1 Reserved on : 23.07.2025 Pronounced on : 13.08.2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.15840 OF 2025 (GM - CPC) BETWEEN: MR.C.GANESH NARAYAN S/O LATE MR.C.V.NARAYAN, AGED ABOUT 46 YEARS, R/AT NO. 44, OSBORNE ROAD, ULSOOR, BENGALURU – 560 042. ... PETITIONER (BY SRI DHANANJAY V.JOSHI, SR.ADVOCATE A/W SMT.KRUTIKA RAGHAVAN, ADVOCATE) AND: 1 . M/S. COMMON THREADS PARTNERSHIP FIRM (PAN NO. AAFFC1918G) OFFICE AT 121-122, 2ND CROSS, TELECOM LAYOUT, SRIRAMPURA, JAKKUR POST, BENGALURU – 560 038. REPRESENTED BY ITS PARTNER R 2 MRS. SMITHA ZACHARIAH, 2 . MRS. SMITHA ZACHARIAH, AGED ABOUT 48 YEARS W/O MICHAEL PIERS, R/AT NO.9, 1ST FLOOR, 1ST MAIN, 4TH CROSS, DEFENCE COLONY, INDIRANAGAR BENGALURU – 560 038. 3 . MR. MICHAEL PIERS, AGED ABOUT 54 YEARS S/O M.C.PIERS R/AT NO. 9, 1ST FLOOR, 1ST MAIN, 4TH CROSS, DEFENCE COLONY, INDIRANAGAR BENGALURU – 560 038. ... RESPONDENTS (BY SRI S.SRIVATSA, SR.ADVOCATE FOR SMT.UDITA RAMESH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) SET ASIDE THE ORDER DATED 22/02/2025 IN OS NO. 7263/2024 BEFORE XXIV ADDL. CITY AND CIVIL AND SESSIONS COURT, BENGALURU (CCH-6) VIDE I.A.NO.1 (ANNEXURE – A). ; B) TO DIRECT THE TRIAL COURT TO ISSUE FRESH SUMMONS UNDER FORM NO. 4 OF APPENDIX B OF THE CODE OF CIVIL PROCEDURE, 1908 IN OS NO. 7263/2024 BEFORE XXIV ADDL. CITY AND CIVIL AND SESSIONS COURT, BENGALURU (CCH-6), ANNEXURE – A IN ACCORDANCE WITH LAW. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.07.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 3 CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner/plaintiff is before this Court calling in question an order dated 22-02-2025 passed by the XXIV Additional City Civil & Sessions Judge, Bengaluru in O.S.No.7263 of 2024, whereby the concerned Court issues regular suit summons instead of summary suit summons. The form in which the summons is issued has become the fulcrum of the subject lis. 2. Heard Sri Dhananjay V. Joshi, learned senior counsel appearing for the petitioner and Sri S. Srivatsa, learned senior counsel appearing for the respondents/defendants. 3. Facts, in brief, germane are as follows: - The petitioner/plaintiff is engaged in the business of gems and jewellery. 1st defendant is a partnership firm and other defendants are its partners. The partnership firm is engaged in the business of manufacturing and exporting readymade garments. The transaction narrated in the case at hand span over a period of 13 4 years between 2006 and 2019. It is the case of the plaintiff that defendants approached him for a loan/funds for expansion of their business on the premise that the business was running successfully. Through the years, the petitioner is said to have loaned different amounts of money on different dates. Several disputes between the two arose with regard to repayment of money. The petitioner then caused a legal notice on 12-03-2020 calling upon the defendants to pay `24,14,50,000/- along with interest at 18% p.a. On 18-05-2020 the defendants are said to have replied to the legal notice acknowledging the fact that they owe a loan amount of `24.50 crores along with interest and that they were willing to give equity to the petitioner in their Company. The matter did not materialize. The petitioner then, is said to have knocked at the doors of the learned Magistrate invoking Section 200 of the Cr.P.C. The learned Magistrate orders investigation under Section 156(3) of the Cr.P.C. Whether the matter is pending investigation or otherwise, is not the issue in the present lis. 3.1. After all the aforesaid events, the petitioner files a suit in O.S.No.7263 of 2024 under Order XXXVII of the CPC for a summary 5 trial. The concerned Court after hearing the arguments of the petitioner/plaintiff and the application, posts the matter for interim order. In terms of the impugned order, the Court issues summons in Form No.1 of Appendix-B of the CPC, which according to the petition averments ought to have been issued under Form No.4 of Appendix-B of the CPC. Pursuant to the receipt of summons, the defendant No.2 filed I.A.No.III under Order VII Rule 11(a) and (d) of the CPC seeking rejection of the plaint on the ground that the suit was of commercial nature and it had to be brought before the Commercial Court. The other defendants follow suit by adopting contents of the application seeking rejection of the plaint. The 2nd defendant then files an application in I.A.No.IV under Order I Rule 10 of the CPC to delete her from the array of parties. When things stood thus, the petitioner has approached this Court in the subject petition seeking quashment of the impugned order dated 22-02-2025 with a direction to the concerned Court to issue fresh summons under Form No.4 of Appendix-B of the CPC for conduct of summary trial and not regular trial, by treating the suit as a summary suit. 6 4. The learned senior counsel Sri Dhananjay V. Joshi appearing for the petitioner would contend that the concerned Court has erred in issuing summons under Form No.1 of Appendix B, which applies to regular suits wherein written statement is to be filed. The concerned Court ought to have issued summons in Form No.4 of Appendix B of the CPC in terms of Order XXXVII Rule 2(2) of the CPC. Only after issuing such summons and its receipt, the defendants can seek permission from the Court to defend the suit in terms of Order XXXVII Rule 2(3) of the CPC. Service of summons in a wrong manner has vitiated the entire proceedings and has violated the rights of the petitioner under Order XXXVII of the CPC. He would contend that in a case of this nature, it was mandatory for the concerned Court to issue summons in Form No.4 of Appendix B of the CPC for summary trial. Now taking advantage of the irregularity, the defendants have filed their objections treating the suit as a regular suit. Issuance of wrong summons is also taken advantage of for filing an application under Order VII Rule 11(d) of the CPC seeking rejection of the plaint. The entire process has now defeated the very purpose of summary trial and strikes at its root and, therefore, the order be quashed and remit back the matter to 7 the stage of issuance of fresh summons, are the submissions of the learned senior counsel. 5. Per contra, the learned senior counsel Sri S.Srivatsa, appearing for the respondents, at the outset submits that his submissions be taken as the objections to the petition. It is the case of the defendants that the concerned Court has rightly issued regular suit summons under Form No.1 of Appendix-B of the CPC. For a suit to be summarily tried under Order XXXVII Rule 1 of the CPC there must be a written contract and recovery of money should be based on honoured cheques. The concerned Court can decide upon the maintainability issue before issuance of summons under Form No.1 and the defendants are required to be heard on the issue of maintainability before issuing summons. He would seek to place reliance upon several judgments rendered by different High Courts contending that there is no judgment of this Court on the issue. 6. The learned senior counsel for the petitioner would join issue to contend that a summary trial is maintainable under Order 8 XXXVII Rule 1 of the CPC and the concerned Court at the time of issuing summons cannot suo motu decide maintainability of the suit. At that stage, the learned senior counsel submits that, the defendants have no right of being heard in the suit even before issue of summons or directing appearance. He would also rely on certain judgments of different High Courts on the issue. 7. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record. In furtherance whereof, the issues that fall for consideration are: (i) Whether the impugned order of issuing regular summons under Form No.1 instead of summary summons under Form No.4 suffers from want of tenability for it being contrary to law? (ii) Whether the concerned Court can suo motu decide on the maintainability of the summary suit at the time of issuing summons ? 9 (iii) Whether the defendant has the right of being heard on the question of maintainability of the summary suit before the issuance of summary summons ? (iv) Whether the subject suit is maintainable as a summary suit under Order XXXVII Rules 1 and 2 of the CPC or otherwise? Issue Nos.(i) to (iii) are intertwined. Therefore, I deem it appropriate to consider the said three issues together. RE: ISSUE NOs.(i), (ii) AND (iii):- 8. The afore-narrated facts are not in dispute. For consideration of the issue, elaborate facts need not be reiterated, as it revolves around summons for summary trial. It would suffice if the narration would commence from the issuance of legal notice. Legal notice is caused by the petitioner on 12-03-2020. The petitioner then knocks on the doors of the concerned Court under Order XXXVII of the CPC initiating proceedings for summary trial. The prayer in the suit is as follows: 10 “26. WHEREFORE, it is most respectfully prayed that this Hon’ble Court be pleased: (a) to direct defendant No.2 and 3 to pay the plaintiff a sum of INR 4,14,50,000/- (Rupees Four Crores Fourteen Lakhs Fifty Thousand only) towards money due for the period between June 2006 and March 2019 along with 18% interest thereon from due date till the date of actual payment. (b) Grant costs; and (c) Pass any other order or order(s) as this Hon’ble Court may deem fit in the interests of justice and equity.” The suit was thus for recovery of an amount of Rs.4,14,50,000/- towards money due for the period between 2006 and 2019. Along with the plaint, the petitioner files two applications – I.A.No.I/2024 under Order XXXVII Rule 3 of the CPC for issuance of summons for judgment in Form No.4A of Appendix B of CPC and I.A.No.II/2024 under Order XXXVII Rule 2 of the CPC for issuance of summons in Form No.4 of Appendix B of CPC. The office note reads as follows: “1. I.A.1/2024-U/O 37 of CPC Rule 3 IA Relief: PRAYS TO ISSUE A SUMMONS FOR JUDGMENT IN FORM NO.4A OF APPENDIX-B TO THE CODE OF CIVIL PROCEDURE 1908 TO THE DEFENDANTS AND AS PRAYED IN I.A. 2. I.A 2/2024 – U/O 37 OF CPC RULE 2 IA Relief: PRAYS TO ISSUE A SUMMONS IN FORM NO.4 OF APPENDIX-B TO THE CPC AND AS PRAYED IN I.A.” 11 The concerned Court on 15.10.2024 hears the arguments of the plaintiff on both IA Nos.I and II and posts the matter for passing interim orders. The order sheet reads as follows: “Heard the arguments of Ld. Counsel for plaintiff on IA No.I to II. For interim orders Call on 16.10.2024 Sd/ 15/10/2024 XXIV A & SJ, B'LURU.” The concerned Court then passes the order only on I.A.No.1/2024, which was filed for issuance of summons for judgment in Form No.4A of Appendix B of the CPC. The order reads as follows: “ORDER ON I.A.NO.I Heard learned counsel for plaintiff on I.A.No.I. Perused the plaint averments, I.A.No.1, affidavit annexed thereto and documents along with plaint. Plaintiff has filed this I.A. u/o XXXVII Rule 3 of CPC praying to issue summons for judgment in Form No.4A of Appendix-B to the Code of Civil Procedure, 1908 to the defendants, in the interest of justice and equity. After perusal of averments in the plaint as well as in the application and after hearing the learned counsel for the plaintiff 12 and on considering the materials available on record, this court deems it just and proper to hear other side before passing ex- parte order as prayed for in I.A.No.1. Hence, issue emergent notice of I.A.No.1 along with suit summons to the defendants. Returnable by 01-04-2025. Sd/- 21/2/2025 XXIV ACC & SJ, BENGALURU.” The concerned Court holds that after hearing the counsel for the plaintiff and perusing the plaint it is required to hear the other side before passing an ex-parte order. The concerned Court issues regular suit summons under Form No.1 of Appendix B of the CPC instead of summary suit summons under Form No.4 of Appendix B of the CPC in a suit instituted under Order XXXVII of the CPC. I therefore, deem it appropriate to notice Order XXXVII of the CPC, which reads as follows: “ORDER XXXVII SUMMARY PROCEDURE 1. Courts and classes of suits to which the Order is to apply.—(1) This Order shall apply to the following Courts, namely:— (a) High Courts, City Civil Courts and Courts of Small Causes; and (b) other Courts: 13 Provided that in respect of the Courts referred to in clause (b), the High Court may, by notification in the Official Gazette, restrict the operation of this Order only to such categories of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in the Official Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper. (2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely:— (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,— (i) on a written contract; or (ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. (iv) suit for recovery of receivables instituted by any assignee of a receivable. 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 14 (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 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. 4-A in Appendix B or such other Form as 15 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 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. 16 4. Power to set aside decree.—After decree the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. 5. Power to order bill, etc., to be deposited with officer of Court.—In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof. 6. Recovery of cost of noting non-acceptance of dishonoured bill or note.—The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note. 7. Procedure in suits.—Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.” Order XXXVII deals with Courts and classes of suits to which the said Order would apply. It is under the heading ‘Summary Procedure’. Order XXXVII Rule 2 of the CPC deals with the institution of summary suits. A suit under Order XXXVII may be instituted by presenting a plaint, which shall contain specific averments that the suit is filed under this order; that no relief which does not fall within the ambit of Rule 2 has been claimed in the 17 plaint and an inscription that stating “Under Order XXXVII of the CPC, 1908” added in the title of the suit. Sub-rule (2) of Rule 2 mandates summons to be issued in Form No.4. Sub-rule (3) of Rule 2 mandates that the defendant shall not defend the suit referred to in Sub-rule (1) unless he enters appearance and in default, an ex- parte order can be passed. Sub-rule (1) of Rule 3 of Order XXXVII of the CPC mandates that along with the summons under Order XXXVII Rule 2 of the CPC, the plaintiff has to serve upon the defendant a copy of the plaint and the annexures, only after which the defendant may enter appearance. Sub-rule (3) of Rule 3 holds that on the day of entering the appearance, notice of such appearance should be given by the defendant to the plaintiff. Sub- rule (4) of Rule 3 mandates that only after the defendant enters appearance, shall the plaintiff serve on the defendant summons for judgment in Form No. 4-A in Appendix B of CPC. Sub-rule (5) of Rule 3 states that only after the service of summons for judgment, the defendant may apply for leave to defend the suit by filing an affidavit disclosing such facts as may be deemed sufficient to entitle him to defend. 18 9. In the light of the aforesaid facts, the interpretation of statutory provisions has been considered by the Apex Court and other High Courts. Therefore, it becomes apposite to notice the judgments rendered by the Apex Court or the other High Courts. 9.1. The Apex Court in the case of INDIAN BANK v. MAHARASHTRA STATE COOPERATIVE MARKETING FEDERATION LTD.,1 holds that the stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant which is in consonance with the scheme of summary procedure as provided in Order XXXVII. In the aforesaid judgment. The Apex Court holds as follows: “7. Section 10 of the Code prohibits the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied. The word “trial” is no doubt of a very wide import as pointed out by the High Court. In legal parlance it means a judicial examination and determination of the issue in civil or criminal court by a competent Tribunal. According to Webster's Comprehensive Dictionary, International Edition, it means the examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an issue in order to determine that issue. According to Stroud's Judicial Dictionary 1 (1998) 5 SCC 69 19 (5th Edn.), a “trial” is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Thus in its widest sense it would include all the proceedings right from the stage of institution of a plaint in a civil case to the stage of final determination by a judgment and decree of the court. Whether the widest meaning should be given to the word “trial” or that it should be construed narrowly must necessarily depend upon the nature and object of the provision and the context in which it is used. 8. Therefore, the word “trial” in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to “proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit”. The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the “trial” of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word “trial” in Section 10 is not used in its widest sense. 9. The provision contained in Section 10 is a general provision applicable to all categories of cases. The provisions contained in Order 37 apply to certain classes of suits. One provides a bar against proceeding with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the 20 question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in Section 10 of the Code is applicable to a summary suit filed under Order 37 of the Code, the words “trial of any suit” will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the 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. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code. 10. Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider interpretation of the word “trial” is not called for. We are of the opinion that the word “trial” in Section 10, in the context of a summary suit, cannot be interpreted to mean the entire 21 proceedings starting with institution of the suit by lodging a plaint. In a summary suit, the “trial” really begins after the court or the judge grants leave to the defendant to contest the suit. Therefore, the court or the judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. (Emphasis Supplied) 9.2 The High Court of Allahabad while interpreting Order XXXVII and all the Rules appended to Order XXXVII in the case of SAM HIGGINBOTTOM OF AGRICULTURE TECHNOLOGY AND SCIENCE v. ACURITE CONTRACTORS AND ENGINEERS,2 holds as follows: “9. Before proceeding to consider the rival submissions, it would be apposite to refer to the object which the provisions of Order XXXVII seek to achieve. The principle object for providing summary procedure in certain classes of suits was to prevent unreasonable obstruction by a defendant who had no real defense thereby assisting and securing speedy and expeditious disposal of cases. The procedure prescribed in Order XXXVII of the Code is a step in ensuring early disposal of commercial cases such as suits based on negotiable instruments or suits where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or 2 2016 SCC OnLine All 2277 22 without interest, arising on a written contract; or on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. The fundamental difference in the procedure of an ordinary suit with that of a summary suit is that in an ordinary suit the defendant has inherent right to defend for which no leave is required whereas in a summary suit, the defendant has to enter an appearance within a specified period upon service of summons in a prescribed form and thereafter upon service of summons for judgment, which again is in a prescribed form, has to seek from the Court or the Judge leave to defend. A challenge was laid to the constitutionality of Order XXXVII on the ground that it violated the principles of natural justice and was arbitrary as well as discriminatory. The Calcutta High Court while upholding its validity in the case of Ambalal Purusottamdas And Co. v. Jawarlal Purusottam Dave : AIR 1953 Calcutta 758 observed that Order XXXVII is based on a reasonable and justifiable classification; and that the procedure under Order XXXVII is neither against the principles of natural justice nor it is unreasonable within any constitutional prohibition. …….. …….. …….. 12. A perusal of the amended provisions of Rules 1, 2 and 3 would go to show that by virtue of amendment the list of courts to which, and the classes of suits in which, summary procedure was applicable was expanded. Apart from that the amendment provided for the sequence in which the defendant had to enter an appearance upon service of summons in From 4 and, thereafter to apply for leave to defend upon service of summons for judgment in Form 4-A. Because before the amendment the defendant had to obtain leave of the Judge to appear and to defend. Accordingly, under the amended provisions the sequence is that summons of the suit is issued first and when the defendant appears, the plaintiff is to serve on the defendant a summons for judgment. When summons for judgment is served, the defendant has to obtain leave of the Court to defend the suit. Prior to the amendment, there 23 was no provision for service of summons for judgment though the summons of the suit were to be served in Form 4 whereas now the defendant is to be first served summons in Form 4 and, thereafter, when he enters appearance in response thereto, the plaintiff is required to serve on him the summons for judgment in Form 4 A, which has to be supported by an affidavit verifying the cause of action and the amount claimed with a statement that in his belief there is no defense to the suit. Upon service of the summons for judgment in Form 4 A, the defendant has a right to apply for leave to defend, at any time within ten days from the date of service, supported by an affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, upon which, leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. Proviso 1 to sub-rule (5) of Rule 3 of Order XXXVII provides 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 defense to raise or that the defense intended to be put up by the defendant is frivolous or vexatious. Proviso 2 of sub-rule (5) of Order XXXVII provides 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. …….. …….. …….. 17. The difference in procedure of a summary suit with that of an ordinary suit up to the stage of hearing summons for judgment has been examined and considered by the Apex Court in the case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. : (1998) 5 SCC 69. The question which arose before the Apex Court in that case was as to whether the bar to proceed with the trial of a subsequently instituted suit, as contemplated by Section 10 of the Code, was applicable to a summary suit instituted under Order XXXVII of the Code. In that case, a summary suit was instituted for obtaining a money decree by alleging that the amount had become recoverable under a Letter of Credit. Plaintiff took out summons for judgment and the defendant appeared before the Court and moved an application seeking stay of the summary suit on the ground that he had already instituted a suit against the plaintiff for recovery of a certain sum of money prior to the 24 filing of the summary suit. The trial Judge, who heard summons for judgment, held that the concept of trial as contained in Section 10 of the Code is applicable only to regular/ordinary suit and not to a summary suit instituted under Order XXXVII of the Code and, therefore, further proceedings under summary suit were not required to be stayed. The defendant filed an appeal. The appellate court held that the word ‘trial’ in Section 10 has not been used in a narrow sense and would mean entire proceeding after the defendant enters his appearance and, therefore, the appellate court held that Section 10 of the Code applies to a summary suit also. Aggrieved by the decision of the appellate court, the plaintiff of that suit filed appeal before the Apex Court.Before the Apex Court, it was argued that if section 10 was made applicable to summary suits also, the very object of making a separate provision for summary suits would be frustrated. While deciding the said case, the Apex Court in paragraph nos. 9 and 10 of its decision observed as follows:— “9. The provision contained in Section 10 is a general provision applicable to all categories of cases. The provisions contained in Order 37 apply to certain classes of suits. One provides a bar against proceeding with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in Section 10 of the Code is applicable to a summary suit filed under Order 37 of the Code, the words ‘trial of any suit’ will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the 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. If the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff 0becomes entitled to judgment forthwith. If the 25 conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Rule 7 of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code. 10. Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider interpretation of the word ‘trial’ is not called for. We are of the opinion that the word ‘trial’ in Section 10, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.” (Emphasis Supplied) 18. From the observations of the Apex Court in the judgment of Indian Bank's case (supra), the following position emerges: (a) Order XXXVII provides a special/summary procedure for certain classes of suits. Rule 2 thereof 26 enables the plaintiff to institute a summary suit in certain cases. On such a suit being instituted the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service thereof the defendant has to enter an appearance. Thereafter the plaintiff has to serve on the defendant a summons for judgment in the prescribed form. Upon service thereof, within the prescribed time the defendant has to apply for leave to defend the suit. Leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant has not applied for leave to defend, or if such an application has been made and is refused, the plaintiff becomes entitled to judgment forthwith. Likewise where the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. (b) In a summary suit up to the stage of grant of leave there is a special procedure and therefore the concept of ‘trial’ as contemplated by Section 10 of the Code, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the ‘trial’ really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with a summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. …….. …….. …….. 22. Taking a conspectus of the provisions of Order XXXVII of the Code and the decisions noticed herein above, this Court is of the view that summary suits relate to certain classes of suits, for which there is a special procedure to be followed up to the stage of hearing the summons for judgment. In summary suits, the defendant is put to notice vide summons in Form 4 that the matter would be tried as a summary suit and he must therefore enter his appearance within a specified time otherwise 27 the plaintiff would be entitled to a decree. Not only that he is also informed that the plaintiff will thereafter serve upon him a summons for judgment at the hearing of which he will be entitled to move the Court for leave to defend the suit. He is also informed that the leave to defend may be obtained if he satisfies the Court by affidavit or otherwise that there is a defense to the suit on the merits or that it is reasonable that he should be allowed to defend. Thereafter, when the defendant enters his appearance, he is served with a summons for judgment in the prescribed form (Form 4-A) which specifies that upon reading the affidavit of the plaintiff, the Court requires all parties concerned to attend the Court on a given date for hearing on the application of the plaintiff to obtain judgment in the suit against the defendant for a specified sum of money and for interest and cost. Upon receipt of such summons, within a specified period of time, the defendant has to apply for leave to defend by filing an affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend. Upon such prayer being made on behalf of the defendant, the Court may grant leave to defend unconditionally or upon such terms as may appear to the Court or Judge to be just. If the defendant does not apply for leave to defend, or if such application is rejected, the plaintiff is entitled to judgment forthwith. It is only when the leave to defend is granted unconditionally or conditionally and the condition prescribed is fulfilled, the trial of the suit commences and the regular procedure as prescribed in the Code of Civil Procedure becomes applicable. Therefore, the Court or the Judge dealing with the summary suit, up to the stage of hearing the summons for judgment, can proceed to pass the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if (b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted. As, till the stage of grant of leave, a special procedure has been prescribed by the Code, the general provisions of the Code as applicable in an ordinary suit are not applicable to a summary suit up to that stage. The decisions which have been relied by the learned counsel for the defendant- 28 revisionist so as to contend that the defendant cannot be deprived of his right to cross-examine the plaintiffs' witnesses even though he has not been given leave to defend, would not apply in the case of a summary suit, up to the stage of hearing the summons for judgment, having regard to the provisions of Order XXXVII, Rules 1, 2 and 3 of the Code. However, once leave to defend is granted, either unconditionally or conditionally and the condition is fulfilled, the plaintiff would lose his right to have a judgment forthwith, as contemplated by the summons for judgment, and, in that event, the suit would proceed as per the general provisions of the Code in view of Rule 7 of Order XXXVII of the Code; and, in such an event, the defendant would have right to cross examine the plaintiff's witness, if examined, even if the suit proceeds ex parte or without a defense as in an ordinary suit. But where the leave to defend is either rejected or granted conditionally and the condition is not fulfilled, the plaintiff is entitled to a judgment forthwith and in such a situation, he can obtain a decree forthwith as contemplated under Order XXXVII, Rule 3(6) of the Code or it could be based on the affidavit evidence on the side of the plaintiff and the documents produced or even based on oral evidence formally proving the same as has been observed by the Apex Court in the case of Ajay Bansal (supra). The decisions relied upon by the learned counsel for the revisionist are in the context of ordinary suits where no leave to defend is required and, therefore, in an ordinary suit, even where the suit proceeds ex parte or the defense is struck off, the defendant is not precluded from cross examining plaintiff's witness, whereas in a summary suit there is no inherent right to defend without the leave of the Court or the Judge. Accordingly, the authorities cited by the learned counsel for the revisionist are not of much help to the revisionist.” (Emphasis Supplied) The High Court of Allahabad in the afore-quoted judgment holds that summary suits relate to certain classes of suits, for which there is a special procedure to be followed upto the stage of hearing the 29 summons for judgment and in summary suits, the defendant is put to notice vide summons in Form No.4 informing that the matter would be tried as a summary suit and he must enter his appearance within a specified time, failing which, the plaintiff would be entitled to a decree. Following the judgment of the Apex Court in INDIAN BANK supra as to when a trial would begin in a suit instituted under Order XXXVII Rule 2 of the CPC, the Court holds that in a suit instituted under Order XXXVII, trial begins only after the issuance of leave to defend under Order XXXVII Rule 3(5) of the CPC. Further, the Court holds that the object of providing a summary procedure in certain classes of suits is to prevent unreasonable obstruction by the defendant and is a step in ensuring early disposal of commercial cases. 9.3 Long before the judgment of the High Court of Allahabad, a coordinate bench of this Court in JATIN KHANNA v. PREMA G. ULLAL,3 holds that the summary procedure contemplated under Order XXXVII is mandatory in nature and when once a plaintiff chooses to avail the summary procedure provided 3 1979 SCC OnLine Kar 70 30 by Order XXXVII of the CPC, the parties to the suit are required to comply with that special procedure in respect of the matters specially dealt in that order and they cannot avail of the ordinary procedure in respect of those matters that are specifically provided by the summary or special procedure of Order XXXVII. The coordinate bench while interpreting the Order XXXVII and various Rules under the said Order holds as follows: “7. Any suit of a Civil nature instituted in a Civil Court can be proceeded with or tried in an ordinary way as provided under Order 5 of the Code of Civil Procedure. A Civil Court can follow the procedure provided by Order 5 of the Code of Civil Procedure in respect of any suit of a Civil nature. Order 5 of the Code of Civil Procedure does not make any distinction or recognise any distinction or difference in the nature of a claim made by the plaintiff in his suit. Order 37 of the Code of Civil Procedure which provides for the summary procedure in the disposal of suits, cannot be resorted to in respect of all suits of a civil nature. Order 37 applies only to certain classes of suits enumerated in sub-rule (2) of Rule (1) or Order 37. Only (a) suits upon bills of exchange, hundies and promissory notes; (b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising—(i) on a written contract; or (ii) on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only; can be instituted under Order 37 of the Code of Civil Procedure. In other words, the plaintiff can avail the remedy of a summary procedure provided by Order 37 only in respect of the suits enumerated in sub-rule (2) and in no other. A plaintiff's suit enumerated in respect of the class of suits falling under sub-rule (2) of Rule (1) of Order 37 is also 31 a suit of civil nature and therefore it is open to such plaintiff either to avail the summary procedure provided by Order 37 or avail the ordinary procedure provided by Order 5 of the Code or Civil Procedure. A suit in which the plaintiff can avail the summary procedure, can also avail the ordinary procedure. But the converse is not permissible. As to which remedy the plaintiff should chose is a matter for him to decide. 8. The heading of Order 37 is summary procedure. When a suit is instituted under Order 37, a court is required to follow the summary procedure and decide the suit in accordance with the provisions made in that order. At least one of the objects of providing summary procedure in respect of certain classes of suit is that such classes of suits that are availed by a suitor should be decided in conformity with the provisions made therein with speed and despatch and not in an ordinary and leisurely manner as it generally happens before a civil court where a suit is instituted availing the ordinary procedure. With this background it is useful to analyse the broad requirements of order 5 and the specific requirements of Order 37 of the Code of Civil Procedure. 9. In a suit instituted in an ordinary manner regulated by Order 5, a summons, a copy of the plaint is issued to a defendant specifying a date of hearing (vide Rules 1 and 2). Rule 3 empowers the court to enforce the appearance of the defendant in person subject to the limitations placed by Rule 4. Rule 5 empowers the court to issue summons for the settlement of issues or for a final disposal of the suit. Proviso to Rule 5 applies to suits of cognizable by a court of small Causes which directs that summons must be issued only for the final disposal. Rule 6 requires the court to fix a day giving sufficient time to the defendant to appear and answer the claim made by a plaintiff. Rules 9 to 30 deal with service of summons. In a suit instituted in an ordinary manner, a defendant as of right can file his written statement and contest the claim made by a plaintiff (vide Rule 1 of Order 8 C.P.C.) and that right being absolute cannot be curtailed by the court except in the matter of granting time to file the written statement. After filing his written statement, the 32 defendant has also the right to contest the claim agreeably with his defence. In a suit in which the ordinary procedure is availed by a plaintiff, almost as a rule, the suit is not decided on the first date of hearing and reasonable time is given to the defendant to file his written statement and contest the claim if he so choses. In a suit in which the plaintiff has chosen to avail or has availed the summary procedure, that is not the position. Among other requirements, sub-rule (1) of Rule (2) of order 37 requires a plaint to contain (a) a specific averment to the effect that the suit is filed under Order 37: (b) that no relief, which does not fall within the ambit of Rule 2, has been claimed in the plaint; and (c) that immediately below the number of the suit in the title of the suit an inscription to the effect ‘Under Order XXXVII of the Code of Civil Procedure, 1908’. Sub-rule (2) of Rule 2 of Order 37 directs that the summons of the suit to the defendant shall be in Form No. 4 in Appendix B or in such other Form as may be prescribed from time to time. An examination of the Form of summons to be issued to the defendant in a suit instituted under Order 37 shows that the court while briefly referring to the suit claim instituted by the plaintiff, summons him to cause appearance to be entered for him within 10 days from the service of the summons and if such appearance is entered, states that the plaintiff will serve on him a summons for judgment at the hearing of which he may be entitled to move the court for leave to defend that suit. The penultimate para of the summons state that leave to defend will be granted if the defendant were to satisfy by an affidavit or otherwise that there is a defence to the suit on merits or that it is reasonable that he should be allowed to defend that suit. The summons issued is required to be sealed and signed by the Judge of the court in which the suit is instituted. 10. The summons prescribed incorporates the requirements of Rule 3 of Order 37. First part of sub- rule (1) of Rule 3 requires the plaintiff to serve the summons and a copy of the plaint and enclosures thereto on the defendants. According to this provision the plaintiff is required to prepare the summons in the 33 prescribed form, fill in all the necessary details thereto and produce the same to the court, to enable the office to specify the date of hearing in such summons, affix the seal of the court and then have the signature of the Judge and return the same to the plaintiff to enable him to annex the copy of the plaintiff and other enclosures for taking steps to serve such summons on the defendant. According to the second part of the same rule, the defendant has to enter appearance before court either in person or by a counsel within 10 days of service of lummons on him. The last part of the same rule requires him to file in court his address for service of notices on him. An examination of the other sub-rules of Rule 3 shows that in complying with the requirement of sub-rule (1) the parties have no choice. When once the defendant has been served with summons, has entered appearance and has filed his address in court, sub-rule (2) provides for service of further summons, notices and other judicial processes on him if they are left at the address given by him for such service if it is found that they cannot be served on him personally. Sub-rule (3) requires the defendant on the day he enters appearance in court to give notice of his appearance to the counsel appearing for the plaintiff if he is represented by a counsel or to the plaintiff himself if he is not represented by a counsel by personally serving such notice or sending by a pre-paid letter directed to the address of the plaintiff's pleader or to the plaintiff as the case may be. When the defendant enters appearance, gives notice of such appearance under Sub-rule (4), the plaintiff has to serve on such 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 10 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 filed by him. On service of such summons for judgment, under sub-rule (5) it is open to the defendant at any time within 10 days from service of such summons for judgment to apply to the court for leave to defend or permission to defend such suit by disclosing the facts on affidavit or otherwise that are 34 necessary to grant such leave by the court. When the defendant seeks for such leave it is open to the court to examine such request and grant leave in its judicial discretion either unconditionally or upon such terms as may appear to be just in the circumstances of that case. The power to grant leave to defend, comprehends in itself the power to refuse the leaves sought by the defendant to defend the suit. The defendant has no right to contest the suit when suit is instituted under the summary or special procedure under Order 37, while he has an absolute right to contest the same when the suit is filed under the ordinary procedure viz., Order 5 of the Code of Civil Procedure. First proviso to sub-rule (5) empowers the court to refuse leave to defend the suit if the cause shown by the defendant does not disclose a substantial defence to urge or the defence intended to be put up by him is frivolous or vexatious. Second proviso to sub-rule (5) directs the court not to grant leave if the defendant has admitted any part of the plaintiff's claim without the defendant depositing the admitted amount of the claim in court. Sub-rule (6) regulates the procedure to be adopted by the court when dealing with a summons for judgment filed by the plaintiff under sub-rule (4) of Rule 3. Clause (a) of sub-rule (6) requires the court to forthwith enter a judgment in favour of the plaintiff if the defendant has not applied for leave to defend under sub-rule (5) or if the application made by him is refused by the court. Clause (b) of sub-rule (6) regulates the procedure to be adopted when leave to defend is granted to a defendant. Under this rule, it is open to the court to direct the defendant to give security for the disputed part of the claim within a particular time. In the event of the failure of the defendant to furnish security within the time permitted by the court and fulfil any other conditions imposed thereto, the plaintiff becomes entitled to a judgment in his favour for the disputed claim. Sub-rule (7) enables the court to excuse the delay, if any, caused by the defendant in entering appearance or in applying for leave to defend the suit. Even here, the defendant has no right to claim that the delay in entering appearance or in applying for leave to defend should be excused or 35 condoned. But that does-not necessarily mean that the court can arbitrarily refuse an application. Any application made by the defendant under sub-rule (7) has to be considered judiciously by the court. Rule 4 empowers the court to set aside the decree made by it under Rule 3 of the Rules. Rule 5 empowers the court to order the deposit of the bill, hundi or note on which the suit is founded with an officer of the court and direct the plaintiff to give security for costs and stay the suit till such security is given by the plaintiff. Rule 7 directs that except in matters specifically dealt by Rules 1 to 6 of Order 37, the procedure to be adopted in the trial and disposal of the suits shall be the same as shall be followed in suits instituted in the ordinary manner. In respect of matters that are specifically dealt by Order 37, the court is required to apply only the special procedure provided in the various provisions already noticed and cannot apply the provisions that are applied when a suit is instituted in the ordinary procedure. This in brief is the scheme of Order 37 which provide for a summary or special procedure in respect of certain class of suits which can be availed by a plaintiff if he so choses and not otherwise. But when once a plaintiff choses to avail the summary or special procedure provided by Order 37, the parties to the suit viz., the plaintiff and the defendant are required to comply with that special procedure in respect of the matters specially dealt in that order and they cannot avail of the ordinary procedure in respect of those matters that are specifically provided by the summary or special procedure of Order 37. 11. Earlier, I have noticed that in the suit filed by her before court the one and the only requirement that has been complied in her suit is the requirement of clause (a) of sub- rule (1) of Rule 2 of Order 37 viz., that there is a specific averment to the effect that the suit is filed under Order 37 of the Code of Civil Procedure and that except for this the plaintiff and the court have not followed the requirements or provisions enumerated in the summary or special procedure contemplated by Order 37 of the Code of Civil Procedure. At all stages, the plaintiff and the court have proceeded with the 36 suit as if it is a suit instituted under the ordinary procedure and have dealt with the same on that basis. In these circumstances, the question that arises for determination is whether the summons filed by the plaintiff for judgment was in order and the direction issued by the learned Civil Judge to file a fresh summons for judgment retrunable by 2nd January 1979 can be sustained. Even according to the learned Civil Judge, the summons filed by the respondent for judgment is not in order and therefore the only question that arises for my determination is whether the learned Civil Judge was justified in directing respondent to file a fresh summons for judgment returnable by 2nd January 1979 which necessarily means that the suit filed by her should be tried under the summary or special procedure provided by Order 37 of the Code of Civil Procedure and this question depends whether all or any of the provisions made under Order 37 are mandatory or directory. Sri Shivaprakash contended that the special provisions made under Order 37 are mandatory and therefore a suitor and the court have no choice in dis-obeying any of the mandatory requirements of the provisions made in that order. In support of his contention Sri Shivaprakash strongly relied on the ruling of the Supreme Court in Bhikraj Jaipuria v. Union of India [AIR 1962 S.C. 113.] (Lala) Gopaldas v. (Lala) Chander Prakash [AIR 1966 J & K 138.] . Sri Ullal refuted the contention of Sri Shivaprakash and urged that the provisions made under Order 37 are not mandatory and are only directory. In support of his contention Sri Ullal strongly relied on the ruling of the Supreme Court in Narayan Rao v. State of Andhra Pradesh [AIR 1957 S.C. 737.] and several other rulings in which it had occasion to explain the distinction and difference between mandatory and directory provisions and the principles that should be applied in ascertaining whether a provision is mandatory or directory. 12. As observed by Lord Campbell in Liverpool Borough Bank v. Turner [(1860) 30 L.J. Ch. 379.] quoted with approval by the Supreme Court in Bhikraj's case—‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.’ (vide para 17 page 119). ‘The 37 question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other …………….’ (vide para 11 of A.I.R. 1957 S.C. 912 at 918). Another principle that is equally well settled is statutes that confer and regulate new rights, privileges, immunities and remedies should generally be construed as mandatory as they are inderogation of the common law or of common right (vide para 265 page 527, the Construction of statutes by Crawford, 1940). It is in this background, I have to ascertain whether the provisions made under Order 37 are mandatory or directory. 13. Suits under Order 37 can be instituted only before certain courts in respect of certain class of suits (vide Rule 1 of Order 37). Sub-rule (1) of Rule 2 directs that the suit to be instituted shall contain the particulars specified in that sub-rule. Whenever the Legislature uses the word ‘shall’ the ordinary presumption is that that provision is mandatory unless the context or otherwise justifies that it should be construed as directory (vide Sainik Motors, Jodhpur v. State of Rajasthan [AIR 1961 S.C. 1480.] . Sub-rule (2) of Rule 2 of Order 37 which requires that a summons to be in a particular form also uses the word ‘shall’. Sub- rule (3) in emphatic and negative terms directs that the defandant shall not be entitled to defend the suit unless he enters an appearance in accordance with the provisions made in the following rule viz., Rule 3 of the Rules. Almost every sub-rule of Rule 3 also uses the word ‘shall’. The procedure provided in Order 37 is a special procedure and is in derogation of the ordinary procedure. An examination of the several provisions contained in Order 37 would show that it confers certain special rights, privileges, obligations and remedies on both the parties to a suit. Rule 7 expressly declares that in matters expressly provided in the 38 provisions made under Order 37, the ordinary procedure will not be applicable. Every special step or procedure by Order 37 which is in derogation of the ordinary procedure is required to be complied by a party in the manner and time provided by those provisions with meticulous care and caution if he wants to avail the rights and benefits of those provisions. On these considerations, the one and the only inescapable conclusion that can be drawn is that the summary procedure or special provisions made under Order 37 are mandatory in nature and are not directory, as contended by Sri Ullal. In Gopal Das's case, a Division Bench of the Jammu and Kashmir High Court speaking through S. Murtaza Fazl Ali, J., as he then was, has also taken a similar view. I am in respectful agreement with the view expressed in that case. As Sri Ullal laid great emphasis on the ruling of the Supreme Court in Narayana Rao's case to hold to the contrary, it is proper to examin whether the ratio in that case supports Sri Ullal. In Narayan Rao's case the question arose on the failure to furnish copies of documents that were required to be furnished to an accused person under 173(4) of the Code of Criminal Procedure before a Magistrate commits such person to a Sessions court for trial. The Supreme Court examined the question on the footing that those documents had not been furnished to the accused persons and found that such failure had not occassioned any failure of justice. In reaching that conclusion the Supreme Court considered the intendment and the effect of Section 537 of the Code of Criminal Procedure and gave effect to the same. In my opinion, the ratio in Narayan Rao's case has therefore no application in construing whether the provisions of Order 37 are mandatory or directory.” (Emphasis Supplied) 9.4 While discussing the difference between the summons issued in Form No. 1 under Order V Rule 1 and the summons issued in Form No. 4 under Order XXXVII Rule 2 of the CPC the High Court 39 of Andhra Pradesh in the case of VASUDEV CHENOY v. T. JAGAN MOHAN,4 holds as follows: “5. The difference between the summons sent in Form No. 1 under Order 5, rule 1 and the summons sent in Form No. 4 under Order 37 lies in the fact that while the summons sent under Order 5 merely summons the defendant to appear in Court in person or by pleader on a particular date and to take part in the trial, the summons sent in Form No. 4 under Order 37 specifically cautions the defendant that the right of the defendant to contest the suit would be forfeited to him unless he performs and fulfills certain conditions. It says that the plaintiff would be entitled to obtain a decree without any trial in a summary procedure unless the defendant enters his appearance within ten days from the date of service of summons and also obtains leave of the Court to defend the suit by showing sufficient cause. In other words in a summary procedure the right of the defendant to contest the plaintiffs suit is conditional and not absolute as in ordinary run of suits. Now, it appears from the record that the Court in this case committed an error by sending the wrong summons in Form No. 1 to the defendant instead of Form No. 4. The mistake committed by the Court was subsequently noticed and a second set of summons in Form No. 4 appropriate for Order 37 were sent on 27th December, 1980 and were served on the defendant on 27th December, 1980. The defendent filed his vakalat on 31st December, 1980. This was clearly within ten days time allowed by Form No. 4. But on the ground that no notice of the defendant's appearance was given to the plaintiff or his Counsel as required by rule 3(3) of Order 37, Civil Procedure Code, the defendant's right to contest the suit was forfeited by the Court and accordingly, the suit was decreed without any trial The learned Additional Chief Judge, City Small Causes Court in holding that the defendant was not entitled to defend the suit, observed that the vakalat was filed after the expiry of ten days obviously counting the time from the date of 4 1981 SCC OnLine AP 274 40 service of the first set of summons. The suit was decreed on that basis.” (Emphasis Supplied) 9.5 The High Court of Delhi in KHERA HANDLOOM SUPPLY v. O.B. EXPORTS,5 holds that the procedure contained under Order XXXVII Rule 2 of the CPC, for institution of suits is mandatory in nature and the said provision being procedural in nature, the requirement of the same would be satisfied if there has been substantial compliance with the same. It holds as follows: “10. The plain reading of Order, 37 rule 2 shows that the Legislature was particular as to what should be contained in a plaint filed under Order, 37. Prior to the amendment in 1976, Order 37 did not provide or refer to the form of the plaint. This provision has been inserted only with the amendment. The Legislature has advisedly used two words in Order, 37 rule 2(a), namely, “may” and “shall”. When two such words namely, “may” which indicates that there is a discretion which is given, and “shall” are used, then the rules of construction are that these two words should be given their ordinary meaning. ‘May’ has to be understood as ‘may’ and ‘shall’ has to be understood as shall. Prima facie, therefore, it would appear that the provisions of Order, 37 rule 2 are mandatory in nature and have to be complied with. 11. It is true that unlike some of the other provision of Order, 37 which cast a duty on the defendants to take a particular course of action on summons being served and which also provide for the consequences on the failure of the defendant to take such course of action, the said Order, 37 rule 2 does not specifically provide for any specific consequences to follow in the event of the plaintiff not complying with the provisions of Order, 5 1989 SCC OnLine Del 155 41 37 rule 2. Nevertheless, in our opinion, non-compliance with Order, 37 rule 2 would result in certain specific consequences. The consequence of non-observance of Order, 37 rule 2 would, in our mind, be that the said will have to be regarded as an ordinary civil suit and not one which is filed under Order, 37. Non-observance or non-compliance with the provisions of Order, 37 rule 2 would not result in the suit being dismissed but must result in the Court regarding the suit as having been filed not under the said provisions of Order, 37 but as an ordinary suit. To this extent, therefore, the contention of the learned counsel for the defendants is correct, namely, that Order, 37 rule 2 is a mandatory provision which has to be compiled with. 12. Even though the provisions of Order, 37 rule 2 are mandatory the same have to be interpreted in such a way so that the Legislative intent is given effect to. 13. The normal procedure as provided in the Code of Civil Procedure is that a defendant has a right to defend and file the written statement whenever a suit is filed. Order 37 is a special procedure which is meant to provide speedy trial and remedy in specific cases. Order 37 has been inserted with a view to assist the plaintiff. When a suit is filed under Order, 37, summons are required to be issued in the prescribed from and thereafter the defendant, if it wants to contest, has to enter appearance within 10 days thereof. After appearance is entered, the plaintiff files summons for judgment which are served on the defendant and the defendant thereupon is required to apply for leave to defend under Order, 37 rule 5. 14. It will be seen from the above that when a suit is filed under order, 37, the defendant is under a disadvantage. He is obliged to enter appearance within 10 days failing which the suit may be decreed. Because of the fact that the right of the defendant to enter appearance and file written statement is restricted, the Legislature thought that adequate provision should be made so that when the plaint is received by the defendant, he is put to notice that a suit has been filed under the special provisions of Order, 37 and that the normal procedure as provided by the Code of Civil Procedure would not be applicable. It is 42 for this reason that in Order, 37 rule 2 has been provided that the plaintiff must state three thing, namely, that there should be a specific averment that the suit is filed under Order, 37 and that no relief which does not fall within the ambit of that rule has been claimed and, furthermore, in the title of the suit has to be stated that the suit is under Order, 37 of the Code of Civil Procedure, 1908. If all these three things are stated then the defendant will not be heard to say that he was not aware of the special requirement of Order, 37 because he might have thought that the suit was filed in normal course and not under the special provisions of Order, 37. 15. The provisions of Order, 37 rule 2 being procedural in nature, in our opinion, the requirement of the said provision would be satisfied if there has been substantial compliance with the same. In other words, the plaint must show that there has been compliance with the provisions of Order, 37 rule 2(1)(a), (b) and (c). For example, though sub-rule (b) of rule 2(1) of Order, 37 is couched in negative terms, in our opinion there would be substantial compliance with this provision if an averment to this effect is made in positive term by the plaintiff in the plaint. In the instant case, in paragraph 3 of the plaint it has been stated by the plaintiff that “the suit is based on the cheque, which has been issued by the defendants in favour of plaintiff which on presentation, was returned with the remark “REFER TO DRAWER”. The relief prayed in this suit falls within the ambit of Order, 37 Rule 2 CPC.” This, is our opinion, fulfils the requirement of Order, 37 rule 2(1)(b) even though it is stated in a manner differently than what has been indicated in the said rule.” (Emphasis Supplied) 43 9.6 The High Court of Jammu and Kashmir in the case of RAJESH MADANLAL ANAND v. RAKESH MADANLAL ANAND,6 holds as follows: “5. The suit was presented before the trial Court who without proceedings further in the suit in terms of the provisions of Order 37 CPC considered the averments made in the plaint and came to the conclusion that the suit involved triable issues and raised certain complicated questions of fact and therefore, the same was not liable to be treated as a suit under Order 37 CPC. It was also noted by the trial Court that the cheque in question on the basis of which the suit has been filed was issued by the mother of the petitioner as the share of the plaintiff in the dividend and there was no document appended with the plaint to suggest that the said amount of cheque had actually passed on to the respondents to make them liable in accordance with the provisions of Order 37 CPC. On these grounds, the trial Court refused to try the suit under Order 37 CPC and instead treated the same as a regular suit. …… …… …… 8. Having heard the petitioner in person and learned counsel for the respondents and perused the record, it would be necessary to first appreciate the ambit and scope of Order 37 CPC. The Order 37 CPC provides for summary procedure in respect of certain suits. The essence of the summary suit is that the defendant is not, as in ordinarily suit, entitled as of right to defend the suit. The defendant is required to apply for leave within ten days from the date of service upon him and such leave will be granted by the Court only if the affidavit filed by the defendant discloses such facts as the Court may deem sufficient for granting the leave to the defendant to appear and defend the suit. It is further provided that if the Court declines to grant leave to the defendant, the plaintiff becomes entitled to a decree straightway. It is not that all types of suit can be tried summarily by having resort to Order 37 CPC. The 6 2018 SCC OnLine J&K 572 44 Order 37 Rule (1) Sub Rule (2) CPC classifies suits which can be tried by the summary proceedings laid down in the Order 37 CPC. Indisputably, the suits upon bills of exchange, hundies an promissory notes fall within the ambit of Order 37 CPC. It is also not in dispute that the cheque is a “bill of exchange” as defined in the Negotiable Instruments Act. No suit on the basis of cheque under Order 37 CPC would lie unless the cheque has been presented to the banker and has been bounced for one or the other reason and the amount represented by cheque remains unpaid. 9. Admittedly, the suit filed by the petitioner is based on the cheque issued by late Smt. Swaraj Madanlal Anand which has not been honoured by the banker of the petitioner. It is also admitted position that the cheque was presented during the life time of late Swaraj Madanlal Anand. On refusal on the part of the banker of late Smt. Swaraj Madanlal Anand to honour the cheque, the petitioner after following the procedure filed a complaint under Section 138 of the Negotiable Instruments Act against late Smt. Swaraj Madanlal Anand. It is, however, a different matter that during the pendency of the complaint, Smt. Swaraj Madanlal Anand died and criminal complaint was closed by the concerned Magistrate. Obviously, the Magistrate, could not have proceeded in the complaint against the legal representatives, who might have inherited the estate. In these circumstances, the plaintiff having been left with no option filed a suit claiming recovery of the cheque amount. As is seen from the plaint, apart from the recovery of the amount represented by dishonour of cheque, the petitioner has also made a claim for further amount which of course, cannot be made subject matter of summary trial in the suit. Be that as it may, it is a specific case of the petitioner that after the death of his mother Smt. Swaraj Madanlal Anand, all his liquid assets came to be inherited by the respondents to his exclusion. I find specific averments made in the plaint in this regard. It is on this assertion made by the petitioner, the suit was filed against the respondents by having resort to Order 37 CPC. The trial Court summarily declined to entertain the suit as one under Order 37 CPC and treated the same as a regular suit. This course was not open to the trial Court. A bare reading of the plaint would disclose that the suit 45 was filed on the basis of cheque, which is indisputably a “bill of exchange” and therefore, maintainable under Order 37 Rule 1 Sub Rule 2 CPC. The trial Court should have entertained the suit and followed the procedure laid down in the Order 37 CPC. Reference in this regard is invited to Rule 2 of Order 37 CPC which specifically provides that if the suit is one falling under Rule 1(2) and the plaint complies the requirements enumerated in Rule 2, the trial Court is bound to proceed and issue summon in the Form No. 4 given in Appendix B or any such Form as may, from time to time, be prescribed. This, however, does not mean that the trial Court cannot have preliminary scrutiny of the plaint to find out as to whether the suit is one falling under Order 37 CPC but such inquiry has to be limited. The trial Court at the stage of entertaining the suit cannot look to the merits of dispute involved and the probable defences that would be taken by the defendants and come to the conclusion that the suit involves complicated disputed questions of fact and triable issues. The trial Court cannot return such finding unless notice is served upon the defendants and his version comes on record in the shape of an application seeking leave to defend. As is appropriately provided in Rule 3 that the defendant, if within ten days from the date of service of summons for judgment, by affidavit or otherwise discloses such facts as the Court deems sufficient to entitle him to defend, the Court may grant him leave to defend either unconditionally or upon such term as may appear to the Court to be just. It is perhaps at this stage, the Court would try the suit in the same manner as is done in suits instituted in the ordinarily manner. As rightly submitted by the petitioner appearing in person, the trial Court jumped the gun and erroneously treated the suit as a regular suit. 10. I have carefully gone through the provisions of Order 37 CPC and find that nowhere in the order, a power is conceded in favour of the trial Court to refuse to treat the suit based on cheque and otherwise complying with the provisions of Order 37 CPC Rule 2 as summary suit triable under Order 37 CPC and treat the same as a regular suit. In my considered opinion, learned trial Court 46 has exercised the jurisdiction not vested in it and has consequently caused serious mis-carriage of justice. The right of the plaintiff to have his suit tried in summary manner is a vital right conferred under Order 37 CPC and said right cannot be trampled by overstepping the jurisdiction and taking the view which is not countenanced in law. This Court, thus, finds it a fit case for exercising the supervisory jurisdiction vested under Section 104 of the Constitution of J&K. …….. …….. …….. 17. From the conspectus of the judicial opinion on the issue, the following conclusion are deductible:— (i) That a summary suit is maintainable and can be filed against the legal heirs/representatives of a deceased defendant and a decree which may be ultimately passed, however, can be executed only to the extent of the estate of the deceased in the hands of judgment debtor; (ii) That in a suit filed on the basis of a dishonoured cheque, if the cheque is presented and dishonoured during life time of the drawer and the drawer is intimated the aforesaid facts, the summary suit under Order 37 CPC would lie against his/her legal heirs/representatives who have succeeded to his/her estate and the liquid assets, if deceased by that time has expired; (iii) That once a suit is filed, which is covered by the Order 37 Rule 1 Sub Rule 2 and complies with the requirement as laid down in the Order 37 Rule (2), the trial Court shall not examine the merits of the controversy, but would proceed to issue summons to the defendants in the prescribed Form. (iv) That it is only when leave to defend is granted to the defendants, the defendant would be permitted to file written statement and suit would be tried in the manner an ordinarily suit is tried under the Code of Civil Procedure. 18. In view of the aforesaid stated position of law and the facts and circumstances of the case, I am of the considered view that order impugned passed by the trial Court is against all cannons of law and the trial Court not only exceeded his jurisdiction but exercised the one not vested in it and thereby caused serious miscarriage of justice. Accordingly, I allow this petition and set aside the order impugned in exercise of supervisory jurisdiction vested in the Court under Section 104 of 47 the Constitution of Jammu and Kashmir. The trial Court shall proceed in the suit in the manner prescribed under Order 37 CPC. The parties to appear before the trial Court on 24.09.2018. (Emphasis Supplied) The High Court of Jammu and Kashmir in the afore-quoted judgment holds that once a suit which is covered by Order XXXVII Rule 1(2) of the CPC is filed and it complies with the requirement as laid down in Order XXXVII Rule 2 of the CPC, the trial Court shall not examine the merits of the controversy, but would proceed to issue summons to the defendants in the prescribed Form i.e., Form No.4. However, the trial Court can have a preliminary scrutiny of the plaint to find out as to whether the suit is one falling under Order XXXVII of the CPC but such inquiry has to be limited. The trial Court at the stage of entertaining the suit cannot look into the merits of the dispute involved and the probable defences that can be taken by the defendants and come to the conclusion that the suit involves complicated disputed questions of fact and triable issues. The trial Court cannot return such a finding unless notice is served upon the defendants and his version comes on record in the shape of an application seeking leave to defend i.e., an application under Order XXXVII Rule 3(5) of the CPC. 48 9.7 The High Court of Delhi in the case of SATYA PRAKASH & BROS (P) LTD. v. QUTAB REALCON (P) LTD.,7 holds that Order XXXVII Rule 2(1)(b) of the CPC requires the plaintiff to expressly state that no relief, other than that falling within the ambit of Order XXXVII of the CPC, has been claimed. A suit under Order XXXVII of the CPC is maintainable only if a claim within the ambit of Order XXXVII is made thereunder and the maintainability of the suit under Order XXXVII of the CPC has to be decided at the threshold. It holds as follows: “6. A suit under Order XXXVII of the CPC is maintainable only if a claim within the ambit of Order XXXVII is made thereunder. 7. The plaintiffs having claimed reliefs in the suit against persons other than those privy to documents on the basis of which suit under Order XXXVII of the CPC has been filed, notwithstanding the suit having been entertained without noticing the said aspect by the learned Joint Registrar, the suit cannot be permitted to be treated as under Order XXXVII of the CPC. 8. The contention of the senior counsel for the plaintiffs at this stage that the plaintiffs are willing to drop defendants no. 3 to 5 is of no avail. 9. The maintainability of the suit under Order XXXVII of the CPC has to be decided at the threshold. In fact, 7 2019 SCC OnLine Del 10400 49 Order XXXVII Rule 2(b) requires the plaintiffs to expressly state that no relief, other than that falling within the ambit of Order XXXVII of the CPC, has been claimed. 10. The senior counsel for the plaintiffs has argued that only a plea to the said effect is to be made. 11. The fact that a plea is required to be made, shows that the plaintiffs cannot make a claim besides that within the ambit of Order XXXVII of the CPC and the moment the plaintiffs make such a claim, the plaintiffs ought to have been ousted on the very first day from proceeding under Order XXXVII of the CPC and the mere fact that the learned Joint Registrar entertained the suit will not come in the way of this Court now correcting the mistake. 12. The suit having been found to be not maintainable under Order XXXVII of the CPC, these applications are infructuous.” (Emphasis Supplied) 9.8 In a later case, the High Court of Gujarat in the case of MENA VRAJESH DHANAK v. NAYANABEN DINESHBHAI DOSHI,8 while relying on an earlier judgment of the High Court of Kerala holds that the dispute as to whether the case should be tried as summary suit or as an ordinary suit can be adjudicated only after issuing summons. The rejection of the plaint without even 8 2021 SCC OnLine Guj 3251 50 numbering is totally illegal and the trial Court has a statutory duty to number the plaint and issue summons under Order XXXVII Rules 2 and 3 of the CPC if the plaint is in order. Order VII Rule 11(d) applies only where the suit appears from the statement in the plaint to be barred by any law. It holds as follows: “7. Perusal of the facts on hand would indicate that it is the case of the respondent - original plaintiff that he is entitled to recover a sum of Rs. 7,00,000/- which he advanced to the applicant - original defendant on an oral contract. According to the applicant, the suit is not maintainable because if it is an oral contract, the procedure under Order 37 of the Code cannot be followed. At best therefore, the case of the applicant was that the suit instituted by the respondent - original plaintiff was a suit which should not be tried as a summary suit. In essence therefore the grievance of the applicant - defendant in an application under Exh.13 was that the suit could not be tried in a summary nature but it could have been tried as a long cause suit. Reading the application under O. 7-R.11 would indicate that the case of the defendant was that the recovery of money on the basis of Cheque was according to the applicant by way of an oral contract, so at best, as held by the Kerala High Court in the case of Aravindakshan (Supra), there was no bar to the filing of the suit. The dispute was as to whether it was tried as a summary suit or which could be tried as an ordinary suit. Such an issue can only be adjudicated after an application for leave to defend was filed. It would be worthwhile to reproduce para 22 of Aravindakshan (Supra) which reads as under: “22. The rejection of the plaint by the Munsiff under O. VII R. 11(d) of CPC is. n our opinion, wholly without jurisdiction. As held by the apex Court, the grounds must be such as to fall within the categories specified in order VII R. 11.0.VH R. 11(d) applies only where the suit appears from the statement in the plaint to be barred by any law. There is no bar to the filing of the suit. The dispute is as to whether it shook! be tried as summary suit 51 or ordinary suit, which can as well be adjudicated later A la-issuing summons. The rejection of the plaint without even numbering is totally illegal. The learned Munsiff, in the facts and circumstances of this case, acted illegally and with material irregularity in not numbering the plaint and issuing summons under O. XXXVII and in rejecting the plaint under O. VII R. 11(d) of the Code of Civil Procedure. If fee order of the learned Munsiff is allowed to stand, certainly it would occasion failure of justice and denial of benefits conferred on the people of this country by the Parliamentary legislation. The learned Munsiff had a statutory duty to number the plaint and issue summons under O. XXXVII Rr. 2 and 3 of the Code of Civil Procedure if the plaint is otherwise in order.” …….. …….. …….. 9. Perusal of the decisions relied upon by Mr. Hemal Shah, learned counsel of the applicant especially in the case of the Gujarat High Court in Special Civil Application No. 7838 of 2012 and other decisions is that what was under challenge in those proceedings, was the issue whether the suit at all could have been tried as a summary procedure. What the learned counsel for the applicant therefore misses to suggest is that it cannot be a case where powers under O. 7-R.11 could have been invoked to assail the procedure of trial of the suit that was an issue or a dispute that could be decided subsequent to the leave to defend application filed by him. What was disputed by him was the jurisdiction of the summary procedure and it would not fall within the parameters of the objections envisaged under O. 7-R.11 of the Code.” (Emphasis Supplied) 9.9 The High Court of Bombay, sitting at Nagpur bench in the case of SHUBANGI AND ORS. v. PRAKASH,9 holds that the absence of a specific averment regarding what has been stated in 9 WP 3352 of 2023, Dated 21.12.2023 52 Order XXXVII Rule 2(1)(b) of the CPC, has to be considered in the context of the position that the plaint has to be read as a whole, in order to ascertain the compliance with the requirement of law. The classes of suits as enumerated in clauses (a) and (b) of Order XXXVII Rule 1(2) of the CPC would be those in respect of which summary jurisdiction can be exercised and Order XXXVII Rule 1(1) of the CPC, is a substantive provision, which creates the jurisdiction right, and Order XXXVII Rule 1(2) of the CPC lays down the parameters for exercise of such jurisdiction. Order XXXVII Rule 2 of the CPC is only a rule of pleading, which would stand satisfied, if substantial compliance with the same is pointed out. It holds as follows: “11. Jatin Khanna alias Rajesh Khanna (supra) holds that in respect of matters that are specifically dealt by Order 37 of CPC, the Court is required to apply only the special procedure provided in the various provisions contained in the said Order and cannot apply the provisions that are applied. When a suit is instituted in the ordinary procedure when one chooses to avail the summary or special procedure provided by Order 37 of CPC, the parties to the suit, viz., the plaintiff and the defendant are required to comply with that special procedure in respect of the matters specially dealt in that order and they cannot avail of the ordinary procedure in respect of those matters that are specifically provided by the summary or special procedure of Order 37 of CPC. What is necessary to note is that Jatin Khanna alias Rajesh 53 Khanna (supra) was a case in which what fell for consideration was the contention that the summons of the suit had not been served on the defendant in Form No. 4 of Appendix B and (ii) that the copies of the plaint and the enclosures had not been served on the defendants and they were received by their counsel on 8th November 1978 and therefore the suit cannot be proceeded with and tried under Order 37 of CPC. Though it has been held that the provisions of Order 37 of CPC were mandatory in as much as they prescribed a special procedure for summary suits, different that the one for a regular suit, the position has been stated in a generalised way. The specific plea regarding Order 37 Rule 2(b) of CPC did not fall for consideration there. 12. Mafatlal Finance Limited (supra) relies upon Randerian & Sing Pvt. Ltd. Vs. Indian Overseas Bank, in Appeal No. 1060/1986 in Summons for Judgment No. 307/1986 in Summary Suit No. 3212/1989 dated 24.02.1987 and the Judgment of another Division Bench of the Court in Hydraulic and General Engineering Ltd. Vs. UCO Bank, (1998) I LJ 793, which have been overruled. 13. Raghunath Rai Bareja and Another (supra) has been relied upon by Mr. Maheshwari, learned counsel for the petitioners, to contend that the provisions of Order 37 of CPC have to be interpreted literally as there is no ambiguity in the provisions. In Raghunath Rai Bareja and Another (supra), it has been held that the literal rule of interpretation really means that there should be no interpretation, in other words, one should read the statute as it is, without distorting or twisting its language. 14. The absence of a specific averment regarding what has been stated in Order 37 Rule 2(b) of CPC, has to be considered in the context of the position that the plaint has to be read as a whole, in order to ascertain the compliance with the requirement of law. This is so for the reason that it is the substance and not the form which is material. A litigant cannot be non-suited or denied the benefit of a provision, for not adhering to a specific language or phrase, if the averments in the plaint are sufficient enough to indicate a substantial compliance. In 54 this context, what has been held in Syed Dastagir Vs. T. R. Gopalakrishna Setty (1999) 6 SCC 337, in the contextual background of the requirement of an averment as to readiness and willingness, in a suit for specific performance, as contained in Section 16 (c) of the Specific Relief Act, would aptly cover the position, which is as under :.... 15. Thus it is the substance and not the Form, which is material, for the purpose of deciding the satisfaction of the requirement of a provision of the law. …….. …….. …….. 17. In my considered opinion, the very position, that the plaint in its heading states that it is one under Order 37 of CPC and the averments in paras 22 to 24 specifically state that it is one, which is governed by the provisions of Order 37 of CPC on the ground that cheques had been issued and accounts have been settled and the suit is based upon that premise, would indicate substantial compliance with the requirement of Order 37 Rule 2 (1) (b) of CPC. Even considering what has been held in Khera Handloom Supply (supra) that there has to be substantial compliance, in light of the above averments, it can be said that the requirement of Order 37 Rule 2 (1)(b) of CPC are concerned the same would be indicated to have been satisfied. It would also be material to note that it is in fact Sub-Rule (1) of Rule 1 of Order 37 of CPC, which are the substantive provisions, which creates the jurisdiction, right, and Sub-Rule (2) of Rule 1 of Order 37 of CPC which lay down the parameters for exercise of such jurisdiction, enumerating that the classes of suits as enumerated in clauses (a) and (b) of Sub-Rule 2 of Rule (1) of Order 37 of CPC would be those in respect of which summary jurisdiction could be exercised. Rule 2 of Order 37 of CPC on the other hand requires that in addition to what has been provided in Order 37 Rule (1) Sub-Rule (2) of CPC, what should be pleaded in the plaint and is thus a rule of pleading, which as held in Khera Handloom Supply (supra) would stand satisfied if substantial compliance with the same is pointed out, which in the instant matter as pointed out above is there. This position has 55 been considered in Hrishikesh (supra) [para 31] after considering Khera Handloom Supply (supra), which I concur.” (Emphasis Supplied) 10. From a reading of the scheme of Order XXXVII and the law laid down by the Apex Court and various High Courts, as afore- quoted, the following position emerges: (i) On a cursory perusal at the plaint, if it appears to be in order, complying with all the three clauses under Order XXXVII Rule 2(1) of the CPC, and if it falls within the classes mentioned in Order XXXVII Rule 1(2) of the CPC, the concerned Court has to mandatorily issue summary summons under Order XXXVII Rule 2(2) of the CPC in Form No.4 of Appendix B of CPC. (ii) The concerned Court must decide the issue of maintainability at the threshold and before issuing summons to the defendant, the concerned Court can only have a preliminary scrutiny of the plaint to find out as to whether the suit is one falling under Order XXXVII of the CPC and is in accordance 56 with Order XXXVII of the CPC, but such inquiry has to be limited. (iii) The concerned Court at the stage of entertaining the suit, before issuance of summary summons, cannot look into the merits of the dispute involved and the probable defences that would be taken by the defendants and come to the conclusion that the suit involves complicated disputed questions of fact and triable issues. (iv) The dispute as to whether the case should be tried as a summary suit or as an ordinary suit can only be adjudicated after issuing summary summons under Form No.4 to the defendant. (v) It is only upon issuance of summons under Form No.4, the defendant gets a copy of the plaint and other annexures/documents relied upon by the plaintiff as provided in Order XXXVII Rule 3(1) of the CPC, after which the defendant becomes aware of the case pleaded by the Plaintiff. 57 (vi) It is only after the issuance of the summons under Form No.4 along with the copy of the plaint and annexures, the defendant may enter appearance. (vii) The defendant does not have a right to be heard and defend the suit, until summary summons in Form No.4 is issued upon him and he enters appearance. (viii) It is only when the defendant enters appearance, the plaintiff can serve on the defendant summons for judgment in Form No.4-A, in Appendix B of the CPC. It is only then, the defendant may seek leave to defend the suit. 11. What is sought by the petitioner in the suit is for issuance of summons for a summary trial, under Form No.4 of Appendix-B. What the Court would do, is issuing summons in Form No. 1 of Appendix-B. Form No.1 reads as follows: 58 “APPENDIX B PROCESS No. 1. SUMMONS FOR DISPOSAL OF SUIT (O. 5, rr.1.5.) (Title) To . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Name, description and place of residence.] WHEREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . has instituted a suit against you for you are hereby summoned to appear in this Court in person, or by a pleader duly instructed (and able to answer all material questions relating to the suit, or who shall be accompanied by some person; able to answer all such questions,...............on.................the................................... .....day.................of........................20.................., at.........................................O’clock in the................................................ noon, to answer the claim ; and as the day fixed for your appearance is appointed for the final disposal of the suit, you must be prepared to produce on that day all the witnesses upon whose evidence and all the documents upon which you intend to rely in support of your defence. Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence. Given under my hand and the seal of the Court, this..............day of................................. .......... 20 Judge NOTICE—1. Should you apprehend your witnesses will not attend of their own accord, you can have a summons from this Court to compel the attendance of any witness, and the production of any document that you have a right to call upon the witness to produce, on applying to the Court and on depositing the necessary expenses. 59 2. If you admit the claim, you should pay the money into Court together with the costs of the suit, to avoid execution of the decree, which may be against your person or property, or both.” Form No.1 is summons for disposal of the suit, which would be on a contest. Form No.4 deals with summons in a summary trial under Order XXXVII Rule 2 of the CPC and reads as follows: “No. 4 SUMMONS IN A SUMMARY SUIT (O. 37, r. 2) (Title) To.................................................... [Name description and place of residence.] WHEREAS........................... has instituted a suit against you under Order XXXVII of the Code of Civil Procedure, 1908, for Rs.................and interest, you are hereby summoned to cause and appearance to be entered for you, within ten days from the service hereof, in default hereof the plaintiff will be entitled, after the expiration of the said period of ten days, to obtain a decree for any sum not exceeding the sum of Rs....................and the sum of Rs..........................for costs, together with such interest, if any, as the Court may order. If you cause an appearance to be entered for you, the plaintiff will thereafter server upon you a summons for judgment at the hearing of which you will be entitle to move the Court for leave to defend the suit. Leave to defend may be obtained if you satisfy the Court by affidavit or otherwise that there is defence to the suit on the merits or that it is reasonable that you should be allowed to defend. 60 Given under my hand and the seal of the Court, this............................day of...........................20............ Judge.” What is prayed by the petitioner is a summary trial and therefore, under Order XXXVII Rule 2 of the CPC summons ought to have been issued for a summary trial. But, it is issued under Form No.1 which is for a regular trial in a suit. 12. The defendants have now filed their objections and an application seeking rejection of the plaint, which could have been done only in a summons issued under Form No.4. No doubt summons is issued under Form No.1, but that is an error. Therefore, on plain reading of the judgments interpreting Order XXXVII Rule 2 of the CPC and the prayer that is sought by the petitioner summons, ought to have been issued under Form No.4, if the suit was one under Order XXXVII of the CPC and was in compliance with all the clauses provided under Order XXXVII Rule 2(1) of the CPC. The concerned Court without recording anything to this effect, by an unreasoned order, has proceeded to issue summons under Form No. 1, thereby converting the summary suit into a regular suit. If after issuance of summons under From No. 4 61 and after the defendant enters appearance, the Court were to find that the matter ought to be tried as regular suit, it can always convert it to a regular suit. Therefore, the issue of summons under Form No.1 instead of Form No.4 without recording any reasons is, on the face of it, erroneous. 13. In light of issue nos. (i), (ii) and (iii) being answered in favour of the petitioner – plaintiff, issue No.(iv) does not merit consideration at this juncture. 14. For the aforesaid reasons, the following: ORDER (i) Writ Petition is allowed. (ii) Order dated 22-02-2025 passed by the XXIV Additional City Civil & Sessions Judge, Bengaluru in O.S.No.7263 of 2024 stands quashed. (iii) The matter is remitted back to the concerned Court to regulate the proceedings, in accordance with the observations made in the course of the order. 62 Consequently, pending application if any, also stands disposed. This Court places its appreciation for the able assistance rendered by Miss. Sai Suvedhya R., Law Clerk cum Research Assistant attached to this Court. Sd/- (M.NAGAPRASANNA) JUDGE Bkp/CT:MJ