Chamber Notes
A Substantial Defence to Raise: The Two Routes the Code Has to a Decree Without a Trial, and the Opposite Questions They Ask
24 October 2026 · 20 min read
A code of civil procedure that insisted on a trial in every suit would be unusable for the claims nobody actually disputes. A money claim can be resisted on the merits or resisted only by delay, and a procedure that gives both the same trial hands the second kind of defendant the one thing he was after. Any code of civil procedure therefore has to contain a route to judgment that does not pass through evidence.
The Code of Civil Procedure, 1908 contains two, and a century separates them. Order XXXVII is the older, and stood in the Code as originally enacted. Its heading now reads "Summary Procedure"; the words "On Negotiable Instruments" were omitted from it by section 84 of the Code of Civil Procedure (Amendment) Act, 1976 — Act 104 of 1976 — with effect from 1 February 1977, the same section that substituted new Rules 1, 2 and 3 in place of the old ones. Order XIII-A is headed "Summary Judgment", was inserted by section 16 and the Schedule of the Commercial Courts Act, 2015 — numbered Act 4 of 2016 — with effect from 23 October 2015, and applies only to commercial disputes of a Specified Value.
They are usually described as the same device at two scales: a fast track for claims that ought not to need a trial, available in ordinary suits under one Order and in commercial suits under the other. The two Orders do not read that way. They ask opposite questions, they put the burden on opposite parties, and one of them requires reasons while the other requires none. And the Code does not let a plaintiff have both: Rule 1(3) of Order XIII-A provides that "[n]otwithstanding anything to the contrary, an application for summary judgment under this Order shall not be made in a suit in respect of any Commercial Dispute that is originally filed as a summary suit under Order XXXVII."
So the choice between them is made once, by the plaintiff, in the plaint. It is worth knowing what each one is.
What Order XXXVII decides, and what it never asks
Rule 1(1) as substituted in 1976 fixes the courts. The Order applies to "(a) High Courts, City Civil Courts and Courts of Small Causes; and (b) other Courts", with a proviso under which the High Court may, by notification in the Official Gazette, restrict the operation of the Order in respect of the courts in clause (b) "only to such categories of suits as it deems proper", and may thereafter "further restrict, enlarge or vary, the categories of suits to be brought under the operation of this Order as it deems proper". The first three classes of court are in by force of the rule. For every other court the Order's reach is whatever the High Court has notified, and the notification is revisable.
Rule 1(2) fixes the claims: suits upon bills of exchange, hundies and promissory notes; and suits in which the plaintiff "seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest", arising on a written contract, or on an enactment where the sum sought is a fixed sum or in the nature of a debt other than a penalty, or on a guarantee where the claim against the principal is in respect of a debt or liquidated demand only.
Rule 2(1) requires the plaintiff to declare the choice on the face of the plaint. The plaint must contain a specific averment that the suit is filed under the Order; an averment "that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint"; and, immediately below the number of the suit in the title, the inscription "(Under Order XXXVII of the Code of Civil Procedure, 1908)."
Then Rule 2(3), which is the Order's engine: "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."
Three things in that sentence are worth separating. The right to defend is not lost; it is suspended, and conditioned on an act. The consequence of not doing the act is not a dismissal of the defence but a deeming of the plaint — the allegations "shall be deemed to be admitted", which is a finding the Court makes without hearing anything. And the decree that follows "may be executed forthwith", which removes the interval an ordinary decree-holder has to wait out.
Rule 3 then sets out what the defendant must do, and measures every step of it in ten days. Within ten days of service of the summons with a copy of the plaint and annexures he may enter an appearance, in person or by pleader, and must file an address for service. If he enters an appearance, the plaintiff serves a summons for judgment in Form No. 4A in Appendix B, "returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit". Within ten days from the service of that summons the defendant may apply for leave to defend, "by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend", and "leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just".
Note what the Court is being asked. The plaintiff's affidavit under Rule 3(4) states his belief that there is no defence. It is not a verification of the claim, and the Order nowhere requires the Court to be satisfied that the claim is good. The whole of the enquiry is directed at the defendant's material, and the first proviso to Rule 3(5) frames even that negatively: "Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious".
That is a double negative, and the direction it points in is leave. Refusal requires a positive satisfaction of a negative proposition — that the disclosed facts do not indicate a substantial defence — or a finding that the intended defence is frivolous or vexatious. A defence that is weak, or likely to fail, is none of those three things on the words of the proviso.
The second proviso attaches a price to being heard: "where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court". The admission that triggers it is the defendant's own, made in the material by which he seeks leave.
Rule 3(6) states the two outcomes. If the defendant has not applied for leave, or has applied and been refused, "the plaintiff shall be entitled to judgment forthwith". If he is permitted to defend as to the whole or part of the claim, the Court "may direct him to give such security and within such time as may be fixed", and on failure to give it, or to carry out such other directions as may have been given, "the plaintiff shall be entitled to judgment forthwith". Leave on terms is therefore not a final grant. It is a grant that can be undone by a default having nothing to do with the merits of the defence that was found substantial enough to let in.
Rule 3(7) is the Order's only extension of time: "The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit." It covers the two acts the Order makes time-bound, and nothing else.
What Order XIII-A decides, and whom it can decide against
Order XIII-A starts from the other end. Rule 1(1) states its object in terms of the Court's function: the Order "sets out the procedure by which Courts may decide a claim pertaining to any Commercial Dispute without recording oral evidence". Rule 1(2) defines "claim" to include part of a claim, "any particular question on which the claim (whether in whole or in part) depends", and a counterclaim.
Rule 2 fixes the window: an applicant may apply "at any time after summons has been served on the defendant", with a proviso that no application may be made "after the Court has framed the issues in respect of the suit". The device therefore lives in the interval between service and issues, and closes when the Court has identified what is to be tried.
Rule 3 states the grounds, and they are symmetrical. The Court may give a summary judgment "against a plaintiff or defendant" on a claim if it considers that "(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence."
Both limbs matter, and they do different work. Limb (a) is an assessment of the merits, made on the application, the reply and the documentary evidence the Order allows, and it can be made against either party — a defendant in an ordinary commercial suit may obtain judgment against the plaintiff, which Order XXXVII has no machinery for at all. Limb (b) is a reason not to decide: even where one side has no real prospect, the claim is not to be disposed of before oral evidence if there is some other compelling reason against it. Order XXXVII contains no equivalent. Nothing in it permits a Court satisfied that the disclosed facts do not indicate a substantial defence to decline to enter judgment.
Rule 4 prescribes the contents of the application and the reply. The application must state that it is made under the Order, "precisely disclose all material facts and identify the point of law, if any", include the documentary evidence relied on and identify the relevant content of it, and state "the reason why there are no real prospects of succeeding on the claim or defending the claim". The respondent must be given at least thirty days' notice of the date of hearing and of the claim proposed to be decided, and may file a reply within thirty days which must, among other things, "concisely state the issues that should be framed for trial" and "identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment". Rule 5 then fixes the documentary evidence timetable at fifteen days before the hearing for the respondent and five for the applicant in reply.
Rule 6 lists what the Court may do: judgment on the claim; a conditional order under Rule 7; dismissing the application; dismissing part of the claim with judgment on the part not dismissed; striking out the pleadings in whole or in part; or further directions to proceed for case management under Order XV-A. Sub-rule (2) then adds the obligation the other Order does not contain anywhere: "Where the Court makes any of the orders as set forth in sub-rule (1)(a) to (f), the Court shall record its reasons for making such order."
Rule 7 is the conditional order, and its trigger is a prediction: "Where it appears to the Court that it is possible that a claim or defence may succeed but it is improbable that it shall do so". The conditions available include requiring a party to deposit a sum of money in Court, to take a specified step, to give security or surety for restitution of costs, or to provide security for restitution of losses any party is likely to suffer during the pendency of the suit; and the Court is to "specify the consequences of the failure to comply with the conditional order, including passing a judgment against the party that have not complied".
That is the same instrument as the second proviso to Rule 3(5) and Rule 3(6)(b) of Order XXXVII, operated from a different premise. Under Order XXXVII the deposit is owed because the defendant has admitted part of the claim, and the security is a term the Court may impose without stating why. Under Order XIII-A the condition rests on the Court's own assessment that the case is possible but improbable, that assessment has to be reasoned under Rule 6(2), and the consequence of breach has to be specified in the order rather than supplied by the rule.
The formula Rule 4 kept, and the appeal it does not have
Order XXXVII Rule 7 provides that, save as provided by the Order, the procedure in suits under it "shall be the same as the procedure in suits instituted in the ordinary manner." The saving matters, because the Order does provide for setting aside its own decree, and the provision is Rule 4 — which section 84 of the 1976 Act did not substitute. It substituted Rules 1, 2 and 3, and left Rule 4 standing where it was.
Rule 4 reads: "After decree the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit."
Set that beside Order IX Rule 13, the ordinary provision for a defendant against whom a decree has been passed ex parte. There, the defendant who "satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing" is entitled to an order, and the rule says the Court "shall make an order setting aside the decree". Rule 4 of Order XXXVII names no ground, states no entitlement, and uses "may" twice. "Special circumstances" is not defined in the Order, in Order IX, or in section 2.
The contrast is sharper than the difference between two formulae, because the 1976 Act was working on both at once. Section 59 of that Act added the further proviso and the Explanation to Order IX Rule 13. Section 84, substituting Rule 3 of Order XXXVII, wrote sub-rule (7) into it, with its "sufficient cause" for excusing delay in entering an appearance or in applying for leave. The same Act therefore used the familiar standard in the immediate neighbourhood of Rule 4 and left Rule 4's undefined standard alone. A defendant who is late in appearing has "sufficient cause" available to him. A defendant who did not appear at all, and against whom the plaint has been deemed admitted under Rule 2(3), has only "special circumstances".
The appeal position follows the same pattern. Order XLIII Rule 1 lists the orders from which an appeal lies under section 104, and clause (d) gives an appeal from "an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte". No clause in that list refers to Order XXXVII at all. Section 104(1) states that an appeal shall lie from the orders it lists "and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders", and clause (i) of it carries in "any order made under rules from which an appeal is expressly allowed by rules". Order XXXVII expressly allows none.
On the text, therefore, a defendant refused relief under Order IX Rule 13 has an appeal and a defendant refused relief under Order XXXVII Rule 4 does not. Whether the Order XXXVII decree is itself open to attack by some other route is a question the text does not settle, and it is not one to be answered by assertion: section 96(2) provides that "[a]n appeal may lie from an original decree passed ex parte", and whether a decree passed under Rule 2(3) on deemed admissions answers that description is a matter on which the Code's words give no direction.
What the text does settle is the position of the order refusing leave to defend. That order is not a decree — section 2(14) defines an order as the formal expression of a decision which is not a decree — and it is not in the Order XLIII Rule 1 list. But Rule 1A(1) of Order XLIII, inserted by section 89 of the same 1976 Act, provides that where any order is made under the Code against a party and thereupon a judgment is pronounced against that party and a decree is drawn up, that party "may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced." A refusal of leave under Rule 3(5) is an order made against the defendant; Rule 3(6)(a) entitles the plaintiff to judgment forthwith upon it; and a decree is drawn up. The refusal is thus challengeable in the appeal against the decree, by force of a rule the same Act inserted in the same year as the leave-to-defend mechanism it answers.
The protection runs with the size of the claim
Order XIII-A is the more protective of the two procedures, and on every axis. It is open to both parties rather than only to the plaintiff. Its test looks at the merits of the claim rather than at the adequacy of one side's disclosure. It contains a limb permitting the Court to decline to decide even where the merits test is satisfied. It requires at least thirty days' notice of the hearing, where Order XXXVII's summons for judgment is returnable not less than ten days from service. It requires the Court to record reasons for every order it makes. And it leaves the defendant's right to defend intact until the Court has decided the application, where Rule 2(3) of Order XXXVII withholds that right until he has entered an appearance.
Order XIII-A is also the narrower. It applies only in a commercial dispute, as defined in section 2(1)(c) of the Commercial Courts Act, 2015, and only where the dispute is of a Specified Value. Section 2(1)(i) of that Act defines Specified Value as the value of the subject-matter determined in accordance with section 12, which is not to be less than "three lakh rupees" or such higher value as the Central Government may notify. That floor was substituted by section 4 of Act 28 of 2018, with effect from 3 May 2018, for one of "one crore rupees" — so for the first two and a half years of its life the Order was available only above a crore.
Order XXXVII has no floor and no ceiling. It applies, in the courts Rule 1(1) names, to a suit on a promissory note for any sum.
Put the two together and the Code's distribution is the opposite of what the stakes would suggest. The claim large enough and commercial enough to reach Order XIII-A is decided under a procedure that examines both sides, reasons its conclusion, and can be refused on grounds of its own unsuitability. The small debt on a written contract is decided under a procedure that examines only the defendant's affidavit, states no obligation to record why leave was refused, and converts a failure to appear within ten days into a deemed admission of the plaint and a decree executable forthwith.
Section 96 completes the gradient at the bottom end. Sub-section (4), inserted by section 33 of the 1976 Act, provides that no appeal shall lie, "except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed" ten thousand rupees — the figure substituted by section 9 of the Code of Civil Procedure (Amendment) Act, 1999, Act 46 of 1999, for "three thousand rupees", with effect from 1 July 2002. Rule 1(1)(a) of Order XXXVII extends the Order to Courts of Small Causes by force of the rule itself. Whether a particular claim is of a nature cognisable by those Courts is a question on the plaint and not one the Order answers; but where it is, and the sum is within the limit, the decree that the Order permits to be passed without hearing a defence is also a decree from which no appeal lies except on a question of law.
There is one more consequence of the election, and it runs against the plaintiff who makes it. Rule 1(3) of Order XIII-A bars "an application for summary judgment under this Order" in a suit originally filed as a summary suit under Order XXXVII. The bar is worded without reference to who is applying. A plaintiff with a commercial dispute above the Specified Value who files under Order XXXVII therefore takes the faster route for himself and, by the same act, closes to the defendant the route Order XIII-A would otherwise have opened to him. Order XXXVII has nothing to put in its place: no rule in it contemplates a judgment given against a plaintiff.
Three things that follow at the Bar
The first concerns the plaint. The consequences of Rule 2(3) attach to "the suit referred to in sub-rule (1)", and sub-rule (1) describes a plaint containing all three of the averment, the negative averment about relief, and the inscription in the title. Whether a given plaint is one is a question to be raised at the outset and on the document, because what turns on it is whether the defendant's right to defend was ever suspended. A plaint claiming, along with a liquidated sum, some relief outside Rule 1(2) is at odds with the averment Rule 2(1)(b) requires it to contain.
The second concerns the affidavit for leave. Rule 3(5) requires the defendant to disclose facts "as may be deemed sufficient to entitle him to defend", and the first proviso directs the refusal of leave to be tested against "the facts disclosed by the defendant". The disclosure is therefore the whole of the record on which leave is decided, and a defence that exists but is not disclosed in it is not before the Court. The same document carries a risk running the other way: an admission in it that part of the amount claimed is due engages the second proviso, and the deposit then becomes a condition of being heard at all.
The third concerns the dates, and the fact that only two of them are extendable. Ten days from service of the plaint and summons to enter appearance; ten days from service of the summons for judgment to apply for leave; and Rule 3(7) permits the Court, for sufficient cause, to excuse delay in those two acts and in nothing else. Once judgment has been entered, the Order offers Rule 4 and its undefined "special circumstances", with no entry in the Order XLIII Rule 1 list behind it. The practical consequence is that in a summary suit the two ten-day periods at the start carry more of the case than any stage after them.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.