If Suit Under Order 37 CPC Is Not Tried Following Summary Procedure, It Is Deemed To Proceed As An Ordinary Suit: J&K High Court

Specifying the recourse available in such cases Justice Sanjay Dhar observed,

“The only course open to the petitioner in these circumstances was to either file an appeal against the exparte judgment and decree or to file an application under Order 9 Rule 13 CPC before the trial court”

The petitioner, Mohd. Maqbool Mir, had approached the High Court seeking to set aside the order passed by the Sub Judge, Bandipora. The impugned order had dismissed his application for setting aside the execution proceedings initiated against him pursuant to an ex parte decree.

The original suit, filed by respondent Ghulam Mohammad Pahloo, was titled under Order 37 CPC for recovery of Rs. 50,000 along with interest and Rs. 10,000 in litigation expenses. However, the petitioner/defendant did not appear before the trial court, leading to the ex parte decree. He later sought to have the execution stayed and the decree set aside by invoking Order 37 Rule 4 CPC, but the trial court dismissed the applications, prompting the present petition.

Observations by the High Court

Justice Sanjay Dhar noted a fundamental procedural lapse that while the suit was styled under Order 37 CPC, the summary procedure mandated by that Order was not followed by the trial court. Specifically, the summons was not issued in the prescribed proforma under Form 4 of Appendix B as required under Rule 2 of Order 37.

Further, the trial court did not proceed as per sub-rule (3) of Rule 2, which allows the court to deem the allegations in the plaint admitted and pass a decree without evidence if the defendant fails to appear, the court noted.

Instead, the court adopted the regular trial procedure by proceeding ex parte, allowing the plaintiff to lead evidence, examine himself and other witnesses, and pass a decree based on that evidence.

“The aforesaid sequence of events clearly goes on to show that the learned trial court has tried the suit of the plaintiff by adopting ordinary procedure instead of adopting the special procedure prescribed under Order 37 of the CPC,” the Court observed.

In such a scenario, the High Court held, the defendant could not invoke Rule 4 of Order 37 CPC. Since the case had lost its summary character due to the trial court's deviation from the prescribed procedure, the appropriate remedies for the petitioner would have been to either file an appeal or move an application under Order 9 Rule 13 CPC for setting aside the ex parte decree.

The Court further clarified that the ground raised by the petitioner regarding improper service of summons in the prescribed format was rendered irrelevant, given that the suit was not conducted in accordance with Order 37. The High Court also acknowledged that although the trial court may have assigned unsustainable reasons for dismissing the petitioner's application, the conclusion it reached was legally correct.

Finding the petition devoid of merit, the High Court dismissed it, making it clear that the petitioner is at liberty to pursue the proper remedy against the ex parte decree.

Mr. I. Sofi, Advocate appeared for the petitioner Mr. Vaseem Aslam represented the Respondents.

Case Title: Mohd Maqbool Mir Vs Ghulam Ahmad Pahloo

Citation: 2025 LiveLaw (JKL) 199

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