Its really interesting to know about Order 37 of The Civil Procedure Code, 1908. It deals with those cases which will function under summary procedure. It is really very technical process. One should understand the process of a case under order 37 of CPC.
The courts and classes of suits to which the Order is to apply.
Order 37 Rule 1 provides that a case under summary procedure can be filed before Civil Judge , Additional District Judge , a judge of High Court and other courts as per the pecuniary jurisdiction of the court. A suit is generally filed through this process in case of recovery of any money on the basis of a written contract. Such cases are also filed upon bills of exchange, hundies and promissory notes. So you will find many persons filing this case to recover an amount on the basis of bounced cheque. The same dishonoured cheque may be used to file a criminal case under Section 138 of the Negotiable Instruments Act. So there can be two cases out of the same cause of action so far as dishonour of cheque is concerned. However we should now concentrate on the issue of Summary procedure under Order 37. What difference it makes? In other words , how summary procedure is different from ordinary procedure of a civil case? Lets examine the process of court under Order 37 CPC.
If someone files a case in court under Order 37 of CPC, the court is under judicial obligation to inquire about the facts of the case and to examine the documents produced along with the plaint in order to confirm that the same fulfils the requirements of Order 37 CPC. Suppose the Hon’ble judge considers that the plaint can not be heard under Summary Procedure, he may pass an order to treat this plaint as an ordinary civil suit. Here your suit is not dismissed as not applicable to Summary Procedure. So its good thing in court process.
In case of Order 37 of CPC, the court will pass a summoning order for the presence of the defendant. The summons of the suit shall be in Form 4 in Appendix B which the court will issue after filing of Process Form along with complete set of plaint with annexures by the plaintiff. These days in Corona era, a summons is being sent through email and whatsapp also.
How to Enter Appearance
Under this procedure, the defendant has no right to defend his or her case. The defendant has to enter his appearance either in person or by pleader within 10 days of the the receipt of the summons in Form 4 in Appendix B along with complete set of plaint and annexures. What will the defendant do for entering appearance in court. You got confused. Ok , I will tell you. Its very simple. The defendant shall file in Court an address for service of notice on him. It will be hardly one or two page application under heading “Application under Rule 3(1) of Oder 37, CPC on behalf of the defendant for Entering Appearance “. In this application the defendant has to mention that on such date he received summons and within stipulated period of 10 days since the receipt of summons, he is filing his application to enter appearance. Your work is over so far as the enter appearance is concerned. This application of entering appearance should also be sent to the plaintiff on his personal address or on the address of his advocate by registered post or email or whatsapp.
Summons for Judgement
Within 10 days of defendant’s entering appearance, the plaintiff has to file an application in the court under Order 37 Rule 3(4) for issuing the summons for judgment. This application will be supported by an affidavit by the plaintiff. Besides all these things , the plaintiff will also file an affidavit for Cause of Action. Now the plaintiff will serve on the defendant a summons for judgment in Form No.4A in Appendix B issued by the court along with the copy of the said application , supported affidavit and an affidavit verifying the cause of action and the amount claimed and stating that in his behalf there is no defence to the suit.
Leave to Defend
Rule 5 of Order 37 provides the way to file an application seeking leave to defend the case. The defendant may , at any time with 10 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 may appear to the Court or Judge to be just.
Generally the leave to defend is allowed if the defendant has a substantial defence to raise. One should properly describe his defence in his application and file all documents in his support. The court may refuse the leave to defend if the same is frivolous or vexatious.
The copy of the leave to defend application along with affidavit filed by the defendant is also served to the plaintiff within 10 days since receiving of Summons for Judgment. The plaintiff may file his reply to the Leave to Defend application and affidavit. The Court will hear arguments of both sides to decide whether the leave to defend the case should be granted or not.
It is further interesting to know 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.
At the hearing of summons for judgment 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.
Court also may pass any order for deposit of any security within any specified period by the defendant and on failure to give such security within specified time, the plaintiff shall be entitled to judgment forthwith.