The stage of determination of the matter in issue will arise in a
summary suit only after the defendant obtains leave. The trial would
really begin only after leave is granted to the defendant. This clearly
appears to be the scheme of summary procedure as provided by Order 37 of
the Code.
Considering the objects of both the provisions, i.e., Section 10 and
Order 37 wider interpretation of the word ’trial’ is not called for. The
word ’trial’ in section 10, in the context of a summary suit, cannot be
interpreted to mean the entire proceedings starting with institution of
the suit by lodging a plaint. In a summary suit the ’trial’ really
begins after the Court or the Judge grants leave to the defendant to
contest the suit.
Therefore, the Court or the Judge dealing with the summary suit can
proceed up to the stage of hearing the summons for judgment and passing
the judgment in favour of the plaintiff if
(a) the defendant has not applied for leave to defend or if such application has been made and refused or if
(b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted.
Equivalent Citation: 1998IVAD(SC)560, AIR1998SC1952, 1998(3)ALLMR(SC)167, 1998(3)ALT18(SC),[1998]93CompCas120(SC), [1998(79)FLR615], JT1998(3)SC733, 1998(2)MPLJ101, (1998)119PLR568,
RLW1998(2)SC334, 1998(3)SCALE441b, (1998)5SCC69, [1998]3SCR187
IN THE SUPREME COURT OF INDIA
C.A. Nos. 2580-81 of 1998 (Arising out of SLP (c) Nos. 5410-5411 of 1997
Decided On: 05.05.1998
Appellants: Indian Bank
Vs.
Respondent: Maharashtra State Co-operative Marketing Federation Ltd.
Hon'ble Judges: S.C. Agrawal and G.T. Nanavati, JJ.
2. The question which arises for consideration in these appeals is whether the bar to proceed
with the trial of subsequently instituted suit, contained in Section 10 of the CPC,
1908(hereinafter referred to as the 'Code') is applicable to summary suit filed under Order 37 of
the Code.
3. The respondent Federation applied to the appellant Bank on 5.6.1989 to open an Irrevocable
Letter of Credit for a sum of Rs. 3,78,90,000 in favour of M/s. Shankar Rice Mills. Pursuant to
that request the Bank opened an Irrevocable Letter of Credit on 6.6.1989. The agreed
arrangement was that the documents drawn under the said Letter of Credit when tendered to
the appellant Bank were to be forwarded to the Federation for their acceptance and thereafter
the Bank had to make payments to M/s. Shankar Rice Mills on behalf of the Federation. On
6.2.1992 the Bank filed Summary Suit No. 500 of 1992 in the Bombay High Court under Order
37 of the Code against the Federation for obtaining a decree for Rs. 4,96,59,160 alleging that"
the said amount has become recoverable under the said Letter of Credit. The Bank took out
summons for judgment (No. 278 of 1992). The Federation appeared before the Court and took
out Notice of Motion seeking stay of the summary suit on the ground that it has already
instituted a suit being Suit No. 400 of 1992 against the Bank for recovery of Rs. 3,70,52,217.88
prior to the filing of the summary suit.
4. A learned Single Judge of the Bombay High Court, who heard the summons for judgment and
the Notice of Motion, held that the concept of trial as contained in Section 10 of the Code is
applicable only to a regular/ ordinary suit and not to a summary suit filed under Order 37 of the
Code and, therefore, further proceedings under Summary Suit No. 500 of 1992 were not
required to be stayed. The learned Judge was also of the view that there was no merit in the
defence raised by the Federation. He, therefore, granted leave to the Federation to defend the
suit conditionally upon the Federation depositing Rs. 4 crores in the Court. The summons for
judgment was disposed of accordingly and the Notice of Motion was dismissed.
5. Aggrieved by the order of the learned Single Judge in summons for judgment the Federation
filed Appeal No. 953 of 1994 before the Division Bench of the High Court; and, against the order
passed on Notice of Motion it preferred Appeal No. 954 of 1994. The Division Bench was of the
view that the word 'trial' in Section 10 has not been used in a narrow sense and would mean
entire proceedings after the defendant enters his appearance, held that Section 10 of the Code
applies to a summary suit also. It also held that the summary suit filed by the Bank being a
subsequently instituted suit filed by the Bank being a subsequently instituted suit was required
to be stayed. It allowed both the appeals, set aside the orders passed by the learned Single
Judge and stayed the summary suit till the disposal of the prior suit filed by the Federation.
6. The submission of the learned counsel for the appellant was that the view taken by the
learned Single Judge was correct and Division Bench has committed an error of law in taking a
contrary view. It was his contention that if Section 10 is made applicable to summary suit also
the very object of making a separate provision for summary suits will be frustrated. The learned
counsel for the respondent, on the other hand, supported the view taken by the Division Bench.
7. Section 10 of the Code prohibits the court from proceeding with the trial of any suit in which
the matter in issue is also directly and substantially in issue in a previously instituted suit
provided other conditions mentioned in the section are also satisfied. The word 'trial' is no doubt
of a very wide import as pointed out by the High Court. In legal parlance it means a judicial
examination and determination of the issue in civil or criminal court by a competent Tribunal.
According to Webster Comprehensive Dictionary, International Edition, it means the
examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an
issue in order to determine that issue. According to Stroud's Judicial Dictionary (5th Edition), a
'trial' is the conclusion, by a competent tribunal, of question in issue in legal proceedings,
whether civil or criminal. Thus in its widest sense it would include all the proceedings right from
the stage of institution of a plaint in a civil case to the stage of final determination by a judgment
and decree of the Court. Whether the widest meaning should be given to the word 'trial' or that it
should be construed narrowly must necessarily depend upon the nature and object of the
provision and the context in which it used.
8. Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in
mind the object and nature of that provision and the prohibition to 'proceed with the trial of any
suit in which the matter in issue is also directly and substantially in issue in a previously
instituted suit'. The object of the prohibition contained in Section 10 is to prevent the courts of
concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid
inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure
and does not affect the jurisdiction of the court to entertain and deal with the later suit nor does
it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been
construed by the courts as not a bar to the passing of interlocutory orders such as an order for
consolidation of the later suit with the earlier suit, or appointment of a Receiver or an injunction
or attachment before judgment. The course of action which the court has to follow according to
Section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal
with the subsequent suit any more or for any other purpose. In view of the object and nature of
the provision and the fairly settled legal position with respect to passing of interlocutory orders it
has to be stated that the word 'trial' in Section 10 is not used in its widest sense.
9. The provision contained in Section 10 is a general provision applicable to all categories of
cases. The provisions contained in Order 37 apply to certain classes of suits. One provides a
bar against proceeding with the trial of a suit, the other provides for granting of quick relief. Both
these provisions have to be interpreted harmoniously so that the objects of both are not
frustrated. This being the correct approach and as the question that has arisen for consideration
in this appeal is whether the bar to proceed with the trial of subsequently instituted suit
contained in Section 10 of the Code is applicable to a summary suit filed under Order 37 of the
Code, the words 'trial of any suit' will have to be construed in the context of the provisions of
Order 37 of the Code. Rule 2 of Order 37 enables the plaintiff to institute a summary suit in
certain cases. On such a suit being filed the defendant is required to be served with a copy of
the plaint and summons in the prescribed form. Within 10 days of service the defendant has to
enter an appearance. Within the prescribed time the defendant has to apply for leave to defend
the suit 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. If the defendant has not applied for leave to defend, or if
such an application has been made and refused, the plaintiff becomes entitled to judgment
forthwith. If the conditions on which leave was granted are not complied with by the defendant
then also the plaintiff becomes entitled to judgment forthwith. Sub-rule (7) of Order 37 provides
that save as provided by that order the procedure in summary suits shall be the same as the
procedure in suits instituted in the ordinary manner. Thus in classes of suits where adopting
summary procedure for deciding them is permissible the defendant has to file an appearance
within 10 days of the service of summons and apply for leave to defend the suit. If the defendant
does not enter his appearance as required or fails to obtain leave the allegations in the plaint
are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff.
The stage of determination of the matter in issue will arise in a summary suit only after the
defendant obtains leave. The trial would really begin only after leave is granted to the
defendant. This clearly appears to be the scheme of summary procedure as provided by Order
37 of the Code.
10. Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider
interpretation of the word 'trial' is not called for. We are of the opinion that the word 'trial' in
Section 10, in the context of a summary suit, cannot be interpreted to mean the entire
proceedings starting with institution of the suit by lodging a plaint. In a summary suit the 'trial'
really begins after the Court or the Judge grants leave to the defendant to contest the suit.
Therefore, the Court or the Judge dealing with the summary suit can proceed up to the stage of
hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the
defendant has not applied for leave to defend or if such application has been made and refused
or if (b) the defendant who is permitted to defend fails to comply with the conditions on which
leave to defend is granted.
11. In our opinion, the Division Bench of the Bombay High Court was in error in taking a
different view. It had relied upon the decision of this Court in Harish Chandra v. Triloki Singh,
MANU/SC/0057/1956 : [1957]1SCR370 . That was a case arising under the Representation of
People's Act and, therefore, it was not proper to apply the interpretation of word 'trial' in that
case while interpreting Section 10 in the context of Order 37 of the Code.
12. We, therefore, allow these appeals, set aside the impugned judgment of the Division Bench
of the High Court and restore the order passed by the learned Single Judge. In view of the facts
and circumstances of the case, we make no order as to costs.
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