Case Analysis

CIVIL PROCEDURE
CODE
PROFESSIONAL SKILL DEVELOPMENT ACTIVITY

Submitted by: Shagun Bhadana, 02816503515, BBA LLB, V Semester.

11/13/2017
 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB

CONTENTS

1. Introduction. 3
2. Factual Background 4
3. Arguments of the parties. 5
4. Holdings of the court... 6
5. Annexure A.. 9

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 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB

INTRODUCTION
Delhi HC Passes Landmark First Order on Summary Judgement Proceedings Under Order 13A

of the CPCl.

A succinct and very well written order, Justices Badar Durrez Ahmed and Ashutosh Kumar of

the Delhi High Court delivered the first ever decision to interpret Summary Judgement

Proceedings under Order 13A of the Civil Procedure Code (CPC). Passed on the 4th of January,

2016 this case: Bright Enterprises Private Ltd. & Anr. v. MJ Bizcraft LLP & Anr.(read the

order in Annexure A) was originally instituted to claim a permanent injunction restraining inter

aliatrademark infringement and dilution of goodwill, as it was contended that the Defendants

use of PRIVEE was identical or deceptively similar to the Plaintiffs trademark MBD PRIVE

and PRIVE. It is worthwhile to note that while the Plaintiffs used PRIVE in the hotel

business, the Defendants used PRIVEE in relation to a nightclub in the hotel Shangri-La Eros.

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 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB

Factual Background
The case was filed as a commercial suit, as the damages claimed exceeded Rs. 1
crore, which qualified as specified value under the Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts Act,
2015 (Commercial Courts Act). The suit was dismissed in limine by a Single
Judge who held that suits doomed to fail and of which there is no chance of
success should be dismissed at whatever stage the court finds it to be so. The
Single Judge had relied on two judgements to come to this conclusion Dr. Zubair
Ul Abidin v. Sameena Abidin and Camlin Private Limited v. National Pencil
Industries. The Court found, at the outset, that the reliance placed on these
judgements was misguided.
The Single Judge, in dismissing the suit had invoked Order 13A, which details the
procedure to be followed for Summary Judgements. A few important facets of
Order 13A for this case are as follows: A summary judgement is the procedure by
which Courts may decide a claim to a commercial dispute without recording oral
evidence. An application for summary judgement may be made any time after the
summons have been served on the defendant, but not after the Court has framed
issues. Summary judgements may be passed if the Court considers that there is
either no real prospect of either the Plaintiff or the Defendant succeeding, or that
there is no other compelling reason why the claim should not be disposed of before
recording oral evidence.

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 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB

Arguments of the Parties

Order 13A goes on to detail the procedure to be followed in these situations, and
relevant to the present case is the mandate that the application must contain a
statement that it is an application for Summary Judgement made under the Order.
It is the case of the Plaintiffs that there was no application moved in respect of a
Summary Judgement, and hence, one cannot be delivered by the Court. It was
further contended that the judgement of the Single Judge had been delivered before
the issuance of summons, and hence was liable to be set aside. The Plaintiffs
argued that the dismissal of the suit did not consider the averments made in the
plaint. They contend that while the plaint could have been rejected under Order 7
Rules 10 and 11 of the CPC, this is not the case in the present matter. They argue
that as long a cause of action is disclosed in the plaint, the suit cannot be dismissed
without the issuance of summons, on the mere ground that it is weak and unlikely
to succeed.

On the other hand, the Respondents argued that the Order had to be interpreted in
such a way as to consider every procedure to be permitted unless expressly
prohibited. Therefore, it was contended that should the legislature have intended to
prohibit the issuance of a summary judgement, it would have included an express
provision stating the same.

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 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB

Holding of the Court

The Court first examined certain provisions of the CPC: Section 9 makes clear that
Courts shall have jurisdiction to try all suits of a civil nature except those expressly
barred. Section 26(1) mandates that a plaint is to be presented for institution of the
suit. Section 27 and Order V Rule 1 state that a summons may be issued to the
Defendant to appear and answer the claim against him after a suit is duly
instituted. The Court noted that since the present case was one of dismissal of the
suit on merits, the only issue to be examined was whether the Court had the
discretion whether to issue summons, since the suit had already been duly
instituted.
It was held that the use of the word may does not give the Court any discretion in
the matter, and that the issuance of summons was not optional. Therefore, it was
opined that in all cases not barred by Order 7 Rules 10 and 11, the issuance of
summons was mandatory and consequentially, that the Single Judge ought to
have issued summons to the Defendants. The non-issuance, in the Courts eyes was
contrary to the provisions of the statute.

Period of Filing Application

With regard to Order 13A, the Court held that the Single Judge erred in
invoking the provisions for a Summary Judgement, as this power could only
have been exercised in the window after the summons are served on the
Defendant, and before the Court frames issues in the suit. It was stressed that
the specific time period within which an application for Summary Judgment
could be made was of utmost importance. The Court observed that the
provisions relating to Summary Judgements were exceptional in nature, and out
of the ordinary course that a normal suit would follow. It was held that for this
reason, the conditions mentioned in Order 13A were to be followed
scrupulously, or it may result in gross injustice.

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 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB

Contents of Application
In addition to stressing upon the importance of the time period within which the
application could be filed, the Court held that a Summary Judgement would not
be possible without an appropriate application, which complied with the
mandated contents in Rule 4 of Order 13A. The Court additionally observed
that both the application, and the respondents reply were required to disclose
all material facts and identify points of law, if any; as well as include any
documentary evidence relied on. It was held that both should also address the
real prospects of succeeding, or dismissing the claim. The respondents reply
should also include the issues to be framed for trial, as well as identify further
evidence to be brought on record at trial; the reply should additionally state why
the Court should not proceed with a Summary Judgement in light of the
evidence and material on record.

Nature of Proceedings
On a plain reading of Order 13A, the Court held that the proceedings were
adversarial and not inquisitorial in nature. Therefore, a summary judgement
could not be rendered in the absence of an adversary, and merely on the
inquisition by the Court. In conclusion, the Court highlighted certain sections of
the Single Judges order which lead to the deduction that the Learned Judge had
based his conclusions on his own research, without giving an opportunity of
rebuttal to the Plaintiffs. The Court was of the opinion that the Single Judge
erred in this regard, as he could not himself become a witness in a case before
him.
Order 13A is a recent addition through the Commercial Courts Act, which was
cleared by the Cabinet and received Presidential assent on October 23, 2015.
This case brings up the question of the course of action judges may take if they
find a plaint not to be worthy of adjudication. It may be rejected, or returned
which the Court importantly distinguished from the dismissal of a suit. Order 7
Rule 11 of the CPC lists circumstances in which a plaint may be rejected, one

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 Civil Procedure Code, PSDA
Submitted by:
Shagun Bhadana
V Semester, BBA LLB
of which is the non-disclosure of a cause of action. While the dismissal of a suit
would result in a subsequent suit being barred by res judicata, the return, or
rejection of a plaint would not have the same consequence.
The present order is hard hitting, to the point, and crystal clear. It fills an
important lacuna in the law, as to the best of my knowledge no Court has
interpreted the procedure for Summary Judgements before this decision. When
the Single Judge invoked a Summary Judgement under Order 13A without
issuing summons, he did not give the Plaintiff the right to prove his case. The
Court was eloquent in holding that: a court may feel that the case of a Plaintiff
is weak but that is no ground whatsoever for throwing out the suit log, stock
and barrel without giving the Plaintiff an opportunity of proving and
establishing its case. Justice Ahmed even borrowed Lewis Carrols words to
describe the situation the hurrier I go, the behinder I get.
Even though the inclusion of the procedure for a Summary Judgment is
praiseworthy, Courts have seen one too many frivolous lawsuits admitted. As
the learned judges in this case rightly note, the conditions mentioned in Order
13A are to be very strictly followed, and the real prospect of succeeding in a
claim or defence has to be interpreted not only to avoid injustice to parties, but
to keep out frivolous litigation as well.