1. By view of this petition, challenge is made to the orders dated 29.02.2024, 29.08.2025 and 03.09.2025 passed by the trial Court. By the order dated 29.02.2024, the trial Court has rejected application under Order XXXVII Rules 2 and 3 CPC filed by the defendant and taken the written statement of the defendant on record. By the order dated 29.08.2025, the trial Court has framed issues in the case and by order dated 03.09.2025, the trial Court has posted the case for plaintiff's evidence.

2. The present petition has been filed by the petitioner/plaintiff who is aggrieved by the aforesaid order to the extent that the trial Court is proceeding in the matter like a regular suit and that the trial Court is not proceeding ahead in the matter by adopting the procedure of summary suit under Order XXXVII CPC. It is the contention of the petitioner that since the suit has been filed as a summary suit, therefore, the trial Court ought not to have taken the written statement on record and framed the issues, or posted the case for plaintiff's evidence because no leave to defend has been sought by the defendant and in such circumstances, the suit cannot be tried like a regular suit. By placing reliance on the plaint, it is contended that the suit is for recovery of Rs.4,27,60,000/- and it is clearly captioned as a suit under Order XXXVII CPC as it is based upon an agreement and promissory note and is covered under Order XXXVII CPC to be dealt with like a summary suit and the petitioner had filed summary suit by exercising statutory right granted to the petitioner to file a summary suit. However, the trial Court is erroneously proceeding ahead in the suit like a regular suit.

3. The learned counsel for the petitioner has further vehemently argued that the trial Court even did not issue summons in Form-IV in Appendix-B which is required to be issued in case of summary suit and even the notices issued in the case were faulty. It is further argued that the trial Court ought not to have proceeded in the suit in question like an ordinary suit, once no leave to defend has been sought by the defendant.

4. The learned counsel for the petitioner has also heavily relied on judgment of the Hon'ble Supreme Court in the case of Executive Trading Company Private Limited vs. Grow Well Mercantile Private Limited, reported in 2025 LiveLaw (SC) 969 to contend that the procedure being followed by the trial Court is highly faulty and defective.

5. Heard.

6. In the present case, it is argued by the learned counsel for the plaintiff/petitioner that the initial notices were issued by the Court on regular form and were not issued in the form contained in Appendix-B and, therefore, there was non-compliance of Order XXXVII Rule 2(2) CPC. However, no copy of such summons has been placed on record that in what manner the summons had been issued to the defendant. Be that as it may be, but the defendant has entered appearance in the suit as far back as on 14.12.2023 and the petitioner did not choose to challenge the order of the Court in issuing summons on regular form because the order of issuing the summons initially was passed in June, 2023 and the defendant appeared in December, 2023. Therefore, the stage of taking objection of faulty form of summons is over.

7. Even the faulty summons alleged to be issued by the Court is not relevant for the purpose of present petition because the petitioner contends that written statement could not be taken on record, issues could not be framed and the case could not be fixed for evidence because that is not the summary procedure contemplated and the suit is being tried as a regular suit.

8. The petitioner can avoid regular procedure in summary suit only if the petitioner had complied with provisions of Order XXXVII Rule 3(4) CPC. As per the aforesaid provision after entering appearance of the defendant, the plaintiff has to serve summons for judgement in Form-4A and thereafter the provisions of Order XXXVII Rule 3(5), (6) and (7) would apply. Leave is sought by the defendant under Order XXXVII Rule 3(5) CPC. In case, the summary procedure as per Order XXXVII Rule 3(4) is not adopted by the plaintiff, then as per Order XXXVII Rule 7, the procedure for ordinary suit would apply even to the summary suit. For ready reference, Order XXXVII Rule 3 is as under:-

          "3. Procedure for the appearance of defendant-

          (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him.

          (2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

          (3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.

          (4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, 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.

          (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such 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:

          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:

          Provided further that, 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.

           (6) At the hearing of such summons for judgment,-

           (a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

          (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

          (7) 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.]"

9. This Court repeatedly asked learned counsel for the petitioner that whether the petitioner has given a notice for judgement in Form-4A or has prayed to the trial Court to issue such notice/summons for judgement in Form-4A. However, learned counsel for the petitioner/plaintiff replied that such summons have not been issued to the defendant because it is not the stage of judgement. The aforesaid assertion of counsel for the petitioner is utterly misconceived because summary procedure as contemplated in Order XXXVII Rule 3 would apply only from the stage of issuing summons for judgement under Order XXXVII Rule 3 (4) CPC. This issue has been considered in detail in the case of Executive Trading Company (supra) by the Hon'ble Supreme Court wherein the Hon'ble Supreme Court has set out the sequence of steps under Order XXXVII Rule 3 CPC in the following manner:-

          "7. To appreciate the procedural objection pointed out by the Plaintiff, the sequence of steps under Order XXXVII Rule 3 sub-Rules (1) to (7) of the CPC is set out as follows:

          7.1 On filing the Summary Suit, the plaintiff must serve the defendant with the plaint and annexures, together with the summons.

          7.2 The defendant has ten days to enter an appearance, in person or through a pleader, and provide a service address. On the same day, the defendant must notify the plaintiff or its pleader of its appearance.

          7.3 The plaintiff then serves a summons for judgment on the defendant in the court-prescribed format, supported by an affidavit verifying the cause of action, the amount claimed, and the belief that the defendant has no defence.

          7.4 Thereafter, the defendant has ten days to apply for leave to defend by filing an affidavit disclosing a genuine and substantial defence. The court may grant leave to defend unconditionally or on such terms that may appear to be just.

          7.5 The court shall not refuse leave unless the defence is frivolous or vexatious. Further, if the defendant admits to owing part of the amount, it must deposit that amount in courtto get the leave to defend.

          7.6 If the defendant does not apply for leave or its application seeking leave is refused,the plaintiff is entitled to immediate judgment. If the court grants leave to defend but thedefendant fails to comply with any condition or other directions, the plaintiff is also entitledto immediate judgment.

          7.7 The court has the discretion to condone any delay in entering an appearance or applying for leave to defend if the defendant shows sufficient cause"

10. The assertion of counsel for the petitioner that since the defendant has not taken a leave to defend, hence the suit could not be tried as ordinary suit, is utterly misconceived because the petitioner has not served summons for judgement in Form-4A to the defendant which has to be served only after appearance of the defendant before the trial Court and not before that.

11. Therefore, in the view of default by the plaintiff himself of not serving summons under Form-4A in terms of Order XXXVII Rule 3(4) CPC, the petition filed by the petitioner objecting to the procedure for ordinary suit being adopted by the trial Court, is utterly misconceived. The petition, therefore, fails and is dismissed.