money suit, permit the defendants to file a written statement, and allow both parties to lead oral and documentary evidence. The Trial Court was directed to decide the suit expeditiously, preferably within one year.