The court emphasized adherence to procedural rules in summary suits, highlighting that a defendant must seek leave to defend before filing a written statement under Order XXXVII.

JUDGMENT :

Devashis Baruah, J.

Heard Ms. A. Saikia, the learned counsel appearing on behalf of the petitioner and Mr. S. B. Prasad, the learned counsel appearing on behalf of the respondents.

2. The supervisory jurisdiction of this Court have been invoked to challenge the order dated 30.11.2023 passed in Summary Suit No.10/2023 as well as the subsequent order of rejection of the review petition dated 06.03.2024.

3. The learned counsel appearing on behalf of the petitioner submitted that taking into account that the suit was filed within the ambit of Order XXXVII of the Code of Civil Procedure, 1908 (for short ‘the Code’) without seeking a leave to defend, the question of permitting the defendant to file a written statement is beyond the provisions of Order XXXVII of the Code. In that regard, the learned counsel referred to the judgment of the Supreme Court in the case of Southern Sales and Services and Others Vs. Sauermilch Design and Handels GMBH reported in (2008) 14 SCC 457

4. Per contra, the learned counsel appearing on behalf of the respondent submitted that the respondent/defendant did not receive the copy of the summons and as such, sought for vacation of the order dated 04.11.2023 by filing an application under Order IX Rule 7 of the Code which was registered as Misc. (J) Case No.496/2023. The learned counsel submitted that this application was allowed vide an order dated 30.11.2023 and thereupon vide an order passed in the suit, the next date was fixed on 15.12.2023 and on the basis thereof, the written statement has been filed. The learned counsel for the respondent further submitted that taking into account that the Court had permitted filing of the written statement, it would amount to granting of a leave by the Court and as such, the written statement ought to be accepted.

5. This Court upon hearing the learned counsels for the parties, finds it relevant to take note of the provisions of Order XXXVII of the Code. A perusal of Order XXXVII Rule 1(2) of the Code stipulates which suits come within the ambit of the said order. It include suits in which the plaintiff seeks only to recover a debt or a liquidated demand on money payable by the defendant with or without interest arising out of a written contract.

6. This Court further finds it relevant to take note of the suit which was filed by the petitioner was based upon an agreement dated 25.01.2018 and the petitioner as plaintiff claiming an amount of Rs.1,37,000/- along with interest @12% per annum.

7. This Court further finds it relevant to take note of Rule 2 of Order XXXVII of the Code which stipulates the manner in which a summary suit is required to be instituted. It stipulates that the summons in respect to a summary suit has to be issued in Form No.4 in Appendix-B or in such other Form as may, from time to time be prescribed. Sub-Rule (3) of Rule 2 of Order XXXVII of the Code further stipulates that the defendant shall not defend the suit referred to in Sub-Rule (1) unless he enters 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 the Rules made in that behalf and such decree may be executed forthwith.

8. Rule 3 of Order XXXVII of the Code further stipulates that the defendant upon being served a copy of the plaint and the annexures thereto, a