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This article is written by Adarsh Anand Amola of 7th Trimester of IIM Rohtak, an intern under Legal Vidhiya


This article delves into the intricacies of summary suits governed by Order XXXVII of the Code of Civil Procedure. It explores the delicate balance between expeditious justice and the fundamental principle of “Audi Alteram Partem” and offers insights into the concept of “special circumstances.” Contrasting summary suits with regular suits, it uncovers their unique role in the legal landscape, shedding light on the critical issues they address. This examination underscores the importance of special circumstances as a strict criterion for non-appearance in summary suits and its distinction from “sufficient cause.”

Keywords: Summary Suit, Audi Alteram Partem Special, Circumstances, Res Judicata, Legal Procedure


Order XXXVII of the Code of Civil Procedure, 1908, introduces a distinctive legal process known as the summary suit, which serves as an effective means of enforcing rights, as judgments are issued without hearing the defendant’s side. While this may seem to contradict the fundamental principle of natural justice, “Audi Alteram Partem” (hear the other side), the summary suit is only utilized when the defendant lacks a valid defense, and it is limited in its applicability to specific subject matters. Consequently, a significant query arises: what constitutes a lack of defense? This query lies at the heart of the practical use of Order XXXVII and is explored in this paper, taking into account numerous recent legal judgments and provisions within this order.

Additionally, this assignment delves into the key characteristics of summary suits, drawing comparisons between summary suits and regular suits. This comparative analysis provides insight into the unique role that summary suits play in the civil justice system and the issues they aim to address.


A summary suit, as stipulated in Order XXXVII of the Code of Civil Procedure, is a legal process employed to promptly enforce a right, in contrast to regular suits, where courts do not entertain the defendant’s defense. However, it does not run afoul of the principle of “Audi Alteram Partem,” which asserts that no one should be condemned without being heard, as it is exclusively applied in specific, well-defined cases (explained further in the scope section) where the defendant lacks a legitimate defense. This issue, which involves intricate questions of both law and fact, has been extensively examined thereafter.


The underlying objective of the summary procedure is to expedite the hearing and resolution of a case, preventing unwarranted delays caused by defendants with either non-existent or frivolous and vexatious defenses[1]. Additionally, it aims to facilitate the swift disposition of legal matters.[2]

The Gujarat High Court, in its delineation of the purpose of summary suits, has expressed that the fundamental goal of enacting Summary Suits is to stimulate trade and industry by instilling confidence in the commercial community. This confidence pertains to the timely resolution of their claims for liquidated sums, ensuring that such claims are not tied up in lengthy legal processes that block their funds for extended periods.[3]


  •   Legal actions involving bills of exchange, hundies, or promissory notes.
  •   Any lawsuit initiated by the plaintiff to reclaim a debt or a sum of money owed by the defendant as per a written contract.
  •   Cases defined by a statute in which the amount to be retrieved is a specific sum of money, a debt excluding penalties, or a guarantee, particularly when the claim against the principal pertains solely to a debt or money.

The rationale for introducing the summary procedure was to ensure a swift legal process for the recovery of funds in cases where the defendant lacks a valid defense, thereby eliminating any unjustifiable delays.


The provisions within this legal code, which establish specific trial procedures for certain categories of cases and specific courts, do not contravene Article 14 of the Constitution. This is because they are grounded in rational classifications.[4] Additionally, Rule 8, formulated under the Bombay Rents Hotels and Lodging Hall Rates (Controls) Act of 1947, which permits the initiation of ejectment suits in accordance with Order XXXVII, is not in violation of the law.[5]

  • Promissory Notes, Bills of Exchange, and Hundis: This order is applicable to promissory notes, bills of exchange, and hundis. The Negotiable Instruments Act, in Sections 4 and 5, provides definitions for a ‘promissory note’ and a ‘bill of exchange.’ However, neither the Negotiable Instruments Act nor the legal code furnishes a definition for the term ‘Hundi.’
  • Account Payee Cheques: The rule extends to all suits concerning bills, hundis, and promissory notes, whether or not they are negotiable. Consequently, a legal action stemming from a crossed cheque with the endorsement ‘account payee only’ can be initiated through the summary procedure.[6]
  • Debt or Clearly Defined Claim : A debt refers to an existing obligation to pay a sum of money, even if the exact amount is not currently determinable, whether it is due for immediate payment or at a later date. The former constitutes a debt that is currently owed, while the latter represents a debt that will become due in the future. However, a sum of money that becomes payable only upon the occurrence of a specific event or condition does not qualify as a debt until that event or condition has transpired.[7] On the other hand, a “clearly defined claim” pertains to an amount that can be made definite through mathematical calculation using information or knowledge possessed by the party who needs to make the payment. A claim for damages expressed as a percentage constitutes a clearly defined amount according to the provisions of Order XXXVII.[8]


In a case filed under Order XXXVII involving a promissory note, a request was made for an amendment to introduce additional facts and documents, thereby holding the defendant liable as guarantors. The court determined that, considering the specific circumstances of the case, the amendment, even though delayed, should be permitted.[9]


A summary suit can be initiated in High Courts, City Civil Courts, Courts of Small Causes, and any other court specified by the High Court. High Courts have the authority to modify, expand, or restrict the categories of cases falling under this order. As elucidated earlier, the primary purpose of summary suits is to facilitate swift redressal in commercial transactions, and as such, they can only be filed in cases involving specific types of documents. These documents include bills of exchange, hundies, and promissory notes[10], as well as suits where the plaintiff’s sole objective is to recover a debt or a clearly defined sum of money owed by the defendant, with or without interest, arising from a written contract, an enactment, or a guarantee where the principal’s liability pertains solely to a debt or a clearly defined sum.[11]


The procedure for summary suits is outlined in Rules 2 and 3. Rule 2 stipulates that once the summons of the suit has been issued to the defendant, the defendant must appear, and the plaintiff will then serve a summons for judgment on the defendant. In a summary suit, the defendant does not have the right to defend unless they enter an appearance. In the absence of such action, the plaintiff is entitled to an immediate decree, which can be executed without delay.

Rule 3 governs the manner of serving summons and the process of seeking leave to defend. The defendant must apply for leave to defend within ten days of receiving the summons. This leave will only be granted if the affidavit submitted by the defendant contains facts that are considered sufficient to justify a defense. The court or judge may grant leave unconditionally or impose terms they deem just.[12]

However, leave to defend should not be denied unless the court is convinced that the defendant’s claims are frivolous and vexatious based on the facts presented. If the defendant acknowledges owing a portion of the amount claimed by the plaintiff, leave to defend will only be granted if the defendant deposits the admitted sum with the court.[13]

If the defendant fails to apply for leave to defend or if such leave is denied, the plaintiff is entitled to an immediate decree at the hearing of the judgment summons. The court or judge may, upon showing sufficient cause by the defendant, excuse any delay in the defendant’s appearance or in their application for leave to defend the suit. It’s important to note that there is no fixed rule governing when leave to defend can be granted; each case must be decided based on its unique facts and circumstances. The court’s discretion should be exercised judiciously and in adherence to the principles of natural justice that underlie our legal system.[14]


Types of Interpretations to Be Applied

Given that the objective of summary suits is to serve as an expedited mechanism for delivering justice, the language in Order XXXVII should be construed liberally, a perspective that has been affirmed in numerous legal judgments. To illustrate, the term “written contracts” has been interpreted broadly, encompassing items such as invoices and bills, as seen in the case of KIG Systel Ltd v. Fijitsu ICIM Ltd.[15]


Summary suits can be filed in various locations, which include the defendant’s residence, the location where the defendant conducts business for personal profit, or the place where the entire or part of the cause of action occurred. The choice of the court, whether it’s the High Court or District Court, depends on the pecuniary jurisdiction.

As for the time limit to initiate a summary suit, it must be filed within three years from the date when the cause of action originated. This limitation period is a critical aspect and cannot be disregarded.


M/S. Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd.

In the case of M/S. Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd.[16], the essence of the various rulings under Order 37 CPC can be summarized as follows: If the defendant can demonstrate a strong defense in court, they may be granted unconditional leave to defend. The defendant may also obtain unconditional permission to defend if they present a summary issue indicating a reasonable, genuine, or acceptable defense, even if it’s not a strong one. If the defendant’s affidavit reveals facts suggesting they might be able to defend against the plaintiff’s claim during the trial, the court may take this into consideration when granting leave to defend. However, if the defendant lacks a valid defense or their defense is false, fictitious, or without merit, they may not be granted leave to defend. In cases where the defendant has no legitimate defense but is allowed to attempt to establish one, the court may protect the plaintiff’s interests by requiring the sum claimed to be paid into court or otherwise secured.

S.S. Steel Industry v. Guru Hargobind Steels (2019)

In the case of S.S. Steel Industry v. Guru Hargobind Steels[17], the Delhi High Court clarified that Order 37 Rule 2(3) of the Civil Procedure Code (CPC) explicitly stipulates that the defendant must appear in the civil case, and in the absence of their presence, the statements in the plaintiff’s complaint will be considered as admitted. As a result, the plaintiff is entitled to a judgment for an amount not exceeding what was mentioned in the summons. Given the strict provisions of Order 37 Rule 2(3) CPC, the trial court does not have the authority to assess whether the suit meets the requirements of Order 37 CPC or not. Once a summons in the specified format has been issued and properly served, the defendant is obligated to enter an appearance within the specified timeframe; if they fail to do so, the allegations in the complaint are deemed acknowledged, and the plaintiff is granted a decree without delay.


The primary distinction between ordinary suits and summary suits lies in the fact that in the latter, the defendant is granted the opportunity to mount a defense only if leave to defend is authorized. Unlike ordinary suits, summary suits are limited to issues related to bills of exchange, promissory notes, contracts, enactments, and specific types of guarantees. Remarkably, the principle of Res Judicata, which bars the same matter from being litigated again, does not apply to summary suits. Consequently, summary suits can be brought forth directly and substantially for matters previously addressed in a regular suit.

In summary suits, if the defendant does not appear, a favorable judgment for the plaintiff is readily issued. In contrast, in ordinary suits, multiple summonses are typically served, and only after their non-appearance is an ex parte order granted. Consequently, the process for setting aside an ex parte decree in summary suits is more rigorous and stringent, necessitating the presentation of special circumstances for non-appearance. In ordinary suits, the bar is lower, with only sufficient cause needing to be demonstrated. The distinction between special circumstances and sufficient cause is elucidated further below.


The term “special circumstances” lacks a precise definition in the Code of Civil Procedure, and it cannot be precisely defined by the court because human problems are diverse and intricate. In its standard dictionary sense, it signifies something of an exceptional, extraordinary, significant, or uncommon nature. It stands in opposition to the terms common, ordinary, or general. Attempting to enumerate such circumstances is neither practical nor advisable. Each case must be evaluated based on its particular facts and circumstances, and no universally applicable standard can be set.[18]


These two terms have been distinctively compared in the case of Karumili Bharathi v. Prichikala Venkatchalam.[19] The explanations provided by the defendant to substantiate special circumstances should be such that they demonstrate an absolute inability to appear before the court on a relevant day. For instance, if a strike occurred, resulting in the withdrawal of all buses and no alternative modes of transportation were available, this could constitute “special circumstances.” However, if the defendant were to assert that they merely missed the bus they intended to board and, as a result, couldn’t appear in court, this would constitute a “sufficient cause,” but not a “special circumstance.” Therefore, a “special circumstance” includes a “cause” or “reason” that obstructs a person’s ability to attend court or fulfill specific obligations to an extent where it is nearly impossible for them to do so. Consequently, the “reason” or “cause” associated with “special circumstances” is more stringent and demanding than that in “sufficient cause” and is contingent on the specific circumstances of each case.


Order XXXVII of the Code of Civil Procedure introduces summary suits, a unique legal process designed to expedite justice by granting judgments without hearing the defendant’s side. This process, although seemingly at odds with the principle of “Audi Alteram Partem,” is only invoked when the defendant lacks a valid defense and is applicable to specific subject matters. The concept of “special circumstances” is essential, representing situations where defendants face nearly insurmountable barriers to appearing in court. Distinct from “sufficient cause,” “special circumstances” embody a stringent criterion. Res Judicata does not apply to summary suits, setting them apart from regular suits. In summary suits, non-appearance by the defendant results in swift judgments, while in ordinary suits, multiple summonses are typically served before an ex parte order is granted. Special circumstances, as compared to sufficient cause, necessitate a higher threshold, making it nearly impossible for the defendant to attend court. The unique characteristics and legal framework of summary suits hold a pivotal role in the civil justice system, providing a mechanism for swift redress in specific commercial transactions.

[1] Kocharabhai ishwarbhai patel v. Gopal bhai C patel AIR 1973 Gujrat 29 (31)

[2] Bankyag B G Agarawal v. Bhagwanti Mehji 2001 (1) Bom LR 823 (DB)

[3] Navinchandra Babulal Bhavsar v Bachubhai Dhanabhai Shah AIR 1969 Gujarat 124 (128) DB

[4] CF Khemchand v. Hari AIR 1979 Del 7.

[5] Ramkarandas v. Bhagwaandas AIR 1965 SC 1144.

[6] Tailors Priya v. Gulabchand AIR 1963 Cal 36.

[7] Keshoram Industries v. Gheesi AIR 1999 Raj 69.

[8] Rjinder Kumar Khanna v. Oriental Insurance Co. AIR 1990 Del 278.

[9] Dena Bank v. Gautam Ratilal Shah AIR 1988 Bom 1.

[10] Order. XXXVII. R1(2)

[11] Order. XXXVII. R.1(2)b

[12] Mechelec Engineer and Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687: AIR 1977 SC 577.

[13] Id.

[14] Id.

[15] KIG Systel Ltd v. Fijitsu ICIM Ltd AIR 2001 Del 357.

[16] M/S. Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd. (1998)5 S.C.C. 354

[17] S.S. Steel Industry v. Guru Hargobind Steels C.R.P. 42/2019

[18] Rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315 at p. 318; TVC Skyshop Ltd. V. Reliance Communication and Infrastructure Ltd. (2013) 11 SCC 754: (2014) 1 SCC (Civ) 234.

[19] Karumili Bharathi v. Prichikala Venkatchalam 1999 (3) ALD 366


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