Mad HC | Non-service of copies of plaint is not a ground for converting a summary suit filed under Or. 37 CPC into a regular suit

Madras High Court: V. Bharathidasan, J., dismissed a revision petition filed against the order of the trial court whereby the application filed by the petitioner-defendant to convert the original summary suit filed by the respondent-plaintiff under Order 37 CPC into a regular suit was dismissed.

The respondent had filed a suit for the recovery of money against the petitioner. In that suit, while serving the summons, the copy of the plaint and the enclosures were not served on the petitioner. Hence, the petitioner filed an application stating that as there is a mandatory violation of Order 37 Rule 2 CPC, the suit is not maintainable and the same has to be converted into a regular suit. The trial court dismissed the said application. Challenging the same, the instant revision was filed.

P. Sureshbabu, counsel appearing for the petitioner, contended that under Order 37 Rule 2 CPC, the plaintiff has to necessarily serve summons along with a copy of the plaint and the enclosures to the defendant. But in the instant case, a copy of the plaint and enclosure were not served on the defendant. Hence, as there is mandatory violation he cannot maintain the suit under Order 37 CPC and it should be treated as a regular suit.

The High Court considered the record and noted that according to the trial court, along with the summons, a copy of the plaint and documents were sent to the defendant and as he was not available, the summons was returned and hence it could not be stated as a mandatory violation of Order 37 CPC. That apart, as copies could not be served on the defendant, on that ground alone a summary suit could not be converted into a regular suit. In the above circumstances, the trial court dismissed the said application.

Affirming the findings and observations of the trial court, the High Court held that there was no merit in the instant revision petition and, therefore, it was dismissed. The trial court was directed to serve a copy of the plaint and the documents enclosed along with the plaint to the defendant within a period of one week. [D. Elangovan v. Shrenik Kumar, 2020 SCC OnLine Mad 367, decided on 06-02-2020]

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