High Court · 2025

1. Heard learned counsel for the parties and perused the material on record.

2. The short controversy involved in the instant writ petition, which arises out of order dated 20.10.2022 passed by Civil Judge (Senior Division) Ballia rejecting application 17C2 moved by the plaintiff-petitioner, as to whether the suit instituted by plaintiff in the year 2019 be treated as a regular suit, or suit under Order XXXVII C.P.C. for summary disposal post amendment of the year 2020 and the suit having been renumbered as Original Suit No.10 of 2021.

3. The facts, in brief, are that the plaintiff had instituted a regular suit for recovery of money along with interest against the defendant-respondent. The summons were issued on 25.01.2019 and the suit was registered on the same day. An amendment application was moved by the plaintiff being paper No.10A, which was allowed on

17.11.2020 and the suit was converted as a summary suit under Order XXXVII C.P.C.

4. An application 17C2 was moved by the plaintiff for proceeding in the matter on the basis of Order XXXVII C.P.C., which has been rejected by the order impugned dated 20.10.2022, hence the present writ petition.

5. Order XXXVII Rule 2 C.P.C. prescribes for institution of summary suit, which is as under: "2. Institution of summary suits -(1) A suit, to which this Order applies, may if the plaintiff proceed desires to desires hereunder, be instituted by presenting a plaint which shall contain,- (a) a specific averment to the effect that the suit is filed under this Order; (b) that no relief, which does not fall within the ambit of this rule; has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the title of the suit, namely :- "(Under Order XXXVII of the Code of Civil Procedure, 1908)." (2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed. (3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith."

6. Sub-rule (1)(a) of Rule 2 clearly provides that a specific averment has to be made in the plaint that the suit is filed under Order XXXVII C.P.C. Sub-rule (1)(c) clearly mentions that Order XXXVII C.P.C. has to be inscribed immediately below the number of the suit in the title of the suit.

7. It is an admitted fact that the instant suit was filed on the regular side and it was registered on 25.01.2019 and summons were issued to the defendant. It was in the year 2020 that an amendment application was moved for treating the suit filed on the regular side as a summary suit.

8. The Court below had proceeded to reject the application 17C on the ground that initially the suit was instituted on the regular side and after the summons were issued to the defendant and number of dates were fixed that the suit was converted into a summary suit.

9. Sub-rule (2) of Rule 2 of Order XXXVII C.P.C. provides that summons of the suit shall be in Form No.4 in Appendix B. Sub-rule (3) of Rule 2 provides that the defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified. Further, Rule 3 of Order XXXVII C.P.C. provides that the plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader.

10. From the reading of Rules 2 and 3 of Order XXXVII C.P.C., it is clear that in a summary suit instituted, not only the requirement is there for disclosure of the said fact in the plaint but also there must be inscription immediately below the number of the suit in the title mentioning about Order XXXVII C.P.C. To treat the suit as a summary suit, disclosure has to be there by the plaintiff.

11. The instant case was instituted on the regular side by the plaintiff and it was after the summons were issued that it was converted into a suit under Order XXXVII C.P.C. The procedure envisaged for summary suit was not followed by the plaintiff and the Court below has rightly rejected the application.

12. However, counsel for the defendant-respondent submits that the entire payment has been made to the plaintiff-petitioner and a compromise has been filed before the Court concerned, which is pending consideration.

13. Considering the facts and circumstances of the case, I find that no interference is required in the order impugned. The writ petition stands dismissed.

14. However, in case any compromise application has been filed in the pending suit, the Court below shall proceed and decide the same strictly in accordance with law, preferably within a period of three months from the date of production of a certified copy of this order. Order Date :- 18.4.2025 Kushal KUSHAL AGRAWAL High Court of Judicature at Allahabad

1. Heard learned counsel for the parties and perused the material on record.

2. The short controversy involved in the instant writ petition, which arises out of order dated 20.10.2022 passed by Civil Judge (Senior Division) Ballia rejecting application 17C2 moved by the plaintiff-petitioner, as to whether the suit instituted by plaintiff in the year 2019 be treated as a regular suit, or suit under Order XXXVII C.P.C. for summary disposal post amendment of the year 2020 and the suit having been renumbered as Original Suit No.10 of 2021.

3. The facts, in brief, are that the plaintiff had instituted a regular suit for recovery of money along with interest against the defendant-respondent. The summons were issued on 25.01.2019 and the suit was registered on the same day. An amendment application was moved by the plaintiff being paper No.10A, which was allowed on

17.11.2020 and the suit was converted as a summary suit under Order XXXVII C.P.C.

4. An application 17C2 was moved by the plaintiff for proceeding in the matter on the basis of Order XXXVII C.P.C., which has been rejected by the order impugned dated 20.10.2022, hence the present writ petition.

5. Order XXXVII Rule 2 C.P.C. prescribes for institution of summary suit, which is as under: "2. Institution of summary suits -(1) A suit, to which this Order applies, may if the plaintiff proceed desires to desires hereunder, be instituted by presenting a plaint which shall contain,- (a) a specific averment to the effect that the suit is filed under this Order; (b) that no relief, which does not fall within the ambit of this rule; has been claimed in the plaint; and (c) the following inscription, immediately below the number of the suit in the title of the suit, namely :- "(Under Order XXXVII of the Code of Civil Procedure, 1908)." (2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed. (3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith."

6. Sub-rule (1)(a) of Rule 2 clearly provides that a specific averment has to be made in the plaint that the suit is filed under Order XXXVII C.P.C. Sub-rule (1)(c) clearly mentions that Order XXXVII C.P.C. has to be inscribed immediately below the number of the suit in the title of the suit.

7. It is an admitted fact that the instant suit was filed on the regular side and it was registered on 25.01.2019 and summons were issued to the defendant. It was in the year 2020 that an amendment application was moved for treating the suit filed on the regular side as a summary suit.

8. The Court below had proceeded to reject the application 17C on the ground that initially the suit was instituted on the regular side and after the summons were issued to the defendant and number of dates were fixed that the suit was converted into a summary suit.

9. Sub-rule (2) of Rule 2 of Order XXXVII C.P.C. provides that summons of the suit shall be in Form No.4 in Appendix B. Sub-rule (3) of Rule 2 provides that the defendant shall not defend the suit referred to in sub-rule (1) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified. Further, Rule 3 of Order XXXVII C.P.C. provides that the plaintiff shall, together with the summons under Rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader.

10. From the reading of Rules 2 and 3 of Order XXXVII C.P.C., it is clear that in a summary suit instituted, not only the requirement is there for disclosure of the said fact in the plaint but also there must be inscription immediately below the number of the suit in the title mentioning about Order XXXVII C.P.C. To treat the suit as a summary suit, disclosure has to be there by the plaintiff.

11. The instant case was instituted on the regular side by the plaintiff and it was after the summons were issued that it was converted into a suit under Order XXXVII C.P.C. The procedure envisaged for summary suit was not followed by the plaintiff and the Court below has rightly rejected the application.

12. However, counsel for the defendant-respondent submits that the entire payment has been made to the plaintiff-petitioner and a compromise has been filed before the Court concerned, which is pending consideration.

13. Considering the facts and circumstances of the case, I find that no interference is required in the order impugned. The writ petition stands dismissed.

14. However, in case any compromise application has been filed in the pending suit, the Court below shall proceed and decide the same strictly in accordance with law, preferably within a period of three months from the date of production of a certified copy of this order. Order Date :- 18.4.2025 Kushal KUSHAL AGRAWAL High Court of Judicature at Allahabad