Difference Between Summary Suit and Ordinary Suit Under CPC
Key Takeaways
- A summary suit is a special and comparatively faster civil procedure governed by Order XXXVII of the Code of Civil Procedure, 1908, whereas an ordinary suit follows the regular procedure prescribed under the CPC.
- Summary suits can be instituted only for specified categories of monetary claims, such as claims based on bills of exchange, hundies, promissory notes, written contracts, certain statutory debts and guarantees.
- In an ordinary suit, the defendant ordinarily has a right to contest the claim. In a summary suit, the defendant must follow the special procedure under Order XXXVII and obtain leave to defend after entering appearance.
- The defendant in a summary suit is generally required to enter appearance within 10 days of service of summons. Failure to comply with the prescribed procedure may entitle the plaintiff to judgment.
- Leave to defend may be granted unconditionally or subject to conditions depending upon the nature and strength of the defence.
- A decree passed in an ordinary suit may, where applicable, be challenged under provisions such as Order IX Rule 13 CPC, while a decree under Order XXXVII may be set aside under Order XXXVII Rule 4 where special circumstances exist.
- Although summary proceedings are designed for speedy disposal, once leave to defend is granted, the matter may proceed substantially like an ordinary civil suit, subject to the terms on which leave has been granted.
What Is a Summary Suit?
A summary suit is a special type of civil suit governed by Order XXXVII of the Code of Civil Procedure, 1908. It is designed to provide a quicker remedy in certain categories of cases where the plaintiff seeks recovery of a clearly ascertainable monetary liability.
LawBhoomi has separately explained the complete procedure and scope of summary suits under CPC.
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Unlike an ordinary civil suit, the defendant does not automatically obtain an unrestricted right to contest the claim. The defendant must first comply with the special procedure prescribed under Order XXXVII and, at the appropriate stage, obtain leave from the court to defend the suit.
The purpose of the procedure is to prevent a defendant from delaying recovery in cases where the claim is based upon documents or obligations that ordinarily provide a comparatively clear basis for determining liability.
However, summary procedure does not mean that a genuine defence can simply be ignored. Where the defendant raises a substantial or genuine defence, the court may grant leave to defend.
What Is an Ordinary Suit?
An ordinary suit is a civil suit instituted and tried according to the general procedure prescribed under the Code of Civil Procedure, 1908.
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The term “suit” itself is not exhaustively defined under the CPC. Broadly, it refers to a civil proceeding instituted by presenting a plaint before a competent civil court for enforcement of a civil right or remedy. The concept and scope of suits of civil nature under CPC are important for understanding the wider jurisdiction of civil courts.
Unlike a summary suit, an ordinary civil suit is not confined to the limited categories of monetary claims covered by Order XXXVII.
Ordinary suits may involve disputes relating to:
- Contracts and contractual obligations: Disputes may arise regarding performance, breach or enforcement of contractual rights and obligations.
- Possession or ownership of property: Civil courts frequently determine questions concerning possession, title and proprietary rights.
- Injunctions: A party may approach a civil court seeking preventive or mandatory relief according to the circumstances.
- Declaration of rights: Civil proceedings may be instituted for a declaration regarding legal status or legal rights.
- Damages and compensation: Monetary compensation may be claimed where a recognised civil wrong or breach gives rise to such a remedy.
- Recovery of money: Ordinary money recovery suits may be instituted where the requirements of the summary procedure are not satisfied.
- Partition and specific performance: Property partition and enforcement of contractual obligations are also common subjects of ordinary civil suits.
The defendant ordinarily has the right to enter appearance, file a written statement under CPC and contest the plaintiff’s allegations in accordance with the CPC.
Difference Between Summary Suit and Ordinary Suit
The principal difference between a summary suit and an ordinary suit lies in the procedure available to the defendant.
In an ordinary suit, the defendant ordinarily has a right to defend the proceedings once properly served with summons. In a summary suit, Order XXXVII imposes additional procedural requirements. The defendant must enter appearance and thereafter obtain leave to defend in accordance with the prescribed procedure.
Several other distinctions follow from this basic difference.
Governing Provisions
A summary suit is specifically governed by Order XXXVII of the CPC.
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An ordinary civil suit is governed by the general provisions of the CPC, including provisions relating to institution of suits, pleadings, summons, written statements, framing of issues, evidence and trial.
Order XXXVII is therefore a special procedural mechanism operating within the broader CPC framework.
Nature of Cases Covered
An ordinary suit may generally be instituted for enforcement of a civil right where the civil court has jurisdiction and the suit is not barred by law.
A summary suit, however, is available only for the classes of cases specified under Order XXXVII.
Order XXXVII applies, among other things, to suits based upon:
- Bills of exchange: Claims arising from qualifying bills of exchange may be brought through the summary procedure.
- Hundies: Suits based upon hundies are expressly recognised within the scope of Order XXXVII.
- Promissory notes: A qualifying claim based upon a promissory note may also fall within the summary procedure.
- Written contracts: A debt or liquidated monetary demand arising from a written contract may form the basis of a summary suit.
- Statutory monetary liabilities: Certain debts or liquidated demands arising under enactments may also be covered.
- Guarantees: A claim based upon a guarantee may fall within Order XXXVII where the claim against the principal is in respect of a debt or liquidated demand.
Bills of exchange and promissory notes are important forms of negotiable instruments governed by the Negotiable Instruments Act, 1881. Their respective legal characteristics also differ, particularly regarding the nature of the promise or order, parties and liability. These distinctions are discussed in detail under the difference between promissory note and bill of exchange.
Therefore, every money recovery suit is not automatically a summary suit.
Nature of the Plaintiff’s Claim
In an ordinary suit, the plaintiff may seek several kinds of civil remedies depending upon the cause of action.
In a summary suit, the relief must fall within Order XXXVII. The plaintiff must ordinarily seek recovery of a debt or liquidated monetary amount falling within the categories recognised under the Order.
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The plaintiff cannot simply label an ordinary civil dispute as a summary suit merely for obtaining faster relief.
Requirement in the Plaint
A plaint instituted under Order XXXVII must clearly indicate that the suit is being filed under the summary procedure.
The CPC requires the plaint to contain a specific averment that the suit is instituted under Order XXXVII and that no relief outside the scope of that Order has been claimed.
The prescribed inscription stating that the proceeding is “Under Order XXXVII of the Code of Civil Procedure, 1908” must also appear below the suit number.
A plaint under CPC is the formal document through which a civil suit is instituted and ordinarily contains the material facts, cause of action, jurisdictional particulars and relief claimed.
Such a special declaration is not required merely because an ordinary civil suit is instituted.
Right of the Defendant to Defend
This is one of the most important differences between summary suit and ordinary suit.
In an ordinary suit, the defendant ordinarily enjoys a right to contest the suit by filing a written statement and participating in the trial in accordance with the CPC.
In a summary suit, the defendant does not obtain the same unrestricted right to defend from the beginning.
The defendant must:
- Enter appearance within the prescribed period: The first procedural requirement is appearance in accordance with Order XXXVII.
- Respond to the summons for judgment: After appearance, the plaintiff may serve the prescribed summons for judgment.
- Seek leave of the court to defend the claim: The defendant must disclose grounds sufficient to justify permission to contest the claim.
If leave is refused, the plaintiff may become entitled to judgment.
This mechanism is intended to prevent sham or merely delaying defences from unnecessarily prolonging proceedings.
What Is Leave to Defend in a Summary Suit?
Leave to defend means permission granted by the court allowing the defendant to contest the summary suit on merits.
The court examines whether the defendant has disclosed a genuine, substantial or triable defence.
The Supreme Court has repeatedly dealt with the principles governing leave to defend. In IDBI Trusteeship Services Ltd. v. Hubtown Ltd., the Court explained the principles to be followed while deciding whether leave should be granted and whether conditions may be imposed.
Broadly, where the defence raises a genuine triable issue, the defendant should ordinarily be permitted to contest the suit. On the other hand, a completely sham or illusory defence does not automatically justify an unrestricted trial.
Depending upon the circumstances, leave may be:
- Unconditional leave: The defendant is permitted to contest the suit without being required to satisfy an additional monetary or security condition.
- Conditional leave: The court may permit the defence subject to appropriate conditions, such as deposit or security, where the circumstances legally justify such an order.
Time for Appearance in a Summary Suit
A significant procedural distinction concerns the time available to the defendant.
Under Order XXXVII, the defendant is ordinarily required to enter appearance within 10 days from service of summons.
The 10-day period relates to entering appearance and must not be confused with the ordinary timeline for filing a written statement in a regular civil suit.
After appearance has been entered, the subsequent procedure relating to summons for judgment and leave to defend follows.
In an ordinary suit, filing of the written statement is governed by the general CPC framework applicable to the particular category of suit.
What Happens If the Defendant Does Not Obtain Leave to Defend?
If the defendant fails to enter appearance in accordance with Order XXXVII, the consequences are considerably more serious than in an ordinary suit.
Similarly, where the defendant appears but fails to seek leave to defend, or where leave is refused, the plaintiff may become entitled to judgment in accordance with Order XXXVII.
This is one of the reasons why a summary suit can generally progress faster than an ordinary civil action.
Procedure After Leave to Defend Is Granted
Grant of leave substantially changes the course of a summary suit.
Once leave to defend is granted, the defendant is permitted to contest the plaintiff’s claim. The dispute may then proceed towards adjudication through pleadings, issues, evidence and other procedural stages, depending upon the circumstances.
Order XXXVII Rule 7 states broadly that, except where the Order itself provides otherwise, the procedure applicable to summary suits is the same as that followed in suits instituted in the ordinary manner.
Thus, the special nature of a summary suit is most significant at the preliminary stage concerning appearance and leave to defend.
Setting Aside a Decree in an Ordinary Suit
Where an ordinary suit proceeds ex parte against a defendant, Order IX Rule 13 CPC may become relevant.
Subject to the requirements of that provision, an ex parte decree may be set aside where the defendant establishes legally recognised grounds, including sufficient cause for non-appearance. The procedure and grounds for setting aside an ex parte decree under Order IX Rule 13 therefore differ from the special mechanism applicable to summary suits.
The test applied under Order IX Rule 13 is different from the special standard prescribed for decrees passed under Order XXXVII.
It is therefore inaccurate to state broadly that an ordinary civil court can never set aside its decree except through review. The CPC itself provides remedies against ex parte decrees in appropriate cases.
Setting Aside a Decree in a Summary Suit
Order XXXVII contains a special provision for setting aside a decree passed in a summary suit.
Under Order XXXVII Rule 4, the court may, in special circumstances, set aside the decree. It may also stay or set aside execution and grant leave to the defendant to appear and defend the suit where the court considers it reasonable to do so.
The Supreme Court in Rajni Kumar v. Suresh Kumar Malhotra explained that “special circumstances” refer to circumstances that are exceptional, extraordinary or uncommon. Non-service of summons may, depending upon the circumstances, constitute such a circumstance.
The power under Rule 4 is wider than merely setting aside the decree. It may also extend to matters concerning execution and permission to defend the suit.
Special Circumstances and Sufficient Cause
The expressions “special circumstances” and “sufficient cause” should not be treated as automatically identical.
Order IX Rule 13 generally deals with sufficient cause in the context of an ex parte decree in an ordinary suit.
Order XXXVII Rule 4 deliberately uses the expression “special circumstances”.
Courts have treated the latter as requiring circumstances of a more exceptional nature. What amounts to a special circumstance depends upon the facts of each case.
In addition, a defendant seeking relief under Order XXXVII Rule 4 may also be required to demonstrate facts that would justify granting leave to defend. Merely explaining absence may therefore not necessarily be sufficient.
Does Section 10 CPC Apply to a Summary Suit?
Section 10 CPC embodies the principle commonly known as res sub judice and restricts the trial of a subsequently instituted suit where the statutory conditions are satisfied.
The relationship between Section 10 and Order XXXVII was examined by the Supreme Court in Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd.
The Court did not hold that Section 10 is completely irrelevant to summary suits. Instead, it explained that the expression “trial” must be understood in the special context of Order XXXVII.
In a summary suit, the trial in the relevant sense begins after leave to defend is granted. Therefore, the court may proceed through the preliminary stages of the summary procedure, including dealing with the summons for judgment and leave to defend, despite the Section 10 issue.
Accordingly, the proposition that res sub judice “does not apply at all” to summary suits is too broad.
Is Res Judicata Inapplicable to Summary Suits?
It is also unsafe to state generally that the doctrine of res judicata under Section 11 CPC never applies to summary suits.
A suit instituted under Order XXXVII remains a civil suit under the CPC. Whether Section 11 applies depends upon whether its statutory requirements are satisfied, including whether the relevant matter was directly and substantially in issue and was finally decided by a competent court.
The summary nature of the procedure does not, by itself, create a universal exemption from principles governing finality of judicial decisions.
Summary Suit vs Ordinary Suit: Comparison Table
| Basis | Summary Suit | Ordinary Suit |
| Governing provision | Mainly Order XXXVII CPC | General provisions of CPC |
| Nature | Special and expedited procedure | Regular civil procedure |
| Scope | Restricted categories of claims | Broad range of civil disputes |
| Typical claims | Bills, hundies, promissory notes and specified liquidated monetary claims | Property, contracts, injunctions, damages, declarations and other civil claims |
| Right to defend | Subject to Order XXXVII procedure and leave to defend | Ordinarily available as a matter of regular procedure |
| Appearance | Generally required within 10 days of service | Governed by ordinary CPC procedure |
| Leave of court | Leave to defend is required | No equivalent general requirement |
| Failure to defend | May result in judgment for plaintiff under Order XXXVII | Ordinary ex parte/default procedure may apply |
| Setting aside decree | Order XXXVII Rule 4 and special circumstances | Order IX Rule 13 may apply to an ex parte decree |
| Nature of grounds | Special circumstances under Rule 4 | Sufficient cause under Order IX Rule 13 |
| Speed | Intended to provide quicker adjudication | Usually involves the full ordinary trial process |
| Procedure after defence allowed | May substantially follow ordinary suit procedure | Ordinary procedure continues throughout |
Why Is a Summary Suit Faster Than an Ordinary Suit?
A summary suit is comparatively faster because the defendant cannot automatically prolong proceedings merely by denying the plaintiff’s case.
Before obtaining a full trial, the defendant must disclose a defence sufficient to justify leave.
Where no genuine defence exists, the matter can therefore be decided without going through every stage normally associated with an ordinary civil trial.
At the same time, the summary procedure must not be treated as a mechanism for denying a defendant a genuine opportunity to contest liability. Courts are required to balance speedy recovery against the requirement of a fair adjudication.
Conclusion
The difference between summary suit and ordinary suit primarily lies in the procedural safeguards and restrictions governing the defendant’s right to contest the claim.
An ordinary suit follows the general CPC procedure and normally allows the defendant to defend the claim through a written statement and trial. A summary suit under Order XXXVII follows a specialised procedure intended for specified monetary claims where prolonged litigation may not be necessary.
The defendant in a summary suit must enter appearance within the prescribed period and obtain leave to defend. If a genuine triable defence exists, the court may grant such leave, either unconditionally or on appropriate terms.
Another significant distinction concerns decrees. An ex parte decree in an ordinary suit may be dealt with under Order IX Rule 13 where its requirements are satisfied, while Order XXXVII Rule 4 permits a decree in a summary suit to be set aside where special circumstances exist.
Thus, summary suits provide an expedited remedy, but they do not dispense with judicial fairness. Their purpose is to prevent unnecessary delay where the claim is sufficiently clear while preserving an opportunity to defend cases involving genuine disputes.
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