So, let us see what is suit. A suit is a civil proceeding that has been instituted when on presenting a plaint as per Section 26(1)Civil Procedure Code. So first, a plaint has to be prepared then the appropriate place for suing has to be chosen and thereafter, the plaint has to be presented. Section 26(2) of the Code of Civil Procedure says that the facts in each plaint have to be proved by affidavit. Now, what is a summary suit as well as an ordinary suit?
Summary suit means a certain legal process is followed so as to enforce right effectively wherein the court delivers judgment and defence is not heard. So, this is process is done in specific cases in a restricted manner and when the defence does not have proper or reasonable ground. In the Code of Civil Procedure, Order XXXVII speaks about the summary procedure that has to be followed for recovery of money through the suit in court with proper jurisdiction and this is a civil remedy.
As per Order XXXVII, Code of Civil Procedure, a summary suit is filed. In this type of suit, a defendant cannot defend and in case, the defendant wants to defend then the defendant has to get leave from the court within the specified period but if the court rejects the leave then decree would be in favour of the plaintiff. So, the defendant in a summary suit has to establish the fact in a period of ten days. Res sub judice and Res judicata is not applicable for summary suits.
Ordinary suits are filed under Section 26 Order VI Rule 1 of the Code of Civil Procedure where suits which are of civil nature are filed and not restricted to any matter in specific except that it has to be of civil nature. In this suit, a defendant can defend without applying for leave from the court and the defendant gets a 30-day period for filing written statement. In the ordinary suit, there is the applicability of Res sub judice and Res judicata.
In Neebha Kapoor versus Jayantilal Khandwala & Ors.- wherein Justice S.B. Sinha and Justice V. S. Sirpurkar of Apex Court noted :
“A summary suit, as provided for in Order 37, Rule 1 of the Code is maintainable if it is filed on bills of exchange, hundis and promissory notes. A cheque is a bill of exchange within the meaning of Section 6 of the Act. Order 37, Rule 2 of the Code provides as to what should a 21Plaint 22 contain. Rule 3 thereof provides for the procedure to be adopted in such a suit. SubRule (1) of Rule 3 provides for entrance of appearance by the defendant within ten days from the date of service of summons. Sub-rule (4) of Rule 3 provides for service of a summons for judgment in Form No. 4A upon the defendant. Defendant within ten days from the service of such summons by affidavit or otherwise may disclose facts which would be deemed sufficient to entitle him to defend, apply for leave to defend such suit. Leave to defend, however, may be granted unconditionally upon such terms as may appear to the court to be just. Sub-Rule (6) of Rule 3 of Order 37 of the Code provides for hearing of such summons for judgment stating: