SUMMARY TRIAL

By | April 17, 2017

 

  • The objective of a summary trial is to prevent unnecessary obstruction by a defendant who has no defence and come to a conclusion in an expeditious manner.
  • A summary trial is one where the defendant is not be allowed to put up a defence where he has none.
  • Order 37 deals with the same.
  • Summary trials may be conducted in High Courts, City Civil Courts or Courts of Small Causes. (rule 1)
  • It may also be conducted in certain other courts. However, the High Court may by notification in the Official Gazette order that only a particular category of suits may be tried by such court.
  • Rule 1 also provides the subject matter pertaining to a summary trial.
  • A summary trial shall be allowed only in the following cases-

(a)    Where there are suits upon bills of exchange, hundis and promissory notes

(b)   Where there are suits relating to a debt or a liquidated demand for money  based on a written contract OR is fixed by an enactment to be a debt or a fixed sum of money which is not a penalty OR that which is based upon a guarantee where the principal debtor is liable only for a debt or a liquidated demand for money.

 

  • Rules 2 and 3 deal with the procedure in case of a summary trial.
  • The plaintiff while filing a plaint under this provision shall specifically state so and shall also state that the relief claimed by him falls within the ambit of the provision.
  • Thereafter, summons shall be served on the defendant stating that the plaintiff wishes that the suit be tried summarily. The summons shall be in form 4 in appendix B or such other form as may be prescribed.
  • The summons shall also be accompanied by the plaint and any other annexure to the same.
  • The defendant shall be deemed to have been duly served with the summons where the same is left at the address given by him for such service.
  • The defendant may within 10 days from the date of service of summons enter an appearance either personally or by way of his pleader.
  • A notice of such appearance shall be given to the plaintiff or his pleader on the date when the appearance is entered.
  • The plaintiff shall thereafter serve on the defendant, summons for judgment under Form 4-A stating the cause of action, amount claimed and also stating that he believes that there is no defence.
  • This summons is returnable within a period of 10 days.
  • The defendant within such period of 10 days may apply to the court on such summons for leave to defend the suit by stating on affidavit such facts as may entitle him to defend the suit.
  • The court shall not refuse leave to defend unless where there is no substantial defence or unless the claim of the defendant is frivolous and vexatious.
  • Where the defendant admits that he is entitled to pay a certain amount claimed by the plaintiff, the defendant will not be allowed leave to defend unless he deposits such amount in court.
  • At the hearing of the summons for judgment, where the defendant has not applied for leave to defend or where he has applied for such leave but the same has been rejected, the plaintiff shall be entitled to the judgment.
  • Where the defendant is allowed leave to defend, the court shall require him to pay certain security and if he does not pay such security within the stipulated time period, the court shall decide in favour of the plaintiff.
  • The court may for sufficient cause shown excuse any delay on the part of the defendant in entering his appearance or applying for leave to sue.
  • Where the court passes a decree in favour of the plaintiff, it may if it deems necessary set aside such decree or its execution and give the defendant leave to defend the suit on terms as it deems fit. (Rule 4)
  • The court may even order that a bill of exchange, hundi or promissory note upon which the suit is founded be deposited with an officer of the court. (Rule 5)
  • The proceedings may even be stayed till the plaintiff gives security for such bill of exchange, hundi or promissory note.
  • The holder of a dishonoured bill of exchange or promissory note shall have the same remedies for expenses incurred by him for noting the non-acceptance or non-payment caused by the dishonour as that is available in case of recovery of a certain amount under such negotiable instrument. (Rule 6)
  • The difference between summary suits and ordinary suits is as follows-

(a)    In summary suits, the defendant is not allowed to defend except on the fulfillment of certain conditions and with the leave of the court

(b)   In summary suits, a decree may be set aside in special circumstances. In ordinary suits, the decree of a trial court may be set aside only on review and not in other circumstances.

 

  • In the case of Kironmoyee Dassi v. Chatterjee AIR 1949 Cal 479, the Calcutta High Court upheld the principles relating to summary suits under Order 37 and stated that where the defendant satisfies the court that he has a good defence to the claims of the plaintiff, he may be allowed to proceed to defend the suit. However, this shall not be allowed where the defendant has no defence or where the defence set up by him is illusory.

Submitted By –

Ankit

(Editor @ Legal Bites)

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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