summary suit

Querist : Anonymous (Querist) 30 January 2010 This query is : Resolved
in a summary suit filed by one advocate "A" in the year 2002, the respondent served with the summons in 2006 and affidavti of service is also filed in the year 2006 and as per the direction of Hon'ble j.m.f.c. matter wasadjourned for exparte evidence.

in 2009 one another advocate "B" engaged by the plaintiff and joint vakalatnama of "A" & "B" filed. since 2006 till 2009 the advocate has not filed affidavit of ex-parte evidence. the advocate "B" has prepared the affidavit and handedover to the advocate "A" to file in the court.

on the date due to some wrongful noting in roznama the court has directed the plaintiff to serve the summons upon defendant. the Advocate "B" appeared at that time has not tell and clarified the court that the summons already served and matter was already adjourned for ex-parte evidence for the reason best known to him.

now on next date the advocate "B" appeared and clarified everything before the court and as per the direction of the court made an application for necessary correction in court's roznama and alongwith application tendered the affidavit of ex-parte evidence in the court and the matter was adjourned.

on the next date when the matter called out one advocate appeared on behalf of defendant as the defendant was served with summons. the Advocate "B" made inquiry and came to know that behind his back and without the knowledge the Advocate "A" has re served the defendat with summons.

my query is that can Adv. "B" proceed with matter as ex-parte or on the basis of resummoning the defendats can have right to file their written statement?

what remedy for Adv. "B"? under what provision?plz give citation if any is available.

Thanks in advance.

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adv. rajeev ( rajoo ) (Expert) 30 January 2010
Wen summons is served again on the defendant, he has got every right to file WS. At any time party( defendant ) can appear and he can file an application for setting aside an ex-parte order but genuine reason should be shown.

niranjan (Expert) 30 January 2010
So far the summary suit is concerned,the complete procedure is given in rule 3 of order 37.The deft.appearing cannot file the ws,but he has to file affidavit and disclose such facts as necessary to defend and the court may grant permission to defend the case on deposit of certain amount in the court and thefeafter the matter will proceed like suit by filing ws.

Y V Vishweshwar Rao (Expert) 31 January 2010
i Agree with Mr Niranjan , The Summary Suit Procedure is under order 37 CPC

The suit is in summary nature , with procedure prescribed under oder 37 of CPC .Once Summons served the procedure is to be followed. Service of Affidavit for exparte Evidence may not give additional Rights to Defendnat

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