Order XXXVII Rule 3 CPC - Procedure for Appearance of Defendant
Order 37 Rule 3 of the Code of Civil Procedure, 1908 governs the defendant's appearance, summons for judgment, application for leave to defend and consequences of non-compliance in a summary suit.
Meaning and scope of Order XXXVII Rule 3
Order XXXVII provides a special summary procedure for eligible monetary claims specified in Rule 1. Rule 2 deals with institution of summary suits, while Rule 3 sets out how a defendant enters appearance and obtains the court's permission, called leave to defend, to contest the claim. Unlike an ordinary civil suit, the defendant cannot simply proceed to contest the claim without following this special procedure.
Step-by-step procedure under Rule 3
- Service of summons and documents: The plaintiff serves the summons, plaint and annexures. The defendant ordinarily has 10 days from service to enter appearance and file an address for service (Rule 3(1)).
- Notice of appearance: On entering appearance, the defendant notifies the plaintiff or the plaintiff's advocate (Rule 3(3)).
- Summons for judgment: After appearance, the plaintiff serves Form No. 4A, supported by an affidavit. Its return date must be at least 10 days after service (Rule 3(4)).
- Application for leave to defend: The defendant ordinarily applies within 10 days of service of the summons for judgment, disclosing facts supporting a defence (Rule 3(5)).
- Judicial decision: The court considers whether to grant unconditional or conditional leave, or enter judgment under Rule 3(5)-(6). Delay may be excused for sufficient cause under Rule 3(7).
Leave to defend: legal principles
Under Rule 3(5), the court considers whether the defendant has disclosed facts indicating a substantial or genuine triable defence. Leave may be unconditional or subject to just terms. The first proviso limits refusal of leave where the disclosed facts indicate a substantial defence and the proposed defence is not frivolous or vexatious. Where the defendant admits part of the plaintiff's claim as due, the second proviso requires deposit of that admitted amount before leave is granted.
The Supreme Court has discussed the principles governing leave to defend in IDBI Trusteeship Services Ltd. v. Hubtown Ltd. (2017) 1 SCC 568 and B.L. Kashyap and Sons Ltd. v. JMS Steels and Power Corporation (2022) 3 SCC 294. Application of these principles depends on the pleadings, evidence, statutory text and any binding later decisions.
Order XXXVII Rule 3 CPC - statutory provisions
The following reproduces the seven sub-rules from the supplied webpage for reference.
(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.
Practical implications
For plaintiffs: Serve the required documents, verify the claim through the affidavit accompanying the summons for judgment, and observe the prescribed form and return date. For defendants: Promptly enter appearance, give the prescribed notice and address for service, and support any leave-to-defend application with concrete facts. If any sum is admitted as due, consider the statutory deposit requirement.
These provisions must be read with applicable High Court rules, court notifications, limitation law and the CPC as amended. Whether a suit is eligible for summary procedure is governed by Order XXXVII Rule 1.
Frequently asked questions
What is the time limit to enter appearance under Order 37 Rule 3 CPC?
Ordinarily 10 days from service of the summons with the plaint and annexures. The court may excuse delay for sufficient cause under Rule 3(7).
When must a defendant apply for leave to defend?
Ordinarily within 10 days from service of the summons for judgment under Order XXXVII Rule 3(5).
Is deposit mandatory if the defendant admits part of the claim?
Under the second proviso to Rule 3(5), leave to defend shall not be granted unless the admitted amount is deposited in court.
Official legislation and related resources
Consult the Code of Civil Procedure, 1908 on India Code for the central legislation, and Supreme Court of India for judgments and court information. Check the applicable court rules and authoritative text for local amendments.