Neebha Kapoor Case :- Summary Suit & Ordinary Suit

The summary suit has a faster remedy than the ordinary suit. In Neebha Kapoor case,[8] court observed that, justice hurried is justice buried. If the leave to defend is granted than the summary suit also follow the same procedure as the suit is instituted in the ordinary manner. Ordinary suit proceedings has a wider scope for the setting aside the ex parte decree, but in summary suit it has a very narrow scope for the setting aside the ex parte decree.

1. The term suit is not defined under the C.P.C, 1908. In the comprehensive sense the word suit is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords.[1]The term suit has a wider interpretation and it is a generic term taking within its sweep all proceedings initiated by a party for realisation of the right vested in him in law. In common parlance, the term suit includes all the proceedings of a judicial or quasi judicial nature in which disputes of aggrieved parties are adjudicated before an impartial forum.[2]

   The term summary suit is a specific legal procedure used for enforcing a right in an effective manner as the courts pass judgment without hearing the defence. While this prima facie would appear to violative of the fundamental principle of natural justice, Audi Alteram Partem, nobody should be condemned unheard, this procedure is only used in certain restricted cases where the defendant has no reasonable defence.

2. Order XXXVII provides summary procedure in suits restricted to the negotiable instruments or where the plaintiff seeks to recover debt or liquidated amount. Whereas the ordinary suit has don�t have any restriction to certain matters, these suits are filed on the matters which are in civil nature.
3. Ordinary suits as well as summary suits are initiated by the institution of plaint. While writing the cause title for ordinary suit, it is filed under section 26, Order VI Rule 1 of C.P.C, but for Summary suit, it is filed under Order XXXVII of C.P.C.
4. In ordinary suit, a defendant is entitled to defend the suit as a matter of right and no need to apply leave from Court to defend. In summary suit the defendant is not entitled as a matter of right to defend the suit. In order to defend, Defendant has to acquire the leave from the Court and if he does not apply for such leave within the prescribed period or if Court refused such leave, the plaintiff gets a decree in his favor.
5. In a summary suit, the defendant must prove his fact within 10 Days. In an ordinary suit time limit is 30 Days for filing a written statement.
6. In Ordinary suit ex-parte decree is being set aside as per the order IX rule 13 by considering the sufficient cause for the absence of defendant. In summary suit ex-parte decree is being set aside as per the order XXXVII rule 4 by considering the special circumstance for the absence of defendant.
7. The expression special circumstances is not synonymous to sufficient cause.
   The reasons offered to explain the special circumstances, should be such that a person absolutely had no possibility of appearing before the court on a relevant day. For instance, there was a strike and all the buses were withdrawn and there was no other mode of transport, so as to go from, the place he resides to the place where the court is situated, may constitute “special circumstances“.But if defendant pleaded that the bus he wanted to board, he missed it and as such he could not appear before the court, may constitute “sufficient cause”, but not a ‘special circumstance’. Thus a ‘special circumstance’ would take with it a ’cause’ or ‘reasons’, which prevents a person in such a way that it almost impossible for him to attend the court or to perform certain acts which he is required to do.Thus the ‘reason’ or ’cause’ found in “special circumstances” is more strict or more stringent than in “sufficient cause”.

   What would constitute ‘special circumstances’, would depend upon the facts of each case. Making out of special circumstances (for the purpose of setting aside the ex parte decree) may constitute a ‘sufficient cause’, but not vice versa.[3]

8. Res sub judice is applicable to Ordinary suits only. It is not applicable to Summary suit under order XXXVII. The word trial in section 10, in the context of summary suit, cannot be interpreted to mean the entire proceedings starting with institution of suit by loading a plaint. The concept of trial as contained in section 10 of C.P.C is applicable only to a regular/ordinary suit and not to a summary suit filed under order XXXVII of C.P.C. If section 10 is made applicable to summary suits, the very object of making a separate provision for summary suits will be frustrated.[4]
9. Res judicata is applicable to ordinary suits only, but not applicable for summary suits.If the proceedings is of a summary nature not falling within the definition of a suit, it may not be treated for the purpose of section-11. [5]
10. Limitation for set aside an ex parte decree:
    • An application under order IX rule 13 must in accordance with the bounds of Article 164 of limitation act, 1963.
    • Limitation for filing an application for setting aside a decree under Order XXXVII is irrespective of the circumstances in which a decree is passed in a suit filed under Order XXXVII, the period of limitation would be governed by Article 137 of the limitation act, 1963. [6]
11. Order XXXVII is a complete code in itself and it does not need any assistance of section-5 of limitation act, 1963 for condonation of delay.[7] But in ordinary suits, Section 5 of limitation act, 1963 assists for condonation of delay unless and until expressly or impliedly barred.
12. In summary suits, decree is easier to obtain for the Plaintiff and will be much tougher for the defendant. Because the Defendant has an added burden as he needs to prove why he should be allowed to put up the defence. But in ordinary suits, defendant no need to prove why he should be allowed to put up the defence.

Conclusion:
The summary suit has a faster remedy than the ordinary suit. In Neebha Kapoor case,[8] court observed that, justice hurried is justice buried. If the leave to defend is granted than the summary suit also follow the same procedure as the suit is instituted in the ordinary manner. Ordinary suit proceedings has a wider scope for the setting aside the ex parte decree, but in summary suit it has a very narrow scope for the setting aside the ex parte decree.

End-Notes:

1. Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge, 1989 Supp (2) SC 2240
2. Ethiopian Airlines v. Ganesh Narain Saboo, ( (2011) 8 SCC 539)
3. Karumilli Bharathi vs Prichikala Venkatachalam, 1999 (3) ALT 407
4. Indian Bank v. Maharastra State Cooperative Marketing Federation Ltd., (1998) 5 SCC 69
5. Pandurang Ramchandra Mandlik v. Shantibai Ramchandra Ghatge, 1989 Supp (2) SC 2240
6. Prabha P. Shenal v. Crown Maritime Co. (India) (P) Ltd., 2008 SCC Online Bom 766
7. Swarovski India (P) Ltd. V. SPA Agencies, ILR (2009) 6 Del 541.
8. AIR 2008 SC 1117