The Madras High Court has clarified that the special procedure under Order XXXVII of the Code of Civil Procedure for summary suits is mandatory and cannot be waived by an endorsement of no objection limited to setting aside an ex-parte order. The Court set aside a trial court order that accepted a written statement without following the prescribed sequence of summons for judgment and leave to defend, directing fresh consideration in accordance with the statutory scheme.
Background & Facts
The Dispute
M/s. Sai Associates, a proprietorship concern represented by its proprietor Mr. Raghava Rao E, filed a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 against M/s. Sew Infrastructure Ltd, represented by its Managing Director, seeking recovery of money. The suit was originally instituted as O.S. No. 411 of 2021 before the Subordinate Court, Poonamallee. The plaint contained the specific averments and inscription required under Order XXXVII Rule 2(1) of the CPC.
Key Facts
- The plaintiff filed the summary suit on an unspecified date in 2021 before the Subordinate Court, Poonamallee as O.S. No. 411 of 2021
- Summons in Form No. 4 under Order XXXVII Rule 2(2) was duly served on the defendant
- The defendant did not appear and was set ex-parte on November 9, 2022
- The Subordinate Court, Poonamallee, instead of decreeing the suit under Order XXXVII Rule 2(3), erroneously posted the matter for recording ex-parte evidence
- The suit was subsequently transferred to the Subordinate Court, Ambattur and renumbered as O.S. No. 253 of 2023
- In the Trial Court, the matter came to be posted for ex-parte evidence on April 6, 2023
- The defendant filed I.A. No. 1 of 2023 praying to set aside the ex-parte order along with a written statement
- On the said Interlocutory Application, the plaintiff's counsel endorsed no objection
- The Trial Court allowed the I.A., set aside the ex-parte order, and took the written statement on file
- On July 14, 2023, the plaintiff's counsel filed a memo objecting to the acceptance of the written statement without following the procedure under Order XXXVII Rule 3(3) of CPC
- The Trial Court rejected the memo by an adjudication order dated August 14, 2023, holding that the plaintiff could not retract from the summon procedure and that the written statement was filed
Procedural History
- Date unspecified, 2021: Original Suit filed as O.S. No. 411 of 2021 before Subordinate Court, Poonamallee under Order XXXVII CPC
- November 9, 2022: Defendant set ex-parte for non-appearance
- Date unspecified, 2023: Suit transferred to Subordinate Court, Ambattur and renumbered as O.S. No. 253 of 2023
- April 6, 2023: Matter posted for ex-parte evidence in Trial Court
- Date unspecified, 2023: Defendant filed I.A. No. 1 of 2023 to set aside ex-parte order with written statement
- Date unspecified, 2023: Plaintiff's counsel endorsed no objection on I.A.; Trial Court allowed I.A., set aside ex-parte order, took written statement on file
- July 14, 2023: Plaintiff's counsel filed memo objecting to acceptance of written statement without Order XXXVII Rule 3(3) procedure
- August 14, 2023: Trial Court rejected memo by adjudication order
- Date unspecified, 2023: Present Civil Revision Petition (CRP No. 3412 of 2023) filed under Article 227 of the Constitution
- October 26, 2026: Judgment delivered by Madras High Court
Relief Sought
The petitioner sought setting aside of the adjudication order dated August 14, 2023 passed by the Trial Court on the memo, and a direction to the Trial Court to follow the procedure contemplated under Order XXXVII Rule 3 of the CPC.
The Legal Issue
The central question was whether the Trial Court, after setting aside an ex-parte order in a summary suit instituted under Order XXXVII CPC, could accept a written statement without following the mandatory procedure prescribed under Order XXXVII Rule 3 - specifically, whether the defendant must first enter appearance, furnish notice of appearance to the plaintiff's counsel, and then face a summons for judgment in Form No. 4-A before being permitted to apply for leave to defend and file a written statement.
Arguments Presented
For the Petitioner
Learned counsel for the revision petitioner submitted that the Original Suit was duly filed under Order XXXVII CPC as a summary suit with all requisite averments and inscription. Summons in Form No. 4 under Rule 2(2) was served on the defendant. Upon the defendant's failure to appear, the Subordinate Court, Poonamallee ought to have decreed the suit under Rule 2(3) but erroneously posted it for ex-parte evidence. When the matter was transferred and the defendant filed I.A. No. 1 of 2023, the plaintiff's counsel endorsed no objection only for setting aside the ex-parte order, not for accepting the written statement. The Trial Court failed to follow the mandatory procedure under Order XXXVII Rule 3: after setting aside the ex-parte order, the defendant ought to have been directed to give notice of appearance under Rule 3(3), whereafter the plaintiff would serve summons for judgment in Form No. 4-A under Rule 3(4) supported by an affidavit. Only upon the defendant applying for leave to defend under Rule 3(5) and such leave being granted could a written statement be filed. The endorsement of no objection did not constitute a waiver of the special summary procedure.
For the Respondent
Learned counsel for the respondent contended that the defendant filed I.A. No. 1 of 2023 along with the written statement. By endorsing no objection on the same and receiving a copy of the written statement, the plaintiff's side waived the procedures contemplated under Order XXXVII CPC and thereby waived the special status of the suit. From that point onwards, the suit was to be treated as an ordinary suit and not as a summary suit. Accordingly, the Trial Court rightly rejected the plaintiff's memo and there was no irregularity or illegality in the same.
The Court's Analysis
The Court undertook a detailed statutory interpretation of Order XXXVII Rules 2 and 3 of the CPC. It extracted the relevant provisions for ready reference and analysed their syntactic and structural relationship.
"Order XXXVII Rule 2 (2) and Order XXXVII Rule 3 (1) must be read conjointly and a conjoint reading would show that upon institution of a Summary Suit, the plaintiff must serve summon on the defendant in said Form No.4 in Appendix B along with the plaint and the annexures thereto and the defendant may enter appearance within 10 days from receipt of such summons."
The Court rejected the misconception that the summons in Form No. 4 must be served twice - once for appearance and again with the plaint. It held that Rule 3(1) clearly states the plaintiff shall, "together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto." The sequence of clauses and the use of the phrase "summons under rule 2" (not "a copy of the summons under rule 2") confirmed that the summons in Form No. 4 must be accompanied by the plaint and annexures at the first instance itself.
The Court then laid out the mandatory procedural sequence:
- Upon institution, plaintiff serves summons in Form No. 4 with plaint and annexures (Rules 2(2) and 3(1))
- If defendant fails to appear within 10 days, court shall pass judgment under Rule 2(3)
- If defendant appears, they must furnish address for service and notice of appearance to plaintiff's counsel (Rules 3(1) and 3(3))
- Plaintiff then serves summons for judgment in Form No. 4-A with affidavit verifying cause of action, amount claimed, and belief that there is no defence (Rule 3(4))
- Defendant may apply for leave to defend within 10 days (Rule 3(5))
- Only if leave is granted (conditionally or unconditionally) can defendant file a written statement
The Court emphasized that non-compliance with these procedures does not result in automatic dismissal of the suit; rather, the suit loses its special nature as a summary suit and proceeds as a regular suit.
Applying this to the facts, the Court found no sufficient evidence on record to show whether the summons under Rule 2(2) was served along with the plaint and annexures as required under Rule 3(1) - a vital requirement for a suit to be considered a summary suit. Crucially, the Court held that I.A. No. 1 of 2023 was filed only to set aside the ex-parte order and did not relate to the written statement. The plaintiff's counsel's endorsement of no objection was made on that Interlocutory Application and therefore could not be construed as conceding to conduct the suit as a regular suit or waiving the Order XXXVII procedure.
The Verdict
The Civil Revision Petition was allowed. The Court set aside the adjudication order dated August 14, 2023 passed by the Trial Court on the memo filed by the plaintiff's side. The Trial Court was directed to consider the memo afresh in light of the Court's observations on the procedures contemplated under Order XXXVII of the CPC. The connected Civil Miscellaneous Petition (CMP No. 21175 of 2023) was closed. No order as to costs was made.
What This Means For Similar Cases
Mandatory Procedural Sequence Cannot Be Short-Circuited
The judgment reinforces that Order XXXVII CPC prescribes a mandatory, sequential procedure that courts must follow in summary suits. Practitioners must ensure that after an ex-parte order is set aside, the court does not simply accept a written statement. The defendant must first enter appearance, furnish notice of appearance to the plaintiff's counsel, and then face a summons for judgment in Form No. 4-A before applying for leave to defend. Any deviation converts the suit into a regular suit, depriving the plaintiff of the summary procedure's advantages.
Endorsement of No Objection Is Context-Specific
- An endorsement of "no objection" on an application to set aside an ex-parte order does not constitute a waiver of the special summary procedure under Order XXXVII
- The waiver must be clear, unequivocal, and refer specifically to the summary procedure
- Practitioners should explicitly state the scope of any endorsement to avoid inadvertent waiver
Service of Summons With Plaint Is a Single Composite Act
- The summons in Form No. 4 under Rule 2(2) must be served together with the plaint and annexures at the first instance
- There is no requirement for a second service of summons with the plaint
- Failure to serve the plaint with the summons means the suit cannot be treated as a summary suit for the purpose of automatic decree under Rule 2(3)
Non-Compliance Converts Suit to Regular Suit, Does Not Dismiss It
- If the plaintiff fails to follow Order XXXVII Rules 2 and 3, the suit does not get dismissed
- It proceeds as a regular suit: defendant placed ex-parte, ex-parte evidence recorded, judgment on merits
- This preserves the plaintiff's substantive claim while removing the procedural advantage of summary procedure
