The plaintiff has the right to choose between a summary suit and a regular suit, and there is no restriction on converting a summary suit into a regular suit. The defendant can be compensated with heavy costs for being dragged into a summary suit.

P.S. Rana, J.

Present application is filed for conversion of summary civil suit into regular civil suit. Brief facts of the case as pleaded are that plaintiff filed a summary suit for recovery of Rs.33,53,542/- being principle amount and interest and also sought relief of pendente lite future interest @ of 18% per annum till actual realization on the basis of cheque No. 989471 dated 22.7.2010 for a sum of Rs. 26,40,585/- which was dishonoured and was not encashed. Plaintiff also filed proceedings under Section 138 of the Negotiable Instrument Act which is pending adjudication before learned Judicial Magistrate Ist Class Shimla registered as case No.3973-3 of 2010. In civil suit No. 4027 of 2013 present application filed on behalf of plaintiff for conversion of summary suit into regular suit. Present application is converted as application under Order 6 Rule 17 CPC in the ends of justice because it is well concept of law that relief should not be declined to the parties simply on the ground that wrong section was mentioned in the pleadings. It is further pleaded that defendant has filed written statement without obtaining leave of the Court to defend the case as mentioned under Order 37 of the Code of Civil Procedure 1908. Prayer for acceptance of application sought.

2. Per contra reply filed on behalf of non-applicant/defendant. It is pleaded that defendant was served with summon. It is further pleaded that summon was not served upon defendant as prescribed in summary suit and now at this stage plaintiff is estopped to raise objection. It is further pleaded that present application be disposed of as deem fit by Court.

3. Court heard learned Advocate appearing on behalf of the applicant/plaintiff and learned Advocate appearing on behalf of non-applicant/defendant and also perused entire records carefully.

4. Following points arise for determination in the present application.

1. Whether it is expedient in the ends of justice to convert summary suit into regular suit as prayed ?

2. Final Order.

Finding upon Point No.1.

5. Submission of learned Advocate appearing on behalf of applicant/plaintiff that present summary suit be converted into regular suit as prayed is accepted for the reason hereinafter mentioned. It is well settled law that it is the option of the plaintiff to file summary suit or to file the suit in ordinary manner as prescribed under Code of Civil Procedure 1908. It is well settled law that there is no provision in the Code of Civil Procedure 1908 to the effect that plaintiff would not be allowed to convert summary suit into regular suit. It is well settled law that plaintiff can request the Court at later stage to convert summary suit into ordinary suit. It is well settled law that if the plaintiff has a choice of taking advantage of summary procedure under Order 37 then plaintiff has also option of not claiming benefit of summary procedure. It is well settled law that in summary suit right to defend the suit is restricted to the defendant. It is well settled law that in summary suit the defendant is under legal obligation to seek leave of the Court to defend summary suit. It is well settled law that in regular suit defendant is not under legal obligation to seek leave of the Court to defend the suit. See AIR 1978 Madhya Pradesh 199 titled Firm Gwallor Distributing Co. Lashkar and another Vs. Mrs. Kanta Gupta.

6. Submission of learned Advocate appearing on behalf of non-applicant/defendant that at this stage applicant/plaintiff should not be permitted to convert the nature of the summary suit into regular suit is rejected being devoid of any force for the reason hereinafter mentioned. Court is of the opinion that no prejudice will be caused to the defendant if the present summary suit converted into regular suit. Court is of the opinion that defendant could be compensated with heavy cost for dragging defendant in summary suit. In view of the above stated facts point No.1 is answered in affirmative.

Point No.2(Final Or