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2026 Supreme(Guj) 706
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, L.S. PIRZADA, JJ.
Hiteshbhai Bhikhabhai (Patel) Gajera & Ors. - Appellants
Versus
Ketanbhai Bhikhubhai Patel (Diyora) - Defendant
R/First Appeal No. 4221 of 2009
Decided On : 07-05-2026
For the Appellant : Mr. Jitendra Malkan for Ms. Khushboo Aakash Sheth.
For the Defendant : Mr. Pritviraj Jadeja for Mr. B.P. Gupta.
A summary suit is not maintainable if the plaint includes reliefs beyond its statutory scope without prior formal abandonment of those claims. In such instances, the court must treat the matter as a regular suit, ensuring the defendant’s right to file a written statement and contest the proceedings on merits.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXXVII Rules 1(2) and 2(1)(b) - Summary Suit - Scope of - Where a suit includes claims outside the purview of the summary procedure and no formal abandonment of such claims is made by the plaintiff, the trial court is mandated to direct the defendant to file a written statement and try the suit as a regular civil suit - Proceeding ex parte in a suit that is not maintainable under the summary procedure due to extraneous claims constitutes an illegality - Procedural fairness requires that defendants be granted an opportunity to contest the suit through the filing of a written statement in instances where the summary designation is improper. (Paras 10.7, 10.16, 12)
(B) Appeal - Appellate Court’s Power - Where a decree is passed in a summary suit that is inherently not maintainable due to the inclusion of claims falling outside the statutory scope of such suits, the appellate court should set aside the summary decree and remand the matter for fresh adjudication on merits as a regular suit to ensure a fair trial. (Paras 12, 13, 16)
Facts of the case:
An action was initiated as a summary suit, seeking recovery of a debt based on a promissory note, but simultaneously included prayers for permanent injunction and protection of legal documents. These additional prayers fell outside the legal scope permissible under the summary procedure. The trial court proceeded to issue a decree on an ex parte basis after the defendants failed to enter appearances within the summary timeline. The defendants challenged the legality of the decree, arguing the suit was not maintainable as a summary action.
Findings of Court:
The court determined that the suit contained prayers that were distinct from those permitted under the summary procedure. Since the plaintiff did not expressly abandon the non-compliant claims, the suit could not proceed as a summary matter. The court found that the trial court failed to follow the necessary procedural compliance required for an improper summary filing.
Issues: Whether a suit incorporating claims outside the scope of the summary procedure remains maintainable as such; whether an ex parte summary decree based on a plaint containing non-summary claims should be set aside and the case tried as a regular suit.
Ratio Decidendi: Where a plaint in a summary suit contains relief claims not permitted under the statute, the court must, in the absence of a formal abandonment of such claims, treat the matter as a regular suit. This requires the issuance of fresh summons and granting the defendant a full opportunity to file a written statement and produce evidence in a regular trial, rather than proceeding under the truncated summary process.
Result: Appeals allowed; trial court judgment and decree quashed and set aside; matter remanded for trial as a regular suit.
| Table of Content |
|---|
| 1. initiation of summary suit and ex-parte decree. (Para 1 , 2 , 4) |
| 2. requirement of strict adherence to order xxxvii scope. (Para 7 , 8 , 9 , 10) |
| 3. mandatory conversion to regular suit if summary suit claims are invalid. (Para 11 , 12) |
| 4. remand for trial as a regular suit. (Para 13 , 14 , 15 , 16 , 17 , 18) |
JUDGMENT :
L.S. PIRZADA, J.
1. The present appeal has been preferred by the appellant - original defendant under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree dated 11.09.2008 passed by the learned 10th Additional Civil Judge, Senior Division,
2. For the sake of brevity and convenience, the parties herein are referred to in accordance with their original status as in the suit.
3.1 The brief facts leading to the present appeal are that the original plaintiff filed Summary Civil Suit No. 15 of 2008 under Order XXXVII Rule 2 of the Code of Civil Procedure, 1908 for recovery of Rs.53,00,000/- along with interest, and also sought a permanent injunction against the original defendants.
3.2 The case of the plaintiff before the learned trial Court is that Defendant Nos. 1 and 2 were well known to the plaintiff and shared a friendly relationship with him. Defendant Nos. 1 and 2 are real brothers, and Defendant No. 3 is their father. Owing to financial crunch, the defendants approached the plaintiff for financial assistance and from time to time beginning on 17.10.2007, borrowed a total sum of Rs.53,00,000/-.
3.3 In acknowledgment of the said debt, Defendant Nos. 1 and 2 executed a promissory note in favour of the plaintiff. As security for repayment, they also deposited the original title documents of their immovable property situated at Katargam, Sub-District Choriyasi, District Surat, bearing Revenue Survey Nos. 458/1 and 549/1/A, Plot No. 50 of Sant Jalaram Society, along with the construction thereon, City Survey Ward No. 1, Sheet No. 152, Property No. 20. The said property is exclusively owned by Defendant Nos.1 and 2.
3.4 Out of the total amount, a sum of Rs.28,85,000/- was paid by the plaintiff through cheques from his own bank accounts as well as from the bank account of his father, and the remaining amount was paid in cash.
3.5 Further, as per the case of the plaintiff, he demanded repayment of the said amount from Defendant Nos. 1 and 2; however, they failed to respond or make any payment. Subsequently, the plaintiff came to know that the defendants had also borrowed money from other persons and were attempting to sell their aforesaid property. Therefore, the plaintiff issued a public notice through his advocate in the “Gujarat Mitra” daily newspaper on 19.02.2008, stating that he had advanced a substantial amount to the defendants and cautioning the public against entering into any transaction with respect to the aforesaid property of Defendant Nos. 1 and 2.
3.6 Thereafter, the plaintiff issued a legal notice through his advocate on 20.02.2008 via Registered A. D. The said notice was duly served upon the defendants. In response, the defendants issued six cheques of different amounts and dates aggregating to Rs.53,00,000/-. The said cheques were signed by Defendant No. 1 in his capacity as proprietor of Khodiar Textiles.
3.7 The plaintiff deposited the said cheques in his bank account. Out of the six cheques, three cheques were presented on 26.02.2008, which were returned unpaid with the endorsement “Refer to drawer – d
