What are summary suits?

The Code of Civil Procedure, 1908 provides for a summary procedure in respect of certain suits. Provisions relating to summary procedure are found in O. 37, Rules 1 to 7 of the Code. A Summary suit is intended to facilitate the speedy disposal of cases. The object that underlies the summary procedure is to guard against delaying tactics that are indulged in by a defendant, who may have no genuine defence. In short, the essence of summary suits is that the defendant is not, as in an ordinary suit, automatically endowed with the right to defend a suit. The right to exercise his defence will be granted to the defendant only if the court is convinced as to the authenticity of his claims. The summary procedure is a powerful weapon in the hands of a court to discourage frivolous defences

Can all courts entertain summary suits? No. The summary procedure is confined to the superior courts. Only the following courts shall entertain summary suits,

High Courts. City Civil Courts. Courts of small causes. Such other courts as may be specifically empowered in this behalf by the High Court from time to time by a notification in the Official Gazette.

What categories of suits are covered by the summary procedure? Only the following classes of suits can be entertained in a summary court:

Suits on bills of exchange, hundies and promissory notes.

Suits in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant with or without interest rising; o on a written contract,
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on an enactment, where the sum to be recovered is a fixed sum or a debt other than a penalty or on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

What are bills of exchange, hundies and promissory notes? A 'Bill of Exchange' is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of a certain person or to the bearer of the instrument. Indigenous bills of exchange are generally called 'Hundies'. A 'Promissory Note' is an instrument in writing (not being a bank note or a currency note containing an unconditional undertaking, signed by the maker to pay a certain sum of money only to, or to the order of a certain person or to the bearer of the instrument.

What is the procedure for the institution of a summary suit? summary suit can be instituted in any one of the above mentioned superior courts by presenting a plaint and it shall comprise the following:

a specific averment to the effect that the suit under Order 37 of the Code Of Civil Procedure. that no relief, which does not fall within the ambit of rule 2 of Order 37, has been claimed in the plaint, the following inscription, namely:

'(Under Order XXXVII of the Code of Civil Procedure, 1908)' shall appear immediately below the number of the suit in the title of the suit. The following points are important: 1. The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.

2. The defendant shall not defend the suit unless he enters an appearance within 10 days of the summons being served upon him and in the event of his making himself scarce, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum provided that sum does not exceed the one mentioned in the summons. The plaintiff is also entitled to interest at the rate specified up to the date of the decree and such other costs as may be determined by the High Court from time to time.

What is the procedure for the appearance of the defendant in a summary suit? This is set out in Order 37, Rule 3.

The plaintiff must serve on the defendant a copy of the plaint and annexures together with a copy of the summons under Rule 2. Within ten days of the receipt of the summons, the defendant must file an appearance either in person or through an Advocate and also an address for service of notice on himself. Notice of such appearnce must be sent to the plaintiff or his advocate. If the defendant enters an appearance, the plaintiff shall serve on the defendant: o a summons for judgment in Form No. 4-A of Appendix B, returnable not less than ten days from the date of service and
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an affidavit in support verifying the course of action, the amount claimed and stating that in the plaintiff''s belief there is no defence to the suit.

The defendant may, within 10 days from the service of the summons for judgment, file an affidavit applying for leave to defend the suit and disclosing such facts as may be deemed to be sufficient to entitle him to defend the suit. Leave to defend may be granted either unconditionally to the defendant or upon such terms as may appear to the court to be just. Leave to defend shall not be refused unless the court is satisfied that the facts disclosed by the defendant either do not indicate that there is a substantial defence or that the intended defence is frivolous or vexatious. If the defendant admits his liability to pay part of the amount claimed from him, the court will not grant leave to defend the suit, unless the defendant deposits this amount in court. At the hearing of the summons for judgment o if the defendant has not applied for leave to defend or, if he has applied for leave and leave has been refused, the plaintiff, is entitled to obtain judgment forthwith in his favour.
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If the defendant is granted leave to defend the whole or part of the claim and the court has directed him to give security within the time specified by the court, failure to carry out the court's directions shall entitle the plaintiff to obtain judgment forthwith in his favour.

The court has the power to condone the defendant'' delay in entering appearance or applying for leave to defend.

N.B: It is pertinent to note that the Bombay High Court has framed rules for summary suits (Rules 221 to 227 of the Bombay High Court (Original Side) Rules, 1980, which are slightly different from the above, in particular, Rule 227, which provides that if the plaintiff does not apply for a decree within 6 months of the filing of the suit, the suit shall be notified for dismissal after eight day's notice. What are the principles that govern granting of leave to defend? There are no hard and fast rules governing the grant of leave to defend. If, from the facts disclosed by the defendant, it becomes obvious that a triable issue exists, the leave should ordinarily be granted with no strings attached. This is called 'unconditional leave to defend'. However the court may attach some conditions if the defence makes out a plausible but an improbable case. The condition generally requires the defendant to deposit in court the entire amount claimed, or at least some part of it. If the defence comes across as patently vexatious, the court may refuse to defend altogether. The Supreme court has held that leave to defend should not be refused where there is a serious conflict as to facts or issues of law arise or unless the defence set up no defence or illusory or practically moonshine.

What constitutes a triable issue? An issue would be triable if it raises a bonafide defence which is genuine and plausible and not improbable. If there is a triable issue i.e. if there is a fair dispute to be tried, leave should not be denied to the defendant. It must be remembered that at the stage of granting leave, the court is not finally deciding the suit but only considering whether or not there is a plausible defence. The defendant may still lose at the stage of final hearing, and be ordered to apy the entire claim of the plaintiff. It may also happen that the plaintiff may not be able to prove his case and the suit may be dismissed.

Can the defendant set aside the decree turning down his application for leave to defend?

Where the defendant files an application for leave to defend and fails to get leave, he can file an appeal but his chances of success are very slim since the appeal will proceed on the basis that the defendant admits the plaintiff''s case in the suit.

Is an order granting conditional leave to defend appealable? The Bombay High Court has held that a conditional order is a 'judgement' under Clause 15 of the Letters Patent and therefore appealable (M/s D. Shanalal v. Bank of Maharashtra AIR 1989 Bom 150).

Frame of Suit
What are the basic things that one must keep in mind while framing a suit? Order 2, rule 1 prescribes that every suit shall, as far as practicable, be framed so as to afford a ground for final decision on the subjects in dispute and to prevent further litigation on such subjects. The object of this rule is that all matters in dispute between the parties should be disposed of in the same suit. This rule is mandatory and under it, the plaintiffs are duty bound to claim the entire relief. O 2, r 2 provides that every suit should include the whole of the claim, which the plaintiff is entitled to make in respect of that cause of action. Further, he may also abandon any portion of his claim so as to bring the suit within the jurisdiction of any Court. However when he does so,

he cannot file a suit in respect of the portion of the claim so relinquished. Likewise, under sub-rule 3 to O2, r2, if a person is entitled to more than one relief in respect of the same cause of action, he may sue for all or any of the reliefs. If he omits, except with the leave of the court, to sue for all such reliefs, he cannot later sue for such relief, so omitted. The provisions of this rule indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit as O2, r2 is based on the principle that the defendant should not be vexed twice for one and the same cause. Where a cause of action, on the basis of which previous suit was brought or filed, does not form the foundation of subsequent suit and, in the earlier suit the plaintiff could not have claimed relief, which he sought in the subsequent suit in that case, the plaintiff''s subsequent suit would not be barred by O2, r2 of the CPC. In cases of continuous causes of action or recurring cause of action, bar of O2, r2 (3) cannot be invoked.

A sues B to recover one of the two properties left by C on the ground that he, and not B, is his heir. Thereafter, he applies to amend his plaint for including the 2nd property left out in the original plaint. B opposes the application for amendment which is disallowed by the court. What would follow now? A suit by A against B to recover the 2 nd property as heir of C would be barred under O2, r2, on the ground that A is to be taken to have omitted to sue for it in the 1st suit, notwithstanding the fact that after its institution. he made an attempt to include it in that suit, but his attempt was foiled by the opposition of B.

If in the subsequent suit, the cause of action is different from that in the 1st suit, is the subsequent suit barred? No the subsequent suit is not barred. What r2, O2 requires is that every suit shall include the whole of the claim arising from one and the same cause of action. However, this does not mean that every suit shall contain every claim or every cause of action which the plaintiff may have against the defendant.

One great decisive factor, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the 1 st suit, is whether the same evidence will maintain both actions.

Mr A instituted a suit for possession of property X. Can he, in a subsequent suit, file for mesne profits in respect of same property, accrued due prior to the institution of the suit for possession? The High Courts of Calcutta, Madras, Bombay, Madhya Pradesh have held that a suit for possession of land is not a bar to a subsequent suit for mesne profits of such land, accrued due prior to the institution of suit for possession, the reason given being that the cause of action for possession is quite distinct from the cause of action for mesne profits.

What would be the position in law when a person is entitled to more than one relief in respect of the same cause of action? Where a person is entitled to more than one relief in respect of the same cause of action, he may sue for all reliefs or he may sue for one or more of them and reserve his right with the leave of the Court to sue for the rest. If no such leave is obtained, he will be precluded from afterwards suing for any relief so omitted. It is only when one or more relief is claimed under the cause of action sued on, that the plaintiff can reserve one or some of them with the leave of the court. It is for the defendant, who raises the plea of bar, to establish 1) that the subsequent suit was in respect of the cause of action on which the earlier suit was based, 2) that in respect of such a cause of action, the plaintiff was entitled to more than one relief and 3) that without leave of the court, he had omitted to claim such a relief claimed by him in the subsequent suit.

Just like there are provisions for joinder of plaintiffs and joinder of defendants is there any provision regarding the joinder of causes of action? Rules 3 & 4 of Order 2 deal with joinder of causes of action and provides that a plaintiff can in the same suit against the same defendant (or several defendants jointly) unite several causes of action. Similarly, if several plaintiffs have causes of action in which they are jointly interested against the same defendant, (or the same

defendants jointly) they may unite such causes of action in the same suit. The jurisdiction of the court, when causes of action are united, will depend on the amount or value of the aggregate of subject matters at the date of instituting the suit. This rule has to be read with Order 1, rules 1 & 3. The courts may direct separate trials thereof, if all causes of action cannot be tried together.

What is meant by joinder of claims? Rule 4 of O2, deals with what are called joinder of claims. It declares that no claims, other than those specified in 3 exceptions below, shall be joined without the leave of the court with a suit for the "recovery of immovable property". Otherwise, it would result in a misjoinder of claims. No cause of action can be joined without the leave of the Court, except in the following 3 cases:

Claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof; Claims for damages for breach of any contract under which the property or any part thereof is held; and Claims in which the relief sought is based on the same causes of action.

Nevertheless, a party in a suit for foreclosure or redemption may ask the court to be put in possession of the mortgaged property. No leave is necessary where claims are joined in which relief sought is based on the same cause of action. What happens when there are two or more plaintiffs, two or more defendants and two or more causes of action? In a case of two or more plaintiffs, two or more defendants and two or more causes of action, the plaintiffs must be jointly interested in the cause of action, and the defendants also must be jointly interested in the causes of action. If the plaintiffs are not jointly interested in the causes of action, the suit will be based for misjoinder of plaintiffs and causes of action. If the plaintiffs are jointly interested in the several causes of action but the defendants are not, the suit would be bad for multifariousness. If neither the plaintiffs nor the defendants are jointly interested in the causes of action, the suit will be bad for a double misjoinder, namely, misjoinder of plaintiffs and causes of action and misjoinder of defendants and causes of action.

Can a claim by a person, in his representative character, be joined in the same suit with claims by him personally? Rule 5 of O2, provides that no claim by a person in his representative character shall be joined in the same suit with claims by him personally nor shall claims against a person in his representative character be joined with claims against him personally. However, in certain circumstances, as mentioned below, this is possible: 1. Unless the claims by or against him personally arise with reference to the estate which he represents; or 2. Unless he was entitled to, or liable for, those claims jointly with the deceased person whom he represents. The object of this rule is to prevent an executor or administrator from intermingling the assets of his testator with his own moneys. What are the court''s powers to set aside a decree? If the court thinks it reasonable to do so, it may set aside a decree under specific circumstances, or stay execution and may give leave to the defendant to appear at the summons and defend the suit. The powers under this rule (Rule 4) are extremely wide and the court can exercise them not only when there was no service of summons, but sufficient cause for non-appearance. The power under this rule applies to any exparte decree passed in a summary suit.

Institution of Suits
What is meant by the term 'pleading'? The term 'pleading' means a plaint or written statement. An application to sue, as pauper is not a pleading, in as much it becomes a plaint only after the application is granted. A defendant's pleading is his written statement. However, a plaintiff's pleading may also be his written statement, as where the defendant, in his written statement pleads a set-off. In such a case, the plaintiff has to file his written statement in answer thereto.

How is a suit instituted? Order 4, rule1, sub-rule 1 provides that every suit is to be instituted by the presentation of a plaint to the court or such officer as it appoints in this behalf. "Suit," apart from some context to the contrary, is ordinarily taken to mean a civil proceeding instituted by the presentation of a plaint. A plaint is to be filed once it is signed by a plaintiff and filed, even if it is not accompanied by a vakalatnama of an advocate. Unless a proceeding starts with a plaint, an order in such a proceeding does not result in a decree. The plaint is registered only after the presentation of the plaint is scrutinized. The date of presentation of plaint in the court or to the officer appointed would be the date of institution of the suit. The date of presentation of the plaint is not altered even when amendments are carried out in the plaint, without altering the cause of action, even if it involves deletion of some of the plaintiffs. Sub-rule 2 to Order2, r 4 prescribes that every plaint should comply with the rules contained in Orders VI & VII as far as they are applicable.

What is the duty of the court regarding register of suits? Rule 2 to Order 4 lays down that the court shall enter the particulars of every suit in a book called the register of civil suits. Such entries should be numbered in every year according to the order in which the plaints are admitted.

Parties to Suit
Should a suit have only 1 plaintiff or is it possible for 2 or more persons to be joined as plaintiffs in a suit? Under the present rule, (Order 1, Rule 1) several persons may join as plaintiffs in one suit, even if their causes of action are separate and distinct provided that:

1. The right to relief, alleged to exist in them, arises out of the same act or transaction or series of acts or transactions; and 2. The case is of such a character that, if such persons brought separate suits, any common question of law or fact would arise. Both these conditions should exist simultaneously to enable 2 or more person to join as plaintiffs in one suit. But, it is not essential that all questions arising in the case should be common to all the parties. It is enough if even 1 of the questions is common to them.

What is meant by misjoinder of parties? If 2 or more persons are joined as plaintiffs in a suit in a case not covered by O1, r1, it would be a misjoinder of parties. When the right to relief, alleged to exist in the plaintiffs arises from different acts or transactions and there is no common question of law or of fact, but the persons are joined as plaintiffs in the same suit, it would be a case of misjoinder of parties. The objection of misjoinder of parties should be taken at the earliest possible opportunity; if not, it is deemed to have been waived (O1, r13). When such an objection is taken, and the court finds it to be founded, the court should not dismiss the suit (O1, r9), but allow the plaint to be amended (O6, r17) by striking the names of such persons as have been wrongly joined as plaintiffs (O1, r10, sub-r(2)), and the suit may then be proceeded with (O1, r9). An objection on grounds of misjoinder of plaintiffs is not fatal to the suit.

Who is a necessary party and what is a non-joinder? A necessary party is one without whose presence no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings.

If a person, who is a necessary party to a suit, is not joined as a party to the suit, the case is of non-joinder. A suit should not be dismissed on grounds of non-joinder and the objection for non-joinder should be made before the 1st hearing (O1, r13). Also, the plaint must be amended by adding the omitted party either as plaintiff or defendant. No person can be added as a plaintiff, though he may be added as defendant, without his consent.

What happens in the event of a suit being brought by several plaintiffs in respect of the same act or transaction but where the causes of action are very distinct? Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such order as may be expedient. In the above case too, the court may put the plaintiffs to their election as to which of them will proceed with the suit or it may order separate trails or make such other order, as it may consider expedient. (Order 1 rule 2)

Can more than 1 person be charged as a defendant in a suit? Under O1, r 3 all persons may be joined as defendants' against whom any right to relief in respect of the same act or transaction is alleged to exist against such persons (jointly, severally or in the alternative) and where, if separate suits were brought against such persons, any common question of law or fact would arise. The object of this rule is to bring on record all the persons who are parties to the disputes relating to the subject matter so that the dispute may be determined in their presence at the same time, without any protraction, inconvenience. Moreover, the multiplicity of the proceedings may be avoided. Via this rule, a plaintiff has the right and the prerogative to choose and implead in a suit against the defendant, the person against whom he seeks relief. However, the court must be satisfied that the presence of the 'party to be added' would be essential in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. Before a party may be added as a defendant in the suit, it must be established that that party has some legal interest in the subject matter of the suit. Hence a plaintiff is entitled under this rule to join several defendants in respect of several and distinct causes of action subject to the discretion of the court to strike out one or more defendants on the

analogy of O1, R2, (power of court to order separate trials) if it thinks it is right to do so.

Can there be a misjoinder of defendants like a misjoinder of plaintiffs? Where there are more defendants than 1, the provisions of O1, r 3 would apply. This provides that 2 or more persons may be joined as defendants in one suit if the right to relief, alleged to exist against each of them, arose from the same act or transaction and there is a common question of law or of fact. However if parties are joined as defendants in contravention of the above conditions, then it would be a case of misjoinder of defendants. The objection to the misjoinder must be made at the earliest possible opportunity; if not, it will be deemed to have been waived (O1, r13). Where such an objection is taken and the court finds that it is well founded, the court should not dismiss the case (O 1, r 9), but the plaint may be amended (O 6, 17) by striking out the names of such persons as have not been properly joined as defendants (O 1, r 10, sub-r (2)), and the suit may then be proceeded with (O1, r9). Are there any provisions as regards the jurisdiction of courts in respect of joinder of parties? O 1, r 3 assumes the existence of a suit in a proper forum, i.e. in the court that has the jurisdiction to try the suit. If the court has such a jurisdiction, then this rule may come into play. However if a suit is brought against 2 defendants A and B and the court has the jurisdiction against A alone, but none against B, this rule does not confer the jurisdiction upon the court to try the suit against B, merely on the fact that the conditions of this rule are satisfied.

Can the court order for separate suits when there is a joinder of defendants? O 1, R 3A, where it appears to the Court that any joinder of defendants may embarrass or delay the trail of the suit, the Court may order separate trials or make such other order as may be expedient in the interest of justice.

R 3 permits joinder of defendants in spite of the causes of action against them being distinct, provided they arose from the same act or transaction or series of acts or transactions, all of them raising a common question of law or fact, the court has the discretion to decline to entertain several matters in one action if it is of the view that trail of several matters in one action may cause inconvenience and unnecessary expense to the defendants. If the plaint does not disclose a cause of action against any one or more of them, the suit against such defendant(s) is liable to be dismissed and no question of separating trials can arise.

Where in a suit there are several defendants, and it is dismissed against some of them for some reason, can the suit be continued against the rest of the defendants? Order 1, Rule 4 states that a decree can still be passed against the rest of them in spite of the fact that it is dismissed against some of the defendants. This has been provided for by O 1, r 4. The Code of Civil Procedure does not prescribe that a decree against some of the defendants to a suit cannot be passed or that if suit is dismissed against one defendant, it is required to be dismissed against other defendants also.

Are there any provisions regarding joinder of parties on the same contract? Order 1, Rule 6 states that the liability on a contract may either be 1) several, 2) joint and several or 3) joint. O1, r 6 prescribes that the plaintiff may at his option, join as parties to the same suit all or any of the persons severally, or jointly, and severally, liable on any one contract, including parties to bills of exchange, hundies and promissory notes.

A and B agree to pay Rs 5,000 each to C. Here A and B are severally liable on the contract. Hence C may bring one suit against A and B or he may bring a separate suit against A and a separate suit against B. These suits may be brought simultaneously or they may be brought successively one after the other. If the suit is brought against A and a decree is obtained against him, and the decree is satisfied, C cannot subsequently sue B on the contract. However, if the decree is not satisfied then C is not precluded from suing B. The legal consequences of joint and several liabilities on a contract are the same as those of several liabilities. It must be remembered however that in the case of a joint contract, there is a single cause of action, which can only be sued on once. What would occasion if the plaintiff were in a doubt as to whom he should seek redress from? Order 1, r 7: When the plaintiff is not sure as to whom he should sue in order to obtain redress, he may under O 1, r 7 join two or more defendants in order that the question as to which of the defendants is liable and to what extent, may be determined as between all parties. This rule does not enable a plaintiff to join separate causes of action against different defendants in one action in a case where he could not do so under O1 r 3 above. Where a person has knowledge of his rights and is in doubt as to the person against whom it is to be enforced, he is entitled to proceed under this rule and file a suit within the period of limitation that is prescribed. What is a representative suit? Order 1, r 8: a representative suit is one, which is filed by one or more persons under rule 8 on behalf of themselves and others having the same interest. O1, r 8 provides that where in one suit there are numerous persons having the same interest, one or more such persons may with the permission of the Court, sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested. The court may also direct that one or more such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested. In order to determine whether the persons, who sue or are sued, or defend have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit they sue or are sued or defend the suit, as the case may be. It is the existence of a sufficient community of interests among the persons on whose behalf or against

whom the suit is instituted which is the governing factor in deciding whether the procedure under this rule could properly be adopted or not. Further, in representative suits it is mandatory that notice of the institution of the suit be given to all persons who are interested. It may be noted that the condition of obtaining the courts permission is mandatory. This power under r8 can be applied only in suits and not in writ proceedings and public interest litigations. Moreover, R8 does not apply to an action for libel. In a representative suit, any decree passed is binding on all persons on whose behalf or for whose benefit the suit is instituted or defended as the case may be. Also, where the suit is brought in a representative capacity, the fact should be stated not only in the plaint but also in the title of the suit. Any person who is deemed to be constructively a party to a suit, filed under this rule, has the right to file an appeal against a decree passed therein, with the leave of the appellate court and such leave should be granted if the decision would adversely affect the applicant. If one person appointed to conduct the suit in representative capacity dies, any other person interested may apply to be appointed under this rule and the limitation for such an application is under Article 181 of the Limitation Act, (now Article 137 of Act 36 of 1963). Also, on the death of such a person it is not necessary to conduct fresh proceedings.

What would happen if a suit were instituted in the name of the wrong person as plaintiff? Order1 r 10: In such a case or even when there is doubt whether the suit has been instituted in the name of the right plaintiff, at any stage of the suit, the court may, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms and

conditions that the Court would think as just. However, no person can be joined as a plaintiff under this rule without his consent. Nevertheless, no amendment should be allowed under the above rule (O1, r 10 sub-rule (1)) if the rights in dispute between the new plaintiff and the defendant would not be the same as those in dispute between the original plaintiff and the defendant. Further, sub rule (2) of O1, r10 provides that the court may at any stage of the suit, order that the name of any party, who is improperly joined, be struck out, and the name of any person who ought to have been joined, added to the suit. Sub-rule (4) to O1, r 10 provides that if a defendant is added, the plaint must be amended unless the Court otherwise directs, and the amended copy of the plaint and Summons must be served on the new Defendant and also on the original defendant if the court deems fit. Further, when a person is added as defendant, subject to the provisions of S 22 of the Indian Limitation Act (1877 (15 of 1877)) the proceedings against him will be deemed to have started only on the service of summons to such person (sub-rule 5 to O1, r 10).

What is meant by transposing the Defendant as Plaintiff? The Court has the power to transfer a defendant to the category of plaintiff. This can be done by the court, suo moto or on the application of any of the defendants, provided however the defendant's claim is founded on the same cause of action where the plaintiff agrees such transposition should be made readily. Such a transposition should not be permitted if it results in changing the character of the suit or the deprivation of a valuable right already accrued to the adverse party such as bar of limitation. The defendant either under O1, r10, or under O 23, r 10 CPC has no right to seek the transposition when the person to be so transposed is not agreeable to it and rather opposes the transposition.

Can a Plaintiff be transposed to position of a Defendant? In the event of a difference between co-plaintiffs, the proper course is to make an order that the name of one of them should be struck out as a plaintiff and added as a defendant. However, such an order can be given only on a security being furnished by the plaintiff who continues

on the record as plaintiff for the costs of the original defendant up to the date of amendment.