Supreme Court of India
RASIKLAL MANICKCHAND DHARIWAL & ANR.versusM/S. M.S.S. FOOD PRODUCTS
- Citation
- 2011 INSC 820
- Decided
- 25 November 2011
- Disposal
- Dismissed
- Bench
- AFTAB ALAM
Holding
A successor judge may validly pass an ex parte decree under Order XVIII Rule 15, and the defendants’ loss of cross‑examination rights forfeits their entitlement to further oral arguments, rendering the decree valid.
Summary
The plaintiff, M.S.S. Food Products, sued the appellants for passing off, seeking a declaration and injunction over the use of the mark "Manikchand". The trial court granted an interim ex parte injunction, later proceeded ex parte after the defendants failed to appear, closed their right to cross‑examine, heard only the plaintiff’s arguments and delivered a decree in the defendants' absence. The defendants appealed, contending that the decree was a nullity because the judge who delivered it had never heard them and that procedural rules required oral arguments. The Supreme Court held that under Order XVIII Rule 15 of the CPC a successor judge may continue the suit from the stage left by the predecessor and may pass judgment even without oral arguments when one party has lost that right, and that Order IX Rule 7 does not apply once the suit is closed for judgment. It also affirmed the trial court’s admission of secondary evidence and rejected challenges under Order XXX Rule 10. Consequently, the ex parte decree was upheld and the appeal dismissed.
Issues considered
- Whether an ex parte decree delivered by a successor judge who did not hear the parties is a nullity.
- Whether Order XVIII Rule 15 permits a successor judge to pass judgment without oral arguments after the predecessor judge’s departure.
- Whether Order IX Rule 7 applies after the suit is closed for pronouncement of judgment.
- Whether the defendants forfeited their right to cross‑examine and to address the court on merits.
- Whether the trial court erred in admitting secondary evidence.
- Whether the plaintiff’s suit is maintainable under Order XXX Rule 10 when filed by a proprietorship.
- Whether the doctrine of proportionality is applicable to procedural orders in civil suits.
Legislation cited
- Civil Courts Act, 1958 (Madhya Pradesh)s. Rule 6
- Code of Civil Procedure, 1908s. Order IX Rule 6(1)(a), s. Order IX Rule 7, s. Order VII Rule 11, s. Order XI Rules 12, 14, s. Order XVIII Rule 13, s. Order XVIII Rule 15, s. Order XVIII Rule 2, s. Order XVIII Rule 4, s. Order XVIII Rule 5, s. Order XVI Rules 1, 6, s. Order XX Rule 1, s. Order XXX Rule 10
- Trade Marks Act, 1999s. Section 2(1)(zg)
Subjects
ex parte decreeOrder XVIII Rule 15Civil Procedure Codepassing offinjunctioncross‑examinationsecondary evidenceOrder XXX Rule 10doctrine of proportionalitysuccessor judge
Judgment
[2011] 14 (ADDL.) S.C.R. 1141
RASIKLAL MANICKCHAND DHARIWAL & ANR. A
v
M/S. M.S.S. FOOD PRODUCTS
(Civil Appeal No. 10112 of 2011)
NOVEMBER 25, 2011
B
[AFTAB ALAM AND R.M.; LODHA, JJ.]
Code of the Civil Procedure, 1908:
Or. 18 r.15, 2, 2(1), (2), (3) and (3A), 7, 4, 5 and 6(1)(a);c
Or. 9 r. 7; Or. 20 r. 1 - Ex parte decree - Set aside in appeal
- Challenge to - On facts, respondent-plaintiff filing suit for
passing off action, declaration and injunction against
appellants-defendants as also application for temporary
injunction - Ad interim ex parte injunction granted in favour D
of plaintiff - Appeal by defendants - High Court dismissed
the same and directed the trial court to conclude the trial of
the suit expeditiously and finally dispose it of, within the
stipulated period - In complete disregard of the said direction,
the defendants filing application after application - E
Subsequently, due to non-appearance of defendants their
right to cross examine the plaintiff's witness were closed and
matter was fixed for pronouncement of judgment and on the
said date none appeared and defendants were proceeded ex
parte - Plaintiff closed its evidence, the trial court heard the F
arguments of the plaintiff ex-parte and fixed the matter for
pronouncement of judgment - Defendants filing application
for setting aside the said ex parte order - Meanwhile the
presiding officer who heard the arguments got transfeffed and
new Presiding officer assumed the charge - Trial court
dismissing the application and decreed the suit against G
defendants - Appeal filed by defendants against the ex parte
decree dismissed by the High Court-Appeal before Supreme
Court - Case of defendants that judgment passed by
Presiding Officer of trial court and upheld by High Court was
1141 H
1142 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A nullity as it was delivered by a Judge who never heard the
matter; that the predecessor Judge fixed the date for
pronouncement of judgment but she never delivered
judgment - Held: Defendants, having lost their privilege of
cross-examining the plaintiff's witnesses and of advancing oral
B arguments, forfeited their right to address the trial court on
merits - Successor Judge can deliver the judgment without
oral arguments where one party has already lost his right of
making oral arguments and the other party does not insist on
it - It cannot be said that the trial court violated the
c fundamental principle of law-one who hears must decide the
case - Plaintiff closed his evidence and defendants failed to
appear, the trial court did not commit any error in ordering the
suit to proceed ex parte; hearing the arguments and closing
the suit for pronouncement of judgment - Once the suit is
closed for pronouncement of judgment, there is no question
0
of further proceedings in the suit - Merely, because the
defendants continued to make application after application
and the trial court heard those applications, it cannot be saia
that such appearance by the defendants is covered by the
expression "appeared on the day fixed for his appearance
E occurring in Or. 9 r. 7 and thereby entitling them to addres~
the court on the merits of the case - Or. 9 r. 7 has nc
application - It cannot be said that any prejudice was causeo
to the defendants if these witnesses did not enter the witness
box - Defendants by their conduct and tactics disentitleo
F themselves from any further indulgence by the trial court -
Thus, the trial court did not act illegally or with material
irregularity or irrationally or in an arbitrary manner in passing
the orders closing the right of the defendants to cross-examine
plaintiff's witnesses and fixing the matter for pronouncement
G of judgment.
Or. XVIII r. 15 - Nature of - Held: Provision contained in
r. 15 Or. XVIII is a special provision - It enables the successor
Judge to proceed from the stage at which his predecessor left
H the suit - The idea behind this provision is to obviate re-
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1143
M.S.S. FOOD PRODUCTS
recording of the evidence or re-hearing of the suit where a A
Judge is prevented by death, transfer or other cause from
concluding the trial of a suit <,ind to take the suit forward .from
the stage the predecessor Judge left the matter - Care is
taken that in such event the progress. that has already taken
place in the hearing of the suit is not set at naught - B
Expression "from the stage at which his predecessor left it" is
wide and comprehensive enough io take in its fold all
situations and stages of the suit-'- It cannot be narrowed down
by any exception - The principle that one who' Hears must
decide the case, is not applicable to all situations in the c
hearing of the suit ...;. Hearing of a suit does not mean oral
arguments alone but it comprehends both production of
evidence and arguments - Hearing of the suit begins when
evidence in suit begins and was concluded by pronouncement
of judgment.
D
Or. XVIII r. 2 - Statement and production of evidence -
Purpose of - Held: Is to give an option to the parties to argue·
their case when the evidence is conducted - Parties
themselves decide whether they would avail of this privilege
and if they do not avail, they do so at their peril. E
Or. XVIII r. 2(1) and (2) - Expressions "state his case",
"produce his evidence" and "address the court generally on
the whole case" occurring therein - Held: Said expressions
have different meaning and connotation. F
Or. IX r. 7 - Conclusion of hearing of the suit and the suit
closed for judgment - Applicability of Or. IX r. 7 - Held: Is not
applicable - Or. IX r. 7 pre-supposes the suit having been
adjourned for hearing .:.... Adjournment for the purposes of
pronouncing judgment is no adjournment of the "hearing of G
the suit''.
Or. IX r. 6 (1)(a) - After due seNice of summons, the
defendant not appearing when the suit is called on for hearing
- Effect of - Held: Order might be passed to hear the suit ex H
1144 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A parte - Said provision does not in any way impinge upon the
power of the court to proceed for disposal of the suit in case
both the parties or either of the parties fail to appear as
provided in Or. IX. ·
Or. XVIII r. 4 - Recording of evidence - Purpose and
8
objective of - Held: Is speedy trial of the case and to save
precious time of the court - Examination-in-chief of a witness
is now mandated to be made on affidavit with a copy thereof
to be supplied to the opposite party - Cross-examination and
re-examination of witness shall be taken either by the court
C or by Commissioner appointed by it - In a case in which
appeal is allowed, r. 5 provides that the evidence of each
witness shall be taken down in writing by or in the presence
and superintendence of the Judge - There is no requirement
in Or. XVIII r 5 that in appealable cases, the witness must
D enter the witness box for production of his affidavit and
formally prove the affidavit - Such witness is required to enter
the witness box in his cross-examination and, if necessary,
re-examination.
E Or. XXX r. 10- Suit against person carrying on business
in name other than his own - Held: Is an enabling provision
- It provides that a person carrying on business in a name or
· style other than his own name may be sued in such name or
style as if it were a firm name - As a necessary corollary, the
F said provision does not enable a person carrying on business
in a name or style other than in his own name to sue in such
name or style.
Or. XX r 1 - Matter fixed for pronouncement of judgment
- Plea that plaintiff not arguing the matter as required by Or.
G XX r. 1 - Effect of, on the decision of the suit - Held: The
plaintiffs had already advanced the arguments and the
judgment was reserved and kept for pronouncement -
Judgment could not he pronounced on that day and the
matter, thereafter, was fixed on various dates on the diverse
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 114.5
M.S.S. FOOD PRODUCTS
applications made by the defendants - It cannot be said that A
the trial judge ought to have dismissed the suit.
Interlocutory applications - Contentions raised by the
defendants not considered by the High Court - Challenge
made to the orders passed by the trial court on the 8
interlocutory applications before this Court and arguing that
trial court erred in not adhering to the pre-trial procedures -
Permissibility of - Held: Not permissible - The proper course
available to the appellants was to bring to the notice of th~
High Court the aspect by filing a review application - Such C
course was never adopted.
Evidence - Secondary evidence - Trial court granting
plaintiff to lead secondary evidence - Correctness of - Held:
Trial court did not commit any error in permitting the plaintiff
to lead secondary evidence when the original assignment D
deed was reportedly lost.
Administrative law - Doctrine of proportionality -
Applicability of - To civil disputes' governed by the Code of
Civil Procedure '- Held: Is not necessary - Code is E
comprehensive and exhaustive in respect of the matters
provided therein - Parties must abide by the procedure
prescribed therein which is extremely rational, reasonable and
elaborate - Where the Code is silent, the court acts according
to justice, equity and good conscience - If the trial court F
. commits illegality or irregularity in exercise of its judicial
discretion, such order is always amenable to correction by a
higher court in appeal or revision or by a High Court in its ·
supervisory jurisdiction.
Respondent-plaintiff filed a suit against the G
appellants-defendants before the Additional District
Judge for passing off action, declaration and injunction
a~ also filed an application for temporary injunction. An
ad interim ex parte injunction was granted in favour of the
plaintiff. Thereafter, the same was made absolute till the H
1146 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A disposal of the suit. The defendant then filed an appeal.
The High Court while dismissing the appeal directed the
trial court to conclude the trial of the suit expeditiously
and dispose it of within the stipulated period. Aggrieved,
the defendants filed Special Leave Petition before this
B Court challenging the order of temporary injunction
granted by the trial court and upheld in appeal by the
High Court. During the course of proceedings in the suit
many interlocutory applications were filed by the
defendants and the plaintiff. This Court dismissed
c defendants' appeal, directing the trial court to comply
with the direction of the High Court and complete ti1e trial
and disposal of the suit within six months from that date.
However, the defendants continued to make application
after application stalling the effort of the trial court in that
direction. On February 28, 2005, the trial court rejected
0
the defendants' applications and asked the advocate for
the defendants to cross-examine plaintiff's witnesses.
The advocate for the defendants stated that he had no
authority to cross-examine plaintiff's witnesses; and he
is not in position to do anything and the court may do
E whatever it wanted. The trial court closed the defendants'
right to cross-examine the plaintiff's witnesses and fixed
the matter for March 17, 2~05. On that date, nobody
appeared on behalf of the defendants and the matter was
directed to proceed ex parte. The plaintiff closed the
F evidence and the trial court heard the arguments of the
plaintiff and reserved the judgment and fixed the matter
for March 28, 2005 for pronouncement of judgment. It
appears that later on the advocate for the defendants
appeared on that date and signed the order sheet.
G Thereafter, the arguments were heard. Though the matter
was fixed for pronouncement of judgment on March 28,
2005, meanwhile, the defendants moved an application
for setting aside the ex parte order. Even thereafter the
defendants continued to make applications. The
" H judgment was not pronounced on the date fixed or
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1147
M.S.S. FOOD PRODUCTS
immediately thereafter. The Presiding Officer who had A
heard the arguments got transferred and the new
Presiding Officer assumed the charge. Even thereafter
the defendants kept on making application after
application and the same were dismissed~ Thereafter, the
trial court decreed the plaintiff's suit. The defendants filed B
an appeal against ex parte decree. The Division Bench
of the High Court dismissed the appeal except the relief
in respect of profits relating to damages. Therefore, the
defendants filed the instant appeal.
Dismissing the appeal, the Court c
HELD: 1.1 Order XX Rule 1 of the Code of the Civil
Procedure, 1908 provides that the court, after the case
has been heard, shall pronounce the judgment in an open
court either at once or on some future date after fixing a 0
day for that purpose of which due notice shall be given
to the parties or their pleaders. The hearing of a suit
begins on production of evidence by the parties and suit
gets culminated on pronouncement of the judgment.
. Under Order XVIII Rule 1 of the Code, the pla-intiff has a · E
right to begin unless the defendant admits the facts
alleged by the plaintiff and contends that either in point
of law or on some additional facts alleged by him the
plaintiff is not entitled to any part of the relief which he
seeks, in which case the defendant has the right to begin. F
On the day fixed for the hearing of the suit or any other
day to which the hearing is adjourned, as per the
provisions contained in Order XVIII Rule 2, party having
the right to begin is required to state his case and
produce his evidence in support of issues which he is
bound to prove. Under Or(:ler XVIII, Rule 2 sub-rule (2), the G
other party shall then state his case and produce his
evidence. Under sub-rule (3A) of Rule 2 of Order XVIII, the
parties in suit may address oral arguments in a case and
may also avail opportunity of filing written arguments
before conclusion of oral arguments. Rule 15 of Order H
1148 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A XVIII provides for the contingency where the Judge
before whom the hearing of the suit has begun is
prevented by death, transfer or other cause from
concluding the trial of a suit. This provision enables the
successor Judge to proceed from the sta']e at which his
B predecessor left the suit. The provision contained in Rule
15 of Order XVIII of the Code is a special provision. The
idea behind this provision is to obviate re-recording of the
evidence or re-hearing of the suit where a Judge is
prevented by death, transfer or other cause from
C concluding the trial of a suit and to take the suit forward
from the stage the predecessor Judge left the matter. The
trial of a suit is a long drawn process and in the course
of trial, the Judge may get transferred; he may retire or
in an unfortunate event like death, he may not be in a
position to conclude the trial. The Code has taken care
0
by this provision that in such event the progress that has
already taken place in the hearing of the suit is not set at
naught. This provision comes into play in various
situations such as where part of the evidence of a party
has been recorded in a suit or where the evidence of the
E parties is closed and the suit is ripe for oral arguments
or where the evidence of the parties has been recorded
and the Judge has also heard the oral arguments of the
parties and fixed the matter for pronouncement of
judgment. The expression "from the stage at which his
F predecessor left it" is wide and comprehensive enough
to take in its fold all situations and stages of the suit. No
category or exception deserves to be carved out while
giving full play to Rule 15 of Order XVIII of the Code which
amply empowers the successor Judge to proceed with
G the suit from the stage at which his predecessor left it.
[Para 25] [1170-E-H; 1171-A-G] .
Gu//apalli Nageswara Rao and Ors. v. Andhra Pradesh
State Road Transporl Corporation and Anr. (1959) Supp 1
H SCR 319 - referred to.
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1149
M.S.S. FOOD PRODUCTS
1.2. The principle that one who hears must decide the A
~ase, with reference to hearing by a quasi judicial forum
is not applicable to all situations in the hearing of the suit.
"Hearing of the suit" as understood is not confined to oral
hearing. Hearing of the suit begins when the evidence in
the suit begins and is concluded by the pronouncement B
of judgment. The Code contemplates that at various
stages of the hearing of the suit, the Judge may change
or he may be prevented from concluding the trial and in
that situation, the successor Judge must proceed in the
suit. from the stage the predecessor Judge has left it. c
(Para 27] (1172-0-F]
American Baptist Foreign Mission Society, by its Attorney
Rev. W.L. Ferguson, Jaladi Ayyappaseti and Anr. and
Gurram Seshiah and Anr. v. Amalanadhuni Pattabhiramayya
and Ors. 48 Ind. Cas.859 - referred to. D
1.3. Order XVIII Rule 2 of the Code gives an option
to the parties to argue their case when the evidence is
conducted and it is for them to decide whether they would
avail themselves of this privilege and if they do not, they E
do so at their peril. In the instant case, the right of the
appellants-defendants to cross-examine respondent-
plaintiff was closed on February 28, 2005. The matter was
then fixed for March 17, 2005 for the remaining evidence
of the respondent. On that day, none appeared for the
defendants although the matter was called out twice. In F
that situation, the Judge ordered the suit to proceed ex
parte against the defendants; heard the arguments of the
plaintiff and closed the suit for pronouncement of
judgment on March 28, 2005. In these facts, the
defendants, having lost their privilege of cross-examining G
the respondent's witnesses and of advancing oral
arguments, now cannot be permitted to raise any
grievance that the successor Judge who delivered the
judgment did not given them an opportunity of oral
arguments. [Para 30] (1175-E-H; 1176-A] H
1150 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A Harji Mal and Anr. v. Devi Ditta Mal and Ors. AIR (1924)
Lah 107 - approved.
1.4. The expressions "state his case", "produce his
evidence" and "address the court generally on the whole
case" occurring in Order XVIII Rule 2, sub-rule (1) and (2)
8
have different meaning and connotation. By use of the
expression "state his case", the party before production
of his evidence is accorded an opportunity to give
general outlines of the case and also indicate generally
the nature of evidence likely to be let in by him to prove
C his case. The general outline by a party before letting in
evidence is intended to help the court in understanding
the evidence likely to be followed by a party in support
of his case. After case is stated by a party, the evidence
is produced by him to prove his case. After evidence has
D been produced by all the parties, a right is given to the
parties to make oral arguments and also submit written
submissions, if they so desire. The hearing of a suit does
not mean oral arguments alone but it comprehends both
production of evidence and arguments. The scheme of
E the Code, as embodied, in Order XVIII Rule 2, particularly,
sub-rules (1 ), (2), (3) and (3A) and Rule 15 enables the
successor Judge to deliver the judgment without oral
arguments where one party has already lost his right of
making oral arguments and the other party does not
F insist on it. It cannot be said that the trial court violated
the fundamental principle of law, i.e. "one whoihears must
decide the case". [Paras 31 and 32] [1176-8-G]
2.1. In the first place, once the hearing of the suit is
concluded; and the suit is closed for judgment, Order IX
G Rule 7 of the Code has no application at all. The very
language of Order IX Rule 7 makes this c!ear. This
provision pre-supposes the suit having been adjourned
for hearing. The courts, number of times have said that
adjournment for the purposes of pronouncing judgment
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1151
M.S.S, FOOD PRODUCTS
is no adjournment of the "hearing of the suit". In the. A
, instant case, the trial court on March 17, 2005, did four
things, namely, closed the evidence of the plaintiff as was
requested by the plaintiff; ordered the suit to proceed ex
parte as defendants failed to appear on that date; heard
the arguments of the Advocate for the plaintiff; and kept B
the matter for pronouncement of judgment on March 28,
2005. Thus, Order IX Rule 7 of the Code has no
application at all and that the application made by the
defendants under this provision was rejected by the trial
court. Secondly, once the suit is closed for c
pronouncement of judgment, there is no question of
further proceedings in the suit. Merely, because the
defendants continued to make application after
application and the trial court heard those applications,
it cannot be said that such appearance by the D
defendants is covered by the expression "appeared on
the day fixed for his appearance" occurring in Order IX
Rule 7 of the Code and thereby entitling them to address
the court on the merits of the case. (Paras 34 and 35]
(1177-D-H; 1178-A-B]
E
2.2. There is no quarrel to the legal position that if a
party appears before the case is actually heard and if he
has otherwise not disqualified himself from being heard,
he has a right to be heard as also the general
observations made in Kashirao Panduji that the F
provisions of Order 9 are never meant to be penal
provisions, and it is only in clear cases of gross
negligence and misconduct that a party should be
deprived of the opportunity of having a satisfactory .
disposal of the case which evidently can only be done G
when both parties have full opportunity of placing their
case and their evidence before the Co~rt but each case
has to be seen in its own facts. In the ihstant case, the
_High· Court in its order dated May 11, 2004 while
dismissing the defendants' appeal directed the trial. court H
1152 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A to conclude the trial of the suit expeditiously and finally
dispose of it, preferably within the stipulated period.
Unfortunately, the suit could not be disposed of by the
trial court as directed by the High Court. This Court while
dismissing the defendants' appeal arising from the High
B Court's order, directed the trial court to comply with the
direction of the High Court and complete the trial and
dispose of the suit within six months from that date; In
complete disregard of the said direction, the defendants
continued to make application after application. Nine
c interlocutory applications were filed by the defendants
after the hearing of the suit was expedited by the High
Court and the order of this Court reiterating the
expeditious disposal of the suit. After the direction was
issued by this Court, the trial court endeavoured to
dispose of the suit speedily but the defendants continued
0
to make application after application. It was in this
backdrop that on February 28, 2005, the trial court
rejected the defendants' applications and asked the
Advocate for the defendants to cross-examine plaintiff's
witnesses. On that date, the Advocate for the defendants
E stated that he had no authority to cross-examine plaintiff's
witnesses; and he is not in position to do anything and
the court may do whatever it wants. Thus, the trial court
closed the defendants' right to cross-examine the three
witnesses of the plaintiff and as regards remaining
F witnesses of the plaintiff, the trial court fixed the matter
for the next date on which nobody appeared on behalf
of the defendants although the matter was called twice.
It was then that the trial court directed the matter to be
proceeded ex parte. The plaintiff closed its evidence and
G the trial court heard the arguments of the plaintiff ex-parte
and closed the suit for pronouncement of judgment.
Thus, the defendants forfeited their right to address the
trial court on merits. The course adopted by the trial court
is permissible in law. In a situation like this where the
H plaintiff closed his evidence and the defendants failed to
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1153
M.S.S. FOOD PRODUCTS
appear, Order XVII Rule 2 was clearly attracted, in view A
of Order XVII Rule 2, the trial court was required tc:r
proceed to dispose of the suit in one of the modes
prescribed in Order IX. [Paras 37, 40] [1179-A-G; 1180-A-
B; 1181-E]
8
Radhabai Bhaskar Sakharam v. Anant Pandurang
Pandit and Anr. AIR (1922) Born 345; Kashirao Panduji v.
Ramchandra Bataji AIR (35) 1948 Nag 362 - referred to.
3. Order IX Rule 6 (1)(a) lays down the procedure
0
where after due service of summons, the defendant does C
not appear when the suit is called on for hearing. In that
situation, the court may make an order that suit shall be
heard ex parte. In the instant case, the trial court cannot
be said to have committed any error in ordering the suit
to proceed ex parte; hearing the arguments and closing D
the suit for pronouncement of judgment. What is
provided by Rule 6 is that each case fixed for any day
shall be entered in advance immediately upon a date or
adjourned date being fixed and such entry would show
the purpose fo~ which it is set down on each date. The E
cases should be classified in such a manner as to show
at a glance the nature of work fixed for the particular date.
Rule 6 basically provides for a procedure which is
required to be followed in maintaining the register for the
purpose of the dates fixed in the matter and the purpose F
for which the date has been fixed. The said provision
does not in any way impinge upon the power of the court
to proceed fdr disposal of the suit in case both the parties
or either of the parties fail to appaar as provided in Order
IX of the Code. [Paras 40, 42] [1181-F; 1183-E-H; 1184-A] G
Sahara India and Ors.· v. M. C. Aggawal HUF (2007) 11
SCC 800: 2007 (2) SCR 1037 - distinguished.
Arjun Singh v. Mohindra Kumar and Ors. (1964) 5 SCR
946 - relied on. H
1154 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 4. In the counter affidavit filed by the respondent-
plaintiff, nothing was said about the statement made in
the synopsis. However, in case the contentions raised by
the appellants-defendants were not considered by the
High Court, the proper course available to the appellants
s was to bring to the notice of the High Court the aspect
by filing a review application. Such course was never
adopted. Thus, the appellants cannot be permitted to
challenge the orders passed by the trial court on the
interlocutory applications now and argue that trial court
c erred in not adhering to the pre-trial procedures. [Para 46)
[1186-C-E]
5. The trial court cannot' be said to have erred in
permitting the plaintiff to lead secondary evidence when
the original assignment deed was reportedly lost. [Para
D 47) [1186-G]
6.1. The purpose and objective of Rule 4 of Order XVIII
of the Code is speedy trial of the case and to save
precious time of the court as the examination-in-chief of
E a witness is now mandated to be made on affidavit with
a copy thereof to be supplied to the opposite party. The
provision makes it clear that cross-examination and re-
examination of witness shall be taken either by the court
or by Commissioner appointed by it. Proviso appended
F to sub-rule (1) of Rule 4 of Order XVIII further clarifies that
where documents are filed and the parties rely upon the
documents, the proof and admissibility of such
documents which are filed along with the affidavit shall
be subject to the order of the court. In a case in which
G . appeal is allowed, Rule 5 of Order XVIII provides that the
evidence of each witness shall be taken down in writing
by or in the presence and under the personal direction
and superintendence of the Judge or from the .dictation
of the Judge directly on a typewriter or recorded
H mechanically in the presence of the Judge if the Judge
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1155
M.S.S. FOOD PRODUCTS
so directs for reasons to be recorded in writing. [Para 51] A
[1189-G-H; 1190-A-C]
6.2. There is no requirement in Order XVIII Rule 5 that
in appealable cases, the witness must enter the witness
box for production of his affidavit and formally prove the 8
affidavit. As it is such witness is required to enter the
witness box in his cross-examination and, if necessary,
re-examination. Since a witness who has given his
examination-in-chief in the form of affidavit has to make
himself available for cross-examination in the witness
box, unless defendant's right to cross examine him has
c
been closed, such evidence (examination-in-chief) does
not cease to be legal evidence. [Para 57] [1196-G-H; 1197-
A]
6.3. In the instant case, the three witnesses whose D
examination-in-chief was tendered by the plaintiff in the
form of affidavits were present for cross-examination but
despite the opportunity given to the defendants, they
chose not to cross-examine them and thereby the trial
court closed the defendants' right to cross-examine E
these witnesses. Thus, it cannot be said that any
prejudice was caused to the defendants if these three
witnesses did not enter the witness box. [Para 58] [1197-
8-C]
F
F.D.C. Limited v. Federation of Medical Representatives
Association India & Ors. AIR 2003 Born 371; Ameer Trading
Corpn. Ltd. v. Shapoorji Data Processing Ltd. (2004) 1 SCC
702: 2003 (5) Suppl. SCR 634; Laxman Das v. Deoji Mal &
Ors. AIR 2003 Rajasthan 74 - referred to.
G
7.1. Order XXX Rule 10 is an enabling provision
which provides that a person carrying on business in a
name or style other than his own name may be sued in
such name or style as if it were a firm name. As a
necessary corollary, the provision does not enable a H
1156 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A . person carrying on business in a name or style other
than in his own name to sue in such name or style.[Para
61] [1197-G-H; 1198-A]
7.2. The description of the plaintiff in the plaint at best
8 may be called to be not in proper order inasmuch as the
name of 'NV' must have preceded the business name in
the cause title. This was not an illegality which goes to
the root of the matter. Moreover, the defendants did file
an application under Order XXX Rule 10 of the Code
C before the trial court but that came to be rejected. The
said order was challenged at interlocutory stage and the
matter ultimately reached this Court. This Court refused
to interfere with the order but gave liberty to the
defendants to challenge the same in the first appeal, if
aggrieved by the judgment and decree. Even after
D rejection of the application under Order XXX Rule 10 of
the Code by the trial court, the defendants yet attempted
to raise the same controversy by mak~ng an application
for amendment in the written statement but that too was
dismissed. This order was also challenged at
E interlocutory stage by the defendants but the said order
was not interfered with by the High Court and this Court
and liberty was granted to the defendants to challenge
the same in the first appeal against the final judgment and
decree. However, from the perusal of the judgment of the
F High Court, it appears that no argument was advanced
with regard to correctness of these two orders. [Para 63]
[1198-C-G]
Bhagvan Manaji Marwadi & Ors. v. Hiraji Premaji
G Marwadi AIR 1932 Born 516 - referred to.
8. The defendants did not cross-examine the
plaintiff's witnesses despite opportunity having been
granted to them. There could have been some merit in the
submissions, had the defendants cross-examined the
H plaintiff's witnesses on these aspects. But, unfortunately,
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1157
M.S.S. FOOD PRODUCTS
they did·· not avail of that opportunity. In the A
circumstances, if the trial court and the High Court
accepted the plaintiff's evidence which remained un-
rebutted and unchallenged and also relied upon the
documents produced by the plaintiff, it cannot be said
that" any illegality was committed by the trial c.ourt in s
decreeing plaintiff's suit or any illegality was committed
by the High Court in dismissing the first appeal. [Para 65)
[1200-A-C]
Gopal Krishnaji Ketkar v. Mahomed Haji Latif and Ors.
AIR 1968 SC 1413: 1968 SCR 862 - referred to. c
9. The matter was fixed for pronouncement of
judgment on March 28, 2005. The judgment could not be
pronounced on that day and the. matter, thereafter, was
fixed on various dates on the diverse applications made D
by the defendants. In the meanwhile, the Presiding
Officer who heard the arguments of the plaintiff and kept
the judgment reserved got transferred and new
Presiding Officer assumed the office. In the facts and
circumstances of the case, on transfer of the E
predecessor Judge who heard the arguments, it was not
incumbent upon the successor Judge to hear the
arguments of the defendants. The proceedings reveal
that ultimately the matter was kept for pronouncement of
judgment on March 7, 2007. On that day, the court F
disposed of various applications made by the
defendants and pronounced the judgment. The order
sheet of March 7, 2007 did record that the plaintiff's
advocate expressed that he did not want to address any
arguments. This statement is in the context of not
advancing further arguments as on behalf of the plaintiff, G
the arguments had already been advanced; thejudgment
was reserved and kept for pronouncement. [Para 66]
[1200-E-H; 1201-A] .
10. The doctrine of proportionality has been H
1158 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A expanded in recent times and applied to the areas other
than administrative law. However, its applicability to the
adjudicatory process for determination of 'civil disputes'
governed by the procedure prescribed in the Code is not
at all necessary. The Code is comprehensive and
B exhaustive in respect of the matters provided therein. The
parties must abide by the procedure prescribed in the
Code and if they fail to do so, they have to suffer the
consequences. As a matter of fact, the procedure
provided in the Code for trial of the suits is extremely
c rational, reasonable and elaborate. Fair procedure is its
hallmark. The courts of civil judicature also have to adhere
to the procedure prescribed in the Code and where the
Code is silent about something, the court acts according
to justice, equity and good conscience. The discretion
0 conferred upon the court by the Code has to be exercised
in conformity with settled judicial principles and not in a
whimsical or arbitrary or capricious manner. If the trial
court commits illegality or irregularity in exercise of its
judicial discretion that occasions in failure of justice or
E results in injustice, such order is always amenable to
correction by a higher court in appeal or revision or by a
High Court in its supervisory jurisdiction. Having regard
to the facts of the instant case, it cannot be said that the
trial court acted illegally or with material irregularity or
irrationally or in an arbitrary manner in passing the orders
F dated February 28, 2005 closing the right of the
defendants to cross-examine plaintiff's witnesses and
March 17, 2005. The defendants by their conduct and
tactics disentitled themselves from any further
indulgence by the trial court. The course adopted by the
G trial court cannot be said to be unfair or inconsistent with
the provisions of the Code. [Para 70] [1202-F-H; 1203-A-
D]
Kunhayammed and Ors. v. State of Kera/a and Anr.
H (2000) 6 SCC 359: 2000 (1) Suppl. SCR 538 - referred to.
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1159
M.S.S. FOOD PRODUCTS
Case Law Reference: A
2000 (1) Suppl. SCR 538 Referred to. Para 21
(1959) Supp 1 SCR 319 Referred to. Para 26
48 Ind. Cas.859 Referred to. Para 28
B
AIR (1924) Lah 107 Approved. Para 29
AIR (1922) Born 345 Referred. to. Para 35
AIR (35) 1948 Nag 362 Referred to. Para 36
c
(1964) 5 SCR 946 Referred to. Para 40, 41
2007 (2 ) SCR 1037 Distinguished. Para 43
AIR 2003 Born 371 Referred to. Para 52, 57
2003 (5 ) Suppl. SCR 634 Referred to. Para 52, t;5, D
57
AIR 2003 Rajasthan 74 Referred to. Para 57
AIR 1932 Born 516 Referred to. Para 63
E
1968 SCR 862 Referred to. Para 64
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10112 of 2011.
From the Judgment & Order dated 13.8.2008 of the High F
Court of Judicature of Madhya Pradesh at Indore in First Appeal
No. 217 of 2007.
Shekhar Naphade, Pravin H. Parekh, Sameer Parekh, Lalit
Chuhan, Ashish Jha, Rohit Gupta, Vivek Dalal, Jayant Mohan, G
Ranjeeta Rohtagi, Subhash Jadhav, K. Shashank, S. Goud (for
"Coac"), for the Appellant.
Dr. A.M. Singhvi, Mukul Rohatgi, Vikas Singh, Sanjeev
Sachdeva, P.K. Saxena, Amit Bhandari, Preet Pal Singh, Vivek
H
1160 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Gautam, Shiv Prakash Pandey, Shiva Laxmi, Gopal Singh
Chauhan for the Respondent.
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Leave granted.
B
2. This appeal, by special leave, raises questions of legality
of an ex parte decree passed by the trial court and affirmed in
first appeal by the High Court of Madhya Pradesh.
c 3. M/s. M.S.S. Food Products-respondent (hereinafter
referred to as 'plaintiff') sued the appellants-(i) Dhariwal
Industries Ltd. and (ii) Rasiklal Manikchand Dhariwal
(hereinafter referred to as 'defendants') in the court of 1st
Additional District Judge, Mandaleshwar (West) Madhya
Pradesh for declaration that defendants do not have right to use
0
the mark "Manikchand" to sell masala, gutka, supari, supari mix
or any other goods which is deceptively similar to the mark
"Malikchand'; for perpetual injunction restraining the defendants
from tjealing in or selling the above articles under the name/
E brand "Manikchand"; for rendition of the accounts of profits
earned by the defendants by selling the said goods and other
consequential reliefs.
4. The case of the plaintiff is this: Prabhudayal Choubey
son of Ramprasad alias Malikchand started the business of
F supari, ayurvedic pan masala and ayurvedic medicines in the
brand name "Malikchand" in the year 1959-60. He continued
his business upto April 1986. Prabhudayal Choubey assigned
his trade mark of supari and ayurvedic pan masala
"Malikchand" to his son Ashok Sharma sometime in the month
G of April, 1986. Ashok Sharma continued his business of supari,
ayurvedic pan masala and ayurvedic medicines etc. upto March
1992. Ashok Sharma assigned the trade mark "Malikchand",
vide assignment deed dated April 1, 1992, to Kish ore
Vadhwani, proprietor of M/s. Tulsi Stores who continued with
H the business of pan masala, gutka, supari and supari mix etc.
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1161
M.S.S. FOOD PRODUCTS[R.M .. LODHA, J.]
till March, 1996. Kishore Vadhw<lni further assigned the trade A
mark "Malikchand" to the plaintiff on April 1, 1996. Since then
plaintiff has been carrying on the business of gutka, pan masala,
mix supari etc. in the trade mark "Malikchand".
5. It is further case of the plaintiff that the defendants have
8
started selling gutka, pan masala, supari, supari mix, zarda,
etc. in the name of "Manikchand", - phonetically similar to the
plaintiffs mark "Malikchand" - and thereby passing off their
goods as and for plaintiffs goods. The plaintiff alleged that
defendants have been selling the inferior quality goods resulting C
in huge losses to it.
6. The defendants filed written statement and traversed
plaintiffs claim. They disputed plaintiffs claim of prior user arid
averred that name of Prabhudayal's father was Ramprasad
and not Malikchand. They denied that any business was run by D
Prabhudayal Choubey in the name of "Malikchand". On the
other hand, the defendants claimed that way back in 1966, an
application for registration of trade mark "Manikchand" was
submitted as the name of Defendant No. 2's father was
Manikchand and they have been doing their business of supari,. E
gutka, tobacco, etc. in the name of "Manikchand". It is the case
of the defendants that the plaintiff started running business of
gutka, using .the name "Malikchand" identical to the trade name
of the defendants "Manikchand" wrongly and fraudulently with
an intention to ride on the goodwill of the defendants and to F
protect their right, the defendants have filed a suit (Suit No. 574
of 2004) in the Bombay High Court wherein plaintiffs counsel
appeared on March 10, 2004. As regards the documents
concerning prior user of the trade name "Malikchand" by the
plaintiff, the defendants averred that the plaintiff has fabricated G
and forged these documents and then filed the suit for passing
off action, declaration and injunction. The defendants, thus,
prayed that plaintiff's suit was liable to be dismissed.
7. The trial court having regard to the pleadings of the
H
1162 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A parties, on December 6, 2004, initially framed the following
eight issues :
"1. Whether the plaintiff has been running his business
of Food, Pan Masala, Supari Mix by the name of
Mailkchand from the year 1959-60?
8
2. Whether the defendants have been running the
said business by the name of "Manikchand"
trademark identical to trademark of plaintiff i.e.
"Malikchand"? If yes then its effect?
c ..
3. Whether the defendants have been selling the
goods having prepared of inferior quality by the
name of Manikchand trademark identical to the
trademark of plaintiff "Malikchand" due to which
credit of plaintiff is being adversely affected? If yes,
D
then its effect?
4. Whether defendants have been running their
business from the year 1960 having lawfully
obtained the trademark "Manikchand" from the
E . competent officer? If yes, then its effect?
5, Whether the plaintiff is entitled to get the accounts
of the said amount which defendants have earned
unlawful profits having sold the pouch by the name
F of Manikchand trademark identical to the trademark
of plaintiff?
6. (a) Whether plaintiff valued the suit properly?
6. (b) Whether the plaintiff has paid the sufficient
G court fee?
7 Whether the plaintiff has instituted the suit on false
grounds? If yes, then whether the defendants are
entitled to get special damages for the plaintiff?
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1163
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
8 Relief & cost?" A
8. Then, on December 24, 2004, the following two
additional issues were framed by the trial court:
"9. Whether the suit instituted by the plaintiff is liable
to be stayed under Section 10 C.P.C. B
10. Whether this court has got the jurisdiction to
entertain the present suit instituted by the plaintiff?"
9. Along with the plaint, the plaintiff made an application
for temporary injunction pending suit, restraining the defendants C
from selling their products under the name 'Manikchand'.
10. On March 16, 2004, an ad interim ex parte injunction
restraining the defendants from using the mark 'Manikchand'
was granted by the trial court in favour of the plaintiff and against D
the defendants. The appeal preferred by the defendants against
that order was disposed of by the High Court on March 22,
2004. On April 6, 2004, the trial court allowed the plaintiffs
application for temporary injunction and made the ad interim
ex parte injunction order dated March 16, 2004 absolute to E
remain operative till the disposal of the suit. The appeal
preferred by the defendants against that order was dismissed
by the High Court on May 11, 2004. The High Court while
dismissing the defendants' appeal directed the trial court to
conclude the trial of the suit expeditiously and finally dispose F
of it, preferably within a period of six months from the date of
receipt of the copy of the order i.e. May 11, 2004.
11. The defendants challenged the order of temporary
injunction passed by the trial court and affirmed in appeal by
the High Court in a special leave petition before this Court on G
July 20, 2004.
12. In the course of proceedings in the suit many
interlocutory applications were made by the defendants and few
by the plaintiff. Some of these applications are: On June 14, H
1164 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
·A 2004, an application (I.A. No. 9) was made by the defendants
before the trial court under Order VII Rule 11 of the Civil
Procedure Code, 1908 (for short, 'the Code') for rejection of
the plaint. On August 19, 2004, the defendants made another
application (I.A. No. 10) under Section 151 of the Code for
directing the parties to file respective original documents. On
8
September 10, 2004, the defendants filed an application (IA
No. 11) under Order XXX Rule 10 of the Code for dismissal of
suit as the same was filed in the name of a proprietorship firm.
On December 6, 2004, the defendants moved an application
C (IA No. 14) for discovery and production of documents under
Order XI Rules 12 and 14 of the Code. On January 5, 2005,
the defendants made an application (IA No. 20) under Order
VI Rule 17 for the amendment of the written statement. On
January 19, 2005, the plaintiff filed an application (IA No. 21)
for summoning of the witnesses and on January 20, 2005, the
D plaintiff made an application for permission to file photocopies
of the original documents and (I.A.No. 22) for leading secondary
evidence. On January 24, 2005, the plaintiff made an
application for production of additional documents. The
defendants responded to these applications. On February 8,
E 2005, the plaintiff made application (IA No. 26) under Section
152 of the Code. On February 15, 2005, the defendants made
three applications, namely, I.A. No. 27 for summoning
documents under Order XVI Rules 1 and 6 of the Code; IA No.
28 for inspection of documents under Order XI Rule 14 read
F with Section 151 of the Code and IA No. 29 for production of
documents on oath. On that day, plaintiff also made an
application under Order VII Rule 14(3) of the Code for filing
additional documents.
G 13. Pertinently, all the applications made by the defendants
such as amendment of written statement; for leave to deliver
interrogatories and discovery and production of documents;
dismissal of suit under Order XXX Rul.e 10 of the Code; for
summoning of documents etc., were dismissed by the trial court.
H
RASIKLAL MANICKCHAND DHARlWAL & ANR. v. 1165
M.S.S. FOOD PRODUCTS [R.M. LOOHA, J,] ·
14. On February 25, 2005 this· Court dismissed A
defendants' appeal arising from the order of temporary .·
injunction granted by the trial court and affirmed in appeal by
the High Court. While dismissing the special leave petition, this
Court directed the trial court to comply with the direction of the
High Court and complete the trial and disposal of the suit within 8
six months from that date.
15. In terms of the order of the High Court and subsequent
order of this Court, the suit was required to be disposed of by
the trial court expeditiously and the trial court endeavoured to
proceed accordingly, but the defendants continued to make· C
application after application stalling the effort of the trial court
in that direction. We shall refer to the proceedings appropriately
while considering the arguments of the learned Senior Counsel
for the appellants. Suffice it to state here that on February 28,
2005, the trial court closed the defendants' right to cross- D
examine the plaintiffs witnesses. The matter was then fixed for
March 17, 2005. On that date, nobody appeared on behalf of
the defendants and the matter was directed to proceed ex
parte. The plaintiff closed the evidence and the trial court heard
the arguments of the plaintiff and reserved the judgment and E
fixed the matter for March 28, 2005 for pronouncement of
judgment. It appears that later on the Advocate for the
defendants appeared on that date and signed the order sheet.
16. After the arguments were heard on March 17, 2005 F
and although the matter was fixed for pronouncement of
judgment on March 28, 2005, on behalf of the defendants, an
application was made on March 21, 2005 for setting aside the
ex parte order. The defendants continued to make applications
even thereafter. The judgment was not pronounced on March
28, 2005 or immediately thereafter. G
17. Then, it so happened that the Presiding Officer who
heard the arguments got transferred and the new Presiding
Officer assumed charge on August 28, 2006. Even thereafter
the defendants kept on making application after application. H.
1166 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A The trial court heard arguments on those applications and all
these applications were dismissed. The trial court pronounced
the judgment on March 7, 2007 whereby plaintiff's suit was
decreed as follows :
"23. Consequently, finally having allowed the suit, decree
B has been issued that :-
(a) It has been declared that defendants do not have
any right to sell Supari, Pan Masala, Mixed Supari,
Gutka sell by packing in pouch under the name and
c trade mark "Manikchand".
(b) Defendants are hereby restrained by order of
permanent injunction from selling the pouch of
supari, pan masala and mix supari under the name
Manikchand and should not copy the colour screen
D
and design of "Manikchand" zarda pouch and
should not advertise or publish their pouch of supari,
pan masala, jarda under the trade mark
"Manikchand".
E (c) Defendants are hereby directed to submit the
accounts of the profits earned by them during the
period from 15.3.2001 to 15.3.2005 by selling the
supari, pan masala, gutka etc. under the
"Manikchand" within two months in this court.
F
(d) Defendants shall bear the cost of this suit of the
plaintiff."
18. Against the ex parle decree dated March 7, 2007, the
defendants preferred first appeal before the Madhya Pradesh
G High Court. The Division Bench of that Court vide its judgment
dated August 13, 2008 dismissed the defendants' first appeal
except the relief in respect of profits relating to damages. In
other words, the High Court maintained the judgment and
decree of the trial court insofar as reliefs granted in paragraph
H 23(a) and (b) were concerned but set aside the relief granted
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1167
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.)
to the plaintiff in paragraph 23(c) and instead awarded token A
relief of Rs. 11,00,000/- (Rupees Eleven Lakh) only. It is from
this judgment that the present special leave petition has arisen.
19. We heard Mr. Shekhar Naphade and Mr. Pravin H.
Parekh, Senior Advocates for the appellants at quite some
8
length. We also heard Dr. AM. Singhvi, Mr. Mukul Rohatgi and
Mr. Vikas Singh, Senior Advocates for the respondent. We also
permitted the parties to file their brief written submissions which
they did.
20. Mr. Shekhar Naphade, learned senior counsel for the C
appellants argued that the judgment passed by the Presiding
Officer of the trial court on March 7, 2007 and affirmed in appeal
by the High Court is a nullity having been delivered by a Judge
who never heard the matter. He submitted that the predecessor
Judge Smt. Bharati Baghel had recorded the evidence ex parte D
and heard advocate for the plaintiff on March 17, 2005;
reserved the judgment and fixed the date for pronouncement
of judgment but she never delivered the judgment. She was
transferred and the new Presiding Officer assumed charge on
August 28, 2006. The successor Presiding Officer though heard E
various applications made by the defendants but never heard
the parties insofar as suit was concerned and delivered the
judgment which apparently is not in conformity with the legal
mandate that one who hears the matter must decide the case.
In this regard, Mr. Naphade relied upon a decision of this Court F
in Gullapalli Nageswara Rao and Ors. v. Andhra Pradesh
State Road Transport Corporation and Anr. 1• He also referred
to Order XX Rule 1 of the Code and argued that this provision
requires the Judge to hear the parties and, thus, there was an
obligation on the Presiding Judge who delivered the judgment G
to have heard oral arguments of the parties. In support of his
submission, he relied upon a decision of Madras High Court
in the_ American Baptist Foreign Mission Society, by its
Attorney Rev. W.L. Ferguson, Jaladi Ayyappaseti and Anr.
1. (1959) Supp 1 SCR 319. H
1168 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A and Gurram Seshiah and Anr. v. Amalanadhuni
Pattabhiramayya and Ors. 2• Mr. Shekhar Naphade also argued
that Order XVIII Rule 15 of the Code has no application since
the defendants had appeared before the Trial Judge on March
17, 2005 itself after the matter was heard ex parte and reserved
B for the judgment thereafter and that entitled the defendants to
make oral arguments.
21. On the other hand, learned Senior Advocates for the
respondent heavily relied upon Order XVIII Rule 15 of the Code
C and submitted that the successor Judge has to proceed from
the stage the predecessor Judge had left the case and,
therefore, the successor Judge had jurisdiction to prepare and
deliver the judgment on the basis of the record of the case and
had no jurisdiction to fix the case again for arguments and set
the clock back to the pre-judgment stage. Reliance, in this
D regard, was placed on a decision of th~s_Court in Arjun Singh
v. Mahindra Kumar and Others3 . It was also- sl.rbmitted on
behalf of the respondent that from the two orders passed by
the trial court on February 28, 2005 and March 17, 2005, the
two special leave petitions (Special Leave Petition (Civil) Nos.
E 7339 of 2006 and 7340 of 2006) were filed which were
dismissed by this Court as withdrawn on December 1, 2006.
By that time, the Presiding Officer had already changed but this
Court did not remand the matter to the trial court for fresh
arguments and permitted the appellants to raise their plea in
F the first appeal which necessarily implied that the successor
Judge could proceed from the stage left by the predecessor
Judge i.e., pronounce the judgment. It was also submitted on
behalf of the respondent that appellants have not at all been
prejudiced as the High Court has considered the entire case
G of the appellants threadbare as was put forth in the course of
arguments. Moreover, the judgment and decree of the trial court
has now merged with the judgment of the High Court. In this
2. 48 Ind. Cas. 859.
H 3. (1964) 5 SCR 946.
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1169
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
regard, reliance was placed ori a decision of this Court in A
Kunhayammed and others v. State of Kera/a and another4.
22. Order XVIII Rule 2 of the Code provides as under :
"2. Statement and production of evidence.-(1) On
the day fixed for the hearing of the suit or on any B
other day to which the hearing is adjourned, the
party having the right to begin shall state his case
and produce his evidence in support of the issues
which he is bound to prove.
c
(2) The otnerparty shall then state his case and
produce his evidence (if any) and may then·
address the Court generally on the whole case.
(3) The party beginning may then reply generally on
the whole case. D
(3A) Any party may address oral arguments in a
case, and shall, before he concludes the oral
arguments, if any, submit if the Court so permits
concisely and under distinct headings written E
arguments in support of his case to the Court and
such written arguments shall form part of the record.
(38) A copy of such written arguments shall be
simultaneously furnished to the opposite party.
F
(3C) No adjournment shall be granted for the
purpose of filing the written arguments unless the
Court, for reasons to be recorded in writing,
considers it necessary to grant such adjournment.
G
(3D) The Court shall fix such time limits for the oral
arguments by either of the parties in a case, as it
thinks fit."
4. (2000) 6 sec 359. H
1170 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 23. Order XVIII Rule 15 of the Code is as follows:
"15. Power to deal with evidence taken before another
Judge.- (1) Where a Judge is prevented by death, transfer
or other cause from concluding the trial of a suit, his
successor may deal with any evidence or memorandum
B
taken down or made under the foregoing rules as if such
evidence or memorandum had been taken down or made
by him or under his direction under the said rule and may
proceed with the suit from the stage at which his
predecessor left it.
c
(2) The provisions of sub-rule (1) shall, so far as they are
applicable, be deemed to apply to evidence taken in a suit
transferred under section 24."
24. Order XX Rule 1 of the Code provides that the court,
0
after the case h~s been heard, shall pronounce the judgm~nt
in an open court either at once or on some future date after
fixing a day for that purpose of which due notice shall be given
to the parties or their pleaders.
E 25. The hearing of a suit begins on production of evidence
by the parties and suit gets culminated on pronouncement of
the judgment. Under Order XVIII Rule 1 of the Code, the plaintiff
has a right to begin unless the defendant admits the facts
alleged by the plaintiff and contends that either in point of law
F or on some additional facts alleged by him the plaintiff is not
entitled to any part of the relief which he seeks, in which case
the defendant has the right to begin. On the day fixed for the
hearing of the suit or any oth~r day to which the hearing is
adjourned, as per the provisions contained in Order XVIII Rule
G 2, party having the right to begin is required to state his case
and produce his evidence in support of issues which he is
bound to prove. Under Order XVIII, Rule 2 sub-rule (2), the other
party shall then state his case and produce his evidence. Under
sub-rule (3A) of Rule 2 of Order XVIII, the parties in suit may
H address oral arguments in a case and may also avail
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1171
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
opportunity of fiiing written arguments before conclusion of oral A
arguments. Rule 15 of Order XVIII provides for the contingency
where the Judge before whom the hearing of the suit has begun
is prevented by death, tr_ansfer or other cause from concluding
the trial of a suit. This provision enables the successor Judge
to proceed from the stage at which his predecessor left the suit. B
The provision contained in Rule 15 of Order XVIII of the Code
is a special provision. The idea behind this provision is to
obviate re-recording of the evidence or re-hearing of the suit
where a Judge is prevented by death, transfer or other cause
from concluding the trial of a suit and to take the suit forward c
from the stage the predecessor Judge left the matter. The trial
of a suit is a long drawn process and in the course of trial, the
Judge may get transferred; he may retire or in an unfortunate
event like death, he may not be in a position to conclude the
trial. The Code has taken care by this provision that in such D
event the progress that has already taken place in the hearing
of the suit is not set at naught. This provision comes into play
in various situations such as where part of the evidence of a
party has been recorded in a suit or where the evidence of the
parties is closed and the suit is ripe for oral arguments or E
where the evidence of the parties has been recorded and the
Judge has also heard the oral arguments of the parties and
fixed the matter for pronouncement of judgment. The
expression "from the stage at which his predecessor left it" is·
wide and comprehensive enough to take in its fold all situations
and stages of the suit. No category or exception deserves to F
be carved out while giving full play to Rule 15 of Order XVIII of
the Code which amply empowers the successor Judge to
proceed with the suit from the stage at which his predecessor
left it.
G
26. In Gullapalli Nageswara Rao and Ors. 1, this Court
stated the. principle that one who hears must decide the case.
The Court said :
"The second objection is that.:while the Act and the Rules H
1172 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A framed thereunder impose a duty on the State Government
to ~ive a personal hearing, the procedure prescribed by
the Rules impose a duty on the Secretary to hear and the
Chief Minister to decide. This divided responsibility is
destructive of the concept of judicial hearing. Such a
s procedure defeats the object of personal hearing. Personal
hearing enables the authority conperned to watch the
demeanour of the witnesses and clear-up his doubts
during the course of the arguments, and the party
appearing to persuade the authority by reasoned argument
c to accept his point of view. If one person hears and another
decides, then personal hearing becomes and empt~
formality. We therefore hold that the said procedure
followed in this case also offends another basic principle
of judicial procedure."
D 27. The above principle with reference to hearing by a
quasi judicial forum is not applicable to all situations in the
hearing of the suit. "Hearing of the suit" as understood is not
confined to oral hearing. "Hearing of the suit" begins when the
evidence in the suit begins and is concluded by the
E pronouncement of judgment. The Code contemplates that at
various stages of the hearing of the suit, the Judge may change
or he may be prevented from concluding the trial and in that
situation, the successor Judge must proceed in the suit from
the stage the predecessor Judge has left it.
F
28. Learned senior counsel for the appellants has placed
reliance on the decision of the Madras High Court in the case
of American Baptist Foreign Mission Society2 . The principle
of law in that case that a decree passed behind back of a legal
G representative of the deceased party is nullity has no
application to the facts of the present case. The facts in the
American Baptist Foreign Mission Society2 were peculiar.
That was a case where after evidence was let in on· April t9,
1916, the case was adjourned to April 26 for furtller arguments.
H On April 20, one of the defendants (14th_ defendant) died but
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1173
M.S.S. FOOD PRODUCTS [RM. LODHA, J.]
his legal representatives were not brought on record. The A
judgment was delivered on May 3, 1916. It was contended on
behalf of the legal representative of the deceased party before
the High Court that the decree passed behind her back after
her husband's death was without jurisdiction. The Madras High
Court upheld the argument. Referring to Rule 1 of Order XX, · B
the Madras High Court held that tne arguments should be heard
before the case can be regarded as ripe for judgment and in
the case before them before the conclusion of arguments, the
14th defendant had died and, thus, the case was not ripe for
judgment rendering the decree bad in law. We are afraid, the C
above decision of Madras High Coart has no application at all.
Order XVIII Rule 15 of the Code was not at all under
consideration before the Madras High Court.
29. A decision of the Lahore High Court, in the case of
Harji Mal and Anr. v. Devi Ditta Mal and Ors. 5 deserves to be D
noticed by us. In that case, in the second appeal before the
High Court, one of the contentions advanced by the appellants
was that the Senior Sub- Judge who disposed of the case and
wrote the judgment did not actually hear oral arguments
although written arguments were before him and, therefore, the E"
judgment was a nullity and the matter needed to be remanded
to the trial court. The facts in that case were these : the Sub-
Judge who heard tbe case fixed the 10th of November, for
arguments. On that date, an adjournment was sought by the
counsel who appeared. The Sub-Judge did not allow F
adjournment but directed them to file written arguments, if they
wished to do so. The written arguments were submitted. While
the matter was reserved for the judgment, the Sub-Judge
decided to inspect the spot but he could not carry out inspection
as he was transferred. The successor Judge took over and he G
inspected the spot and delivered the judgment. While dealing
with the argument, as noticed above, the Division Bench of the
Lahore High Court referred to Order XVIII Rule 2 of the Code
and noted that the said provision gave an option to the parties
5. AIR (1924) Lair to7. H
1174 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A to argue their case when their evidence was conducted and it
was for them to decide whether they would avail of this
privilege. The High Court held that it was for a party to argue
the case if they wished to do so and as they did not do so, the
only construction which can be put upon the events is that they
8 deliberately failed to avail themselves of such opportunity. The
judgment is in brief and to the extent it is relevant may be
reproduced :
"1. In this second appeal the first point raised by counsel
is that the Senior Sub-Judge who disposed of the case
c · and wrote the judgment did not actually hear oral
arguments although written arguments were before him,
and reliance has been placed on 57 l.C. 34 and 91 P.R.
1904, as authorities to show that under these
circumstances the judgment is a nullity and the case must
D be remanded to the trial court.
2. The facts are that Mr. Muhammad Shah, the Sub-JudgP-,
who heard the case fixed the 10th of November, for
arguments. On that date Counsel appeared and stated that
E they were not ready to argue and asked for an
adjournment, which he did not allow but directed them to
put in written arguments, if they wished to do so. They,
therefore failed to avail themselves of the opportunity given
them to argue the case before the Judge who had tried it.
Further adjournments were given for written arguments and
F
these were finally submitted on the 10th December. The
Sub-Judge then came to the conclusion that it was
necessary to inspect the spot, though what advantage
exactly was to be obtained from this inspection is not
clear. He was transferred before he carried out his
G inspection leaving the judgment unwritten and on the 22nd
of January the parties appeared before Mr. Strickland, his
successor, who fixed the 5th February for inspection. Later,
the counsel for the defendants, who are now the appellants,
appeared before him and asked for an adjournment which
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1175
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
he granted. He eventually carried out the inspection in the A
presence of the parties and then gave judgment. Now 91
P.R. 1904 is to be distinguished as being the case of a
first appeal and in 57 LC. 34 it is clear that the parties had
no opportunity to argue the case before the successor.
Here they had ample opportunity before both Sub-Judges. B
In Order 18, Rule 2, an option is given to the parties to
argue their case when the evidence is conducted and it is
for them to decide whether they will avail themselves of this
privilege. Here they were given a further opportunity at a
later date, the 10th November, and failed to make use of C
it It is contended that even so they were entitled to an
opportunity before the successor of Muhammad Shah who
was not in the same advantageous position as he was,
inasmuch .as he had not heard the evidence. Even so they .
certainly had more than one opportunity when they
appeared before Mr. Trickland. It was for them to argue D
the case if they wished to do so. They did not do so and
the only construction which can be put upon the events is
that they deliberately failed to avail themselves of such
opportunity and left the case in his hands knowing that the
written arguments were before him." E
30. We are in agreement with the view of the Lahore High
Court that Order XVIII Rule 2 of the Code gives an option to
the parties to argue their case when the evidence is conducted
and it is for them to decide whether they will avail themselves F
of this privilege and if they do not, they do so at their peril.
lrisofar as the case in hand is concernE1d, the right of the
defendants to cross-examine plaintiff wa~ closed on February
28, 2005. The matter was then fixed for M'arch 17, 2005 for the
remaining evidence of the plaintiff. On that day, none appeared G
for the defendants although the matter was called out twice. In
that situation, the Judge ordered the suit to proceed ex parte
against the defendants; heard the arguments of the plaintiff and
closed the suit for pronouncement of judgment on March 28,
2005. In these facts, the defendants, having lost their privilege H
1176 SUPREME COURT REPORTS [2011] 14 (ADDl.) S.C.R.
A of cross-examining the plaintiff's witnesses and of advancing
oral arguments, now cannot be permitted to raise any grievance
that the successor Judge who delivered the judgment has not
given them an opportunity of oral arguments.
31. T.he expressions "state· his case", "produce his
8 evidence" and "address the court generally on the whole case"
occurring in Order XVIII Rule 2, sub-rule (1) and sub-rule (2)
have different meaning and connotation. By use of the
expression "state his case", the party before production of his
evidence is accorded an opportunity to give general outlines
C of the case and also indicate generally the nature of evidence
likely to be let in by him to prove his case. The general outline
by a party before letting in evidence is intended to help the
court in understanding the evidence likely to be followed by a
party in support of his case. After case is stated by a party, the
D evidence is produced by him to prove his case. After evidence
has been produced by all the parties, a right is given to the
parties to make oral arguments and also submit written
submissions, if they so desire. The hearing of a. suit does not
mean oral arguments atone but it comprehends both production
E of evidence and arguments. The scheme of the Code, as
embodied, in Order XVflf Rufe 2, particularly, sub-rules (1), (2),
(3) and (3A) and Order XVIII Rule 15 enables the sucoessor
Judge to deliver the judgment without oral arguments wtiere one
party has al.ready lost his right of making oral arguments and
F the other party does not insist on it.
32. In light of the legal position and the factuai matrix. of
the case, we are unable to accept the contention of the learned
senior counsel for the appe"ants that the trial court violated the
fundamental principle of law, i.e. "one who hears must decide
G the case".
33. Mr. Shekhar Naphade, learned senior counsel for the
appellants contended that even if it be assumed (though the
appellants seriously dispute that) that the trial court was jusµtied
H
RASIKLAL MANICKCHAND. DHARIWAL & ANR. v. 1177
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
in proceeding ex parte against the defendants on March 17, A
2005 but since the defendants had appeared on subsequent
dates, their right to address the court on merits of the case
could not have been denied. Learned senior counsel submitted
that proceeding ex parte under Order IX Rule 7 of the Code
on March 17, 2005, did not take away the defendants' right to B
participate further in the proceedings of the suit. In this regard,
senior counsel relied upon a decision of the Bombay High
Court in Radhabai Bhaskar Sakharam v. Anant Pandurang
Pandit and Anr. 6 arid a decision of Nagpur High Court in
Kashirao Panduji v. Ramchandra Balaji. 7 It was submitted that c
the judgment of the Nagpur High Court in Kashirao Panduji7
was binding on the tri~I court as at the relevant time,
Mandaleshwar was within the jurisdiction of the Nagpur High
Court.
34. The contention, at the first blush: appears to be D
attractive but has no substance at all. In the first place, once
the hearing of the suit is concluded; and the suit is closed for
judgment, Order IX Rule 7 of the Code has no application at
all. The very language of Order IX Rule 7 makes this clear. This
provision pre-supposes the suit having been adjourned for E
hearing. The courts, time out of number, have said that
adjournment for the purposes of pronouncing judgment is no
adjournment of the "hearing of the suit". On March 17, 2005,
the trial court in the present case did four things, namely, (i)
closed the evidence of the plaintiff as was requested by the F
plaintiff; (ii) ordered the suit to proceed ex parte as defendants
failed to appear on that date; (iii) heard the arguments of the
Advocate for the plaintiff; and (iv) kept the matter for
pronouncement of judgment on March 28, 2005. In view of the
above, Order IX Rule 7 of the Code has no application at all G
and it is for this reason that the application made by the
defendants under this provision was rejected by the trial court.
6. AIR (1922) Born 345.
7. AIR (35) 1948 Nag 362. H
1178 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 35. Secondly, once the suit is closed for pronouncement
of judgment, there is no question of further proceedings in the
suit. Merely, because the defendants continued to make
application after application and the trial court heard those
applications, it cannot be said that such appearance by the
B defendants is covered by the expression "appeared on the day
fixed for his appearance" occurring in Order IX Rule 7 of the
Code and thereby entitling them to address the court on the
merits of the case. The judgment of Bombay High Court in
Radhabai Bhaskar Sakharam 6 on which reliance has been
c placed by the learned senior counsel for the appellants, does
not support the legal position canvassed by him. Rather in
Radhabai Bhaskar Sakharam 6 , the Division Bench of the
Bombay High Court held that if a party did not appear before
the suit was heard, then he had no right to be heard. This is
clear from the following statement in the judgment :
0
" ......... Until a suit is actually called on, a party is entitled
to appear and defend. It may be that he is guilty of delay
and if that is the case he may be mulcted in costs. But if
he does not appear before the suit is heard, then he has
E no right to be heard ................. "
(Emphasis supplied)
36. The Nagpur High Court in the case of Kashirao
F Panduji7 referred to the decision of Bombay High Court in
Radhabai Bhaskar Sakharam 6 and observed as under:
"14. The suit was just in its initial stage. In Radhabai v.
Anant Pandurang A.LR. 1922 Born. 345 it is held that if a
party appears before the case is actually heard, he has a
G right to be heard. The provisions of Order 9 are never
meant to be penal provisions, and it is only in clear cases
of gross negligence and misconduct that a party should be
deprived of the opportunity of having a satisfactory
disposal of the case which evidently can only be done when
H both parties have full opportunity of placing their case and
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1179
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.],
their evidence before the Court." A
37. There is no quarrel to the legal position that if a party
appears before the case is actually heard and if he has
otherwise not disqualified himself from being heard, he has a
right to be heard. There can also be no quarrel about the general 8
observations made by the Nagpur High Court with regard to
Order IX of the Code but each case has to be seen in its own
facts. As regards the instant case, it has to be borne in mind
that the High Court in its order dated May 11, 2004 while
dismissirg. the defendants' appeal directed the trial court to
conclude the trial of the suit expeditiously and finally dispos~ C
of it, preferably within a period of six months from the date of
receipt of the copy of the order which was passed on May 11,
2004. Unfortunately, the suit could not be disposed of by the
trial court as directed by the High Court. This Court on February
25, 2005 while dismissing the defendants' appeal arising from D
the High Court's order dated May 11, 2004, directed the trial
. court ·to comply with the direction of the High Court and
complete the trial and dispose of the suit within six months from
that date. In complete disregard of the above direction, the
defendants continued to make application after application. As E
a matter of fact, nine interlocutory applications were filed by the
defendants after the hearing of the suit was expedited by the
High Court and the order of this Court of February 25, 2005
reiterating the expeditious disposal of the suit. After the
direction was issued by this Court on Februaf"Y 25, 2005, the F
trial court endeavoured to dispose of the suit speedily but the
defendants continued to make application after application. It
was in this backdrop that on February 28, 2005, the trial court
rejected the defendants' applications and asked the Advocate
for the defendants to cross-examine plaintiffs witnesses. On G
that date, the Advocate for the defendants stated that he has
no authority to cross-examine plaintiffs witnesses; he is not in
position to do anything and the court may do whatever it wants .
It was in this background that the trial court closed the
H
1180 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A defendants' right to cross-examine the three witnesses nf the
plaintiff and fixed the matter for March 17, 2005. On that day,
i.e., March 17, 2005 nobody appeared on behalf of the
defendants although the matter was caUed twice. It was then
that the trial court directed the matter to proceed ex parte. The
B plaintiff closed its evidence and the trial court heard the
arguments of the plaintiff ex-parte and closed the suit for
pronouncement of judgment. The above narration of facts leads
to irresistible conclusion that the defendants forfeited their right
to address the trial court on merits.
c 38. Learned senior counsel for the appellants also
contended that the suit was listed on March 17, 2005 for
plaintiff's evidence only and, therefore, the trial court could not
· have heard the final arguments and reserved the judgment for
pronouncement. lr'l this regard, reference was made to the
D proceedings of the trial court recorded on February 28, 2005
and also Rule 6 of the Madhya Pradesh Civil Courts Act, 1958
· (for short, 'Civil Courts Act'). Learned senior counsel also
pressed into service a decision of this Court in Sahara India
and Ors. v. M.C. Aggarwal HUF8.
E
39. We have already noted above the proceedings of the
trial court on February 28, 2005. The said proceedings do
indicate that on that date the defendants' counsel refused to
cross-examine the three witnesses tendered in evidence by
F plaintiff and told the trial court that he was not in position to do
anything and the court may do whatever it wants to. Faced with
this situation, the trial court closed the defendants' right to cross-
examine the plaintiff's three witnesses. As regards remaining
witnesses of the plaintiff, the trial court kept the matter .for March
G 17, 2005. On March 17, 2005, none appeared for the
defendants and the plaintiff decided not tu examine more
witnesses. It was in this situation that the trir..! court ordered the
suit to proceed ex parte. The trial court heard the arguments
of the plaintiff's advocate and reserved the judgment for
H a. (2007) 11 sec aoo.
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1181
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
pronouncement. Is the course adopted by the trial court A
impermis.ible in law? We think not. In a situation like this where
the plaintiff has closed his evidence and the defendants failed
to appear, Order XVII Rule 2 of the Code was clearly attracted.
The said provision is as follows :
B
"2. Procedure if parties fail to appear on day fixed.-
Where, , on any day to which the hearing of the suit is
adjourned, the parties or any of them fail,, to appear, the
Court may proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or make such C
other order as it thinks fit.
Exp/anation.-Where the eviden~e or a substantial
portion of the evidence of any party has already been
recorded and such party fails to appear on any day to
which the hearing of the suit is adjourned, the Court may, D
in its discretion, proceed with the case as if such party
were present."
40. In view of the above provision, the trial court was
required to proceed to dispose of the suit in one of the modes E
prescribed in Order IX of the Code. Order IX Rule 6 (1 )(a) lays
down the procedure where after due service of summons, the
defendant does not appear when the suit is called on for
hearing. In that iituation, the court may make an order that suit
shall be heard ex parte. The legal position with regard to Order F
IX Rule 6 has been explained by a 3-Judge Bench of this Court ·
in the case of Arjun Singh 3 , wherein this Court stated thus :
"......... Rule 6(1)(a~ enables the Court to proceed ex parte
where the defendant is absent even after due service. Rule
6 contemplates two ca~es: (1) The day on which the G
defendant fails to appear is one of which the defendant has
no intimation that the suit will be taken up for final hearing
for example, where the hearing is only the first hearing of
the suit, and (2) where the stage of the first hearing is
passed and the hearing which is fixed is for the disposal H
1182 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A of the suit and the defendant is not present on such a day.
The effect of proceeding ex parte in the two sets of cases
would obviously mean a great difference in the result. So
far as the first type of cases is concerned it has to be
adjourned for final disposal and, as already seen, it would
B be open to the defendant to appear on that date and
defend the suit. In the second type of cases, however, one
of two things might happen. The evidence of the plaintiff
might be taken then and there and judgment might be
pronounced......... ."
c 41. The following observations made by this Court in Arjun
Singh 3 with reference to Order IX Rule 7, Order IX Rule 13 and
Order XX Rule 1.are quite apposite and may be reproduced
as it is:
D "......... On the terms of O.IX, r.7 if the defendant appears
on such adjourned date and satisfies the court by showing
good cause for his non-appearance on the previous day
or days he might have the earlier proceedings recalled -
"set the clock back" and have the suit heard in his
E presence. On the other hand, he might fail in showing good
cause. Even in such a case he is not penalised in the
sense of being forbidden to take part in the further
proceedings of the suit or whatever might still remain of
the trial, only he cannot claim to be relegated to the position
F that he occupied at the commencement of the trial. Thus
every contingency which is likely to happen in the trial vis-
a-vis the non-appearance of the defendant at the hearing
of a suit has been provided for and O.IX, r.7 and O.IX, r.
13 between them exhaust the whole gamut of situations
that might arise during the course of the trial. If, thus,
G
provision has been made for every contingency, it stands
to reason that there is no scope for the invocation of the
inherent powers of the Court to make an order necessary
for the ends of justice. Mr. Pathak, however, strenuously
contended that a case of the sort now on hand where a
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1183
M.S.S. FOOD PRODUCTS [RM. LODHA, J.)
defendant appeared after the conclusion of the hearing but A
before the pronouncing of the judgment had not been
provided for. We consider that the suggestion that there
is such a stage is, on the scheme of the Code, wholly
unrealistic. In the present context when once the hearing
starts, the Code contemplates only two stages in the trial B
of the suit: (1) where the hearing is adjourned or (2) where
the hearing is completed. Where the hearing is completed
the parties have no furtherrights or privileges in the matter
and it is only for the convenience of the Court that O.XX,
R.1 permits judgment to be delivered after an interval after c
the hearing is completed. It would, therefore, follow that after
the stage contemplated by O.IX, r. 7 is passed the next
stage is only the passing of a decree which on the terms
of O.IX, r. 6 the Court is competent to pass. And then
follows the remedy of the party to have that decree set D
aside by application under 0. IX, r.13. There is thus no
hiatus between the two stages of reservation of judgment
and pronouncing the judgment so as to make it necessary
for the Court to afford to the party the remedy of getting
orders passed on the lines of 0. IX, r:? .......... "
E
42. In light of the above legal position, the trial court cannot
be said to have committed any error in ordering the suit to
proceed ex parte; hearing the arguments and closing the suit
for pronouncement of judgment. What is provided by Rule 6 of
the Civil Courts Act is that each case fixed for any day shall be F
entered in advance immediately upon a date or adjourned date
being fixed and such entry would show the purpose for which it
is set down on each date. It further provides that the cases
should be classified in such a rtianner as to show at a glance
the nature of work fixed for the particular date. Rule 6 basically G ·,
provides for a procedure which is required to be followed in
maintaining the register for the purpose of the dates fixed in
the matter and the purpose for which the date has been fixed.
The said provision does not in any way impinge upon the power
of the court to proceed for disposal of the suit in case both the H
1184 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A parties or either of the parties fail to appear as provided in
Order IX of the Code.
43. The decision of this Court in Sahara lndiaB relied upon
by the learned senior counsel for the appellants hardly has any
application to the facts of the present case. The facts in that
8
case are indicated in paragraph 4 of the Report. On May 13,
2002, the case was fixed for the evidence of the plaintiff. On
that day, the Presiding Officer was on leave and the case was
adjourned to May 29, 2002 for the plaintiffs evidence. On May
C 29, 2002, none appeared for the defendants and the m&tter
was adjourned to May 31, 2002 for final arguments and for
orders after lunch. Finally, the suit was decreed- by the trial
court. The first appeal from the judgment and decree of the trial
court was dismissed. The matter then reached this Court. It is
true that it was argued before this Court that the course adopted
D by the trial court has no sanctity in law and even if the
defendants were not present, the order could have been passed
at the most to set the defendants ex parle and another date
should have been fixed. It was also argued before this Court
that the reason for non-appearance was due to the wrong noting
E of the date by the counsel appearing for the defendants. In
paragraph 8 of the decision, this Court stated thus :
"8. We find that the High Court has disposed of the first
appeal practically by a non-reasoned order. It did not even
F consider the plea of the defendants as to why there was
non-appearance. Be that as it may, the course adopted
by the trial court appears to be unusual. Therefore, we
deem it proper to remit the matter to the trial court for fresh
adjudication. Since the matter is pending the trial court shall
dispose of the matter within three months from the date of
G
receipt of our order.
44. From the above, it is clear that what persuaded this
Court in remanding the matter back to the trial court was that
the High Court disposed of the first appeal by a non-reasoned
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1185
·M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
order. The High Court did not even consider the plea of the A
defendants as to why there was non-appearance. The
observation, "Be that as it may, the course adopted by the trial
court appears to be unusual" must be seen in its perspective.
The statement does not exposit any principle of law.
B
45. It was contended by Mr. Shekhar Naphade, learned
senior counsel for the appellants that diverse interlocutory
applications, particularly, applications (i) to produce original
documents under Section 151 of the Code (IA No. 10), (ii)
under Order XXX Rule 10 of the Code for dismissal of the suit C
(IA No. 1 ·1), (iii) for the leave of the court to deliver
interrogatories UAder Order XI Rule 1 of the Code (IA No. 13),
(iv) for production of excise documents under Order XI Rules
12 and 14 of the Code (IA No. 14), (v) for summoning records
from the Central Excise Department under Order XVI Rules 1
and 6 of the Code (IA No. 27) and (vi) for inspection of D
documents under Order XI Rule 14 of the Code (IA No. 28)
were made but wrongly rejected by the trial court by various
orders. He submitted that these orders were challenged before
the High Court and then brought to this Court. This Court granted
liberty to the defendants to raise contentions concerning E
rejection of these applications in the' appeal against the decree.
The appellants challenged tlie orders rejecting these
applications before the High Couriin the first appeal and raised
contentions in this regard but the High Court did not advert to
these contentions at all. Learned senior counsef submitted that F
rejection of these applications and non-adherence to pre-trial
procedures have rendered the impugned judgment and decree
bad in law.
46. The judgment of the High -Court is not brief, and is G
rather occupied with an elaborate discussion but there is no
reference of challenge to the orders passed by the trial court
on various interlocutory applications. Confronted with this
difficulty, learned senior counsel relied upon statement made
at page 'I' of the synopsis, paragraph 21, wherein it is stated : H
1186 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 'The following issues were taken in the ground of appeal
and argued but have not even been discussed by the
Hon'ble High Court in its impugned judgment.
B (d) That the Petitioner had also assailed the dismissal of
various applications filed by the Petitioner during the
course of trial in view of the liberty granted by this Hon'ble
Court but none of the grounds has been considered or
discussed or even averred to in the impugned judgment.
c
"
It is true that in the counter affidavit filed by the respondent,
nothing has been said about the above statement made in the
synopsis. However, in our view, in case the contentions raised
0 by the appellants were not considered by the High Court, the
proper course available to the appellants was to bring to the
notice of the High Court this aspect by filing a review
application. Such course was never adopted. In view of this,
we are not persuaded to permit the appellants to challenge the
E orders passed by the trial court on the interlocutory applications
now and argue that trial court erred in not adhering to the pre-
trial procedures.
47. Mr. Shekhar Naphade, learned senior counsel for the
F appellants also challenged the correctness of the order dated
December 7, 2005 passed by the trial court granting plaintiff
permission to lead secondary evidence. In our view, the trial
court cannot be said to have erred in permitting the plaintiff to
lead secondary evidence when the original assignment deed
G was reportedly lost.
48. Learned senior counsel for the appellants vehemently
contended that the evidence let in by the plaintiff is no evidence
in the eye of law and, therefore, on such evidence, the plaintiffs
suit could not have been decreed. The argument of the learned
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1187
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
senior counsel is that on behalf of the plaintiff, three witnesses A
·were tendered in evidence; their examination-in-chief was filed
by means of affidavits but, as required under Order XVIII Rule
5 of the Code, they never entered the witness box nor confirmed
the contents of the affidavits. In this regard, learned senior
counsel relied upon .a decision of the Bombay High Court in B
the case of F. D. C. Limited v. Federation of Medical
Representatives Association India & OrS. 9 and a decision of
this Court ih Ameer Trading Corpn. Ltd. v. Shapoorji Data
Processing Ltd. 10 affirming the view of the Bombay High Court
in the case of F.D.C. Limited9• Learned senior counsel would c
submit that as a matter of fact, the plaintiff did make an
application on February 28, 2005 for permission to follow the
procedures as stated in the case of Ameer Trading Corpn.
Ltd. 10 but on the next date, i.e., March 17, 2005 that application
was withdrawn. According to him, irrespective of withdrawal of D
such application, the plaintiff had to follow the procedure
provided in order XVIII Rule 5 of the Code before examination-
in-chief of its witnesses through affidavits could be treated as
evidence as the case before the trial court was an appealable
case. He also argued that the documents referred to in the
affidavits have not been proved according to the provisions of E
the Evidence Act and under Order XVIII Rule 4 of the Code. It
was, thus, contended by the learned senior counsel that there
has been absolutely non-application of mind by the trial court
in decreeing plaintiffs suit.
F
49. Order XVIII Rule 4 of the Code provides for the mode
of recording the evidence. The said provision reads as follows
"4. Recording of evidence.-(1) In every case, the G
examination-in-chief of a witness shall be on affidavit and
copies thereof shall be supplied to the opposite party by
the party who calls him for evidence:
9. AIR 2003 Born 371.
10. (2004) 1 sec 102. H
1188 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Provided that where documents are filed and the
parties rely upon the documents, the proof and
admissibility of such documents which are filed along with
affidavit shall be subject to the orders of the Court.
B
(2) The evidence (cross-examination and re-
examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the
Court shall be taken either by the Court or by the
Commissioner appointed by it:
c Provided that the Court may, while appointing a
commission under this sub-rule, consider taking into
account such relevant factors as it thinks fit:
(3) The Court or the Commissioner, as the case may
D be, shall record evidence either in writing or mechanically
in the presence of the Judge or of the Commissioner, as
the case may be, and where such evidence is recorded
by the Commissioner he shall return such evidence
together with his report in writing signed ,by him to the
Court appointing him and the evidence taken under it shall
E
form part of the record of the suit.
(4) The Commissioner may record such remarks as
itthinks material respecting the demeanour of any witness
while under examination.
F
Provided that any objection raised during the
recording of evidence before the Commissioner shall be
recorded by him and decided by the Court at the stage of
arguments.
G (5) The report of the Commissioner shall be
submitted to the Court appointing the commission within
sixty days from the date of issue of the commission unless
the Court for reasons to be recorded in writing extends the
time.
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1189
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.] .
(6) The High Court or the District Judge, as the case A
may be, shall prepare a panel of Commissioners to record
the evidence under this rule.
(7) The Court may by general or special order fix the
amount to be paid as remuneration for the services of the
8
Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of
Order XXVI, in so far as they are applicable, shall apply
to the issue, execution and return of such commission
under this rule." C
50. As to how the evidence is to be taken in appealable
cases is provided in Rule 5 of Order XVIII of the Code. This
provision reads as follows :
"5. How evidence shall be taken in appealable cases.-ln D
cases in which an appeal is allowed, the evidence of each
witness shall be,-
(a) taken down in the language of the Court,-
E
(i) in writing by, or in the presence and under
the personal direction and superintendence
of, the Judge, or
(ii) from the dictation of the Judge directly on a
typewriter, or F
(b) if the Judge, for reasons to be recorded, so directs,
recorded mechanically in the language of the Court
in the presence of the Judge."
G
51. The purpose and objective of Rl,lle 4 of Order XVIII of
the Code is speedy trial of the case and to save precious time
of the court as the examination-in-chief of a witness is now
mandated to be made on affidavit with a copy thereof to be
supplied to the opposite party. The provision makes it clear that tJ
1190 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A cross-examination and re-examination of witness shall be taken
either by the court or by Commissioner appointed by it. Proviso
appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies
that where documents are filed and the parties rely upon the
documents, the proof and admissibility of such documents
B which are filed along with the affidavit shall be subject to the
order of the court. In a case in which appeal is allowed, Rule 5
of Order XVIII provides that the evidence o(each witness shall
be taken down in writing by or in the presence and under the
personal direction and superintendence of the Judge or from
c the dictation of the Judge directly on a typewriter or recorded
mechanically in the presence of the Judge if the Judge so
directs for reasons to be recorded in writing.
52. The above provisions, namely, Order XVIII Rule 4 and
Order XVIII Rule 5 of the Code came up for consideration
D before this Court in the case of Ameer Trading Corpn. Ltd. 10 •
Before we refer to this judgment, it is appropriate that the
judgment of the Bombay High Court in F.D. C. Limited9 is noted.
The Single Judge of that Court in F.D.C. Limited9 held as
under:-
E
"7. It is to be noted that the legislature being fully aware
about the provision of law contained in Rule 5 which was
already there even prior to the amendment to Rule 4, has
amended the Rule 4 with effect from 1.7.2002 specifically
F providing thereunder that the examination in chief "in every
case" shall be on affidavit. One has to bear in mind the
decisions of the Apex Court in the case of Dadi
Jagannadham v. Jammulu Ramulu reported in 2001 (7)
sec 71 on the settled principles of interpretation of
statutes that the Court must proceed on the assumption
G
that the legislature did not make a mistake and that it did
what it intend to and the court as far as possible should
adopt construction which will carry out obvious intention of
legislature, and in East India Hotels Ltd., and Anr. v.
Union of India and Anr. reported in (2001) 1 SCC 284
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1191
M.S.S. FOOD PRODl,JCTS [R.M. LODHA, J.]
that "An act has to be read as a whole, the different A
provisions have to be harmonised and the effect has to be
given to all of them". The harmonious reading of Rules 4
and 5 of Order XVIII would reveal that while in each and
every case of recording of evidence, the examination in
chief is to be permitted in the form of affidavit and while 8
such evidence in the form of affidavit being taken on record,
the procedure described under Rule 5 is to be followed in
the appealable cases. In non appeatable cases, the
affidavit can be taken on record by taking resort to the
provisions of law contained in Rule 13 of Order XVIII. In C
other words, mere production of the affidavit by the witness
will empower the court to take such affidavit on record as
forming part of the evidence by recording the
memorandum in respect of production of such affidavit
taking resort to Rule 13 of Order XVIII in all cases, except
in the appealable cases wherein it will be necessary for D
the Court to record evidence of production of the affidavit
in respect of examination in chief by asking the deponent
to produce such affidavit in accordance with Rule 5 of
Order XVIII. Undoubtedly, in both the cases, for the purpose
of cross-examination, the court has to follow the procedure E
prescribed under Sub-rule 2 of Rule 4 read with Rule 13
in case of non-appealable cases and the procedure
prescribed under Sub-rule 2 of Rule 4 read with Rule 5 in
appeatabte cases.
F
8. tn other words, in the appeatable cases though the
examination in chief of a witness is permissible to be
produced in the form of affidavit, such affidavit cannot be
ordered to form part of the evidence unless the deponent
thereof enters the witness box and confirms that the G
contents of the affidavit are as per his say and the affidavit
is under his signature and this statement being made on
oath to be recorded by following the procedure prescribed
under Rule 5. In non appealable cases however, the
affidavit in relation to examination in chief of a witness can H
1192 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A be taken on record as forming part of the evidence by
recording memorandum of production of such affidavit by
taking resort to Rule 13 of Order XVIII. The cross-
examinatior'l of such deponent in case of appealable
cases, will have to be recorded by complying the
provisions of Rule 5, whereas in case of non appealable
B
cases the court would be empowered to exercise its
power under Rule 13. '
9. In fact Rule 4, either unamended or amended makes
no difference between appealable or non appealable
c cases in the matter of method of recording of evidence.
Such differentiation is to be found in Rule 5 and 13. The
Rule 4, prior to the amendment, provided that when
witness would appear before the court, his testimony would
require to be recorded in the presence of and under the
D personal direction of the Judge which was required to be
done in appealable cases as well as in non appealable
cases. Only method of recording testimony in appealable
cases that was to be in terms of Rule 5 whereas in other
cases in terms of Rule 13. Now, in terms of Rule 4, after
E its amendment, it provides that recording of evidence in
relation to examination in chief shall be in all cases by way
of affidavits. However, as already observed above, in
appealable cases the same to be admitted in evidence
or to be made part and parcel of the evidence by following
the method prescribed under Rule 5 and in other cases,
the one prescribed under Rule 13.
10. Experience has shown that by allowing the parties to
place on record the examination in chief in the form of
affidavit, saves lot of time oi' the Court, the litigants and the
G public. The provisions of law of procedure are to be read
and interpreted, to give full effect to the intention of the
legislature. The intention behind the amendment to Rule 4
is to curtail the delay in disposal of the suits. As the
recording of evidence in the form of affidavit being in aid
H
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1193
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
of avoiding delay in disposal of the suits, and there being · A
no conflict disclosed between the provisions of Rules 4 and
5 on being read as above, it is to be held that in each and
every case, the evidence in examination in chief before the
trial court can be in the form of affidavit, the only difference
to be observed will be in the procedure of taking such B
affidavit on record and in the appealable cases it has to
be taking resort to the provisions of Rule 5 and in other
cases to Rule 13."
53. At this stage, a reference to Rule 13 of Order XVIII of C
the Code may also be made. The said provision provides for
memorandum of evidence in unappealable cases. It reads as
follows:
"13. Memorandum of evidence in unappealable cases.-.
In cases in which an appeal is not allowed, it shall not be D
necessary to take down or dictate or record the evidence
of the witnesses at length; but the Judge,. as the
examination of each witness proceeds, shall make in
writing, or dictate directly' on the typewriter, or cause to be
mechanically recorded, a memorandum of the substance E
of what the witness deposes, and such memorandum shall
be signed by the Judge or otherwise authenticated, and
shall form part of the record."
54. It is also relevant to mention that Rule 5 of Order XVIII
was substituted by Act 104 of 1976 with effect from February F
1, 1977. Order XVIII Rule 4 of the Code was in fact substituted
by a later Act, namely, Act No. 22 of 2002 with effect from July
1, 2002. Rule 4 Order XVIII begins with the expression, "in every
case" and says that the examination-in-chief of a witness shall
be on affidavit and copies thereof shall be supplied to the G
opposite party by the party who calls him for evidence.
55. Now, we consider the decision of this Court in Ameer
Trading Corpn. Ltd. 10 . The interpretation of Order XVIII Rule 4
and Rule 5 of the Code fell for consideration in that case. In H
1194 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A paragraph 15 of the Report, this Court stated, 'the examination
of a witness would include evidence-in-chief, cross-examination
or re-examination. Rule 4 of Order XVIII speaks of examination-
in-chief....... Such examination-in-chief of a witness in every
case shall be on affidavit". The Court then stated in paragraph
B 17 that Rule 4 of Order XVIII, as amended with effect from July
1, 2002 specifically provides that the examination-in-chief in
every case shall be on affidavit. It was noticed by this Court that
Rule 5 of Order XVIII has been incorporated prior to the
amendment in Rule 4. Noticing the differ13nce between Rule 4
c and Rule 5 of Order XVIII, the Court said that Rule 4 of Order
XVIII did not make any distinction between appealable and non-
appealable cases so far as mode of recording evidence is
concerned. Then, in paragraph 19 of the Report, the Court
observed as under :
D "19. It, therefore, appears that whereas under the
unamended rule, the entire evidence was required to be
adduced in court, now the examination-in-chief of a
witness including the party to a suit is to be tendered on
affidavit. The expression "in every case" is significant.
E What thus remains viz. cross-examination or re-
examination in the appealable cases will have to be
considered in the manner laid down in the rules, subject
to the other sub-rules of Rule 4."
F 56. This Court applied Heydon's Rule as well as the
principles of purposive construction and stated (i) the
amendment having been made in Rule 4 of Order XVIII of the
Code by the Parliament later, the said provision must be given
full effect and (ii) the two provisions must be construed
G harmoniously. In paragraph 33 of the Report, this Cc'Jrt stated
as follows:
"33. The matter may be considered from another angle.
Presence of a party during examination-in-chief is nol
imperative. If any objection is taken to any statement made
H in the affidavit, as for example, that a statement has been
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1195
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
made beyond the pleadings, such an objection can always A
be taken before the court in writing and in any event, the
attention of the witness can always be drawn while cross-
examining him. The defendant would not be prejudiced in
any manner whatsoever if the examination-in-chief is taken
on an affidavit and in the event he desires to cross- B
examine the said witness he would be permitted to do so
in the open court. There may be cases where a party may
not feel the necessity of cross-examining a witness,
examined on behalf of the other side. The time of the court
would not be wasted in examining such witness in open c
court."
57. It is pertinent to notice that in Ameer Tradir19 Corpn.
Ltd. , a decision of the Rajasthan High Gourt in the case of
10
Laxman Das v. Deoji Mal & Ors. 11 was cited wherein the view
was taken that in the appealable cases, Order XVIII Rule 4 of D
the Code has no application and the court must examine all the
witnesses in court. The contrary view taken by the Bombay High
Court in F.D.C. Limited9 was also cited. This Court considered
the decision of the Rajasthan High Court in the case of Laxman
Das 11 and the decision of Bombay High Court in F.D.C. E
Liml1ed9 and noticed the conflict in the two decisions. When this
Court stated in paragraph 32, "we agree with the view of the
Bombay High Court'', the Court agreed with the view of the
Bombay High Court that irrespective of whether the case is
appealable or non-appealable the examination-in-chief has to F
be permitted in the form of affidavit. Paragraph 32 of the Report
cannot be read to mean that paragraphs 7 and 8 of the decision
of the Bombay High Court in F.D.C. Limited9 were approved
by this Court in entirety. This is for more than one reason. In
the first place, this Court after quoting the view of Rajasthan High G
Court in the case of Laxman Das 11 in paragraph 30 and the
view of Bombay High Court in the case of F.D.C. Limited9 in
paragraph 31, said, "we agree with the view of the Bombay High
Court". This expression, thus, means that this Court has
11. AIR 2003 Rajasthan 74. H
1196 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A preferred the view of Bombay High Court concerning the
interpretation of Rule 4 of Order XVIII of the Code over the view
of the Rajasthan High Court. Second and equally important,
after quoting paragraphs 7 and 8 of the decision of the Bombay
High Court in F.O.C. Limited9 , the Court has not said that they
B agree with the above view of the Bombay High Court. Third,
the subsequent paragraph 33 makes the legal position further
clear. This Court said, "presence of a party during examination-
in-chief is not imperative. If any objection is taken to any
statement made in the affidavit, as for example, that a statement
c has been made beyond the pleadings, such an objection can
always be taken before the court in writing and in any event,
the attention of the witness can always be drawn while cross-
examining him". The prejudice principle was accordingly
applied and the Court said that the defendant would not be
prejudiced in any manner whatsoever if the examination-in-chief
0
is taken on an affidavit and in the event the defendant desires
to cross-examine the said witness he would be permitted to do
so in the open court. For all this, it cannot be said that in Ameer
Trading Corpn. Ltd. 10, it has been laid down as an absolute rule
E that in the appealable cases though the examination-in-chief of
a witness is permissible to be produced in the form of affidavit,
such affidavit cannot be treated as part of the evidence unless
the deponent enters the witness box and confirms that the
contents of the affidavit are as per his say and the affidavit is
under his signature. Where the examination-in-chief of a
F witness is produced in the form of an affidavit, such affidavit is
always sworn before the Oath Commissioner or the Notary or
Judicial Officer or any other person competent to administer
oath. The examination-in-chief is, thus, on oath already. In our
view, there is no requirement in Order XVIII Rule 5 that in
G appealable cases, the witness must enter the witness box for
production of his affidavit and formally prove the affidavit. As it
is such witness is required to enter the witness box in his cross-
examination and, if necessary, re-examination. Since a witness
who has given his examination-in-chief in the form of affidavit
H has to make himself available for cross-examination in the
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1197
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
witness box, unless defendant's right to cross examine him has A
been closed, such evidence (examination-in-chief) does not
cease to be legal evidence.
58. On February 28, 2005, the three witnesses whose
examination-in-chief was tendered by the plaintiff in the form
8
of affidavits were present for cross-examination but despite the
opportunity given to the defendants, they chose not to cross-
examine them and thereby the trial court closed the defendants'
right to cross-examine these witnesses. In view of this, it cannot
be said that any prejudice has been caused to the defendants C
if these three witnesses did not enter the witness box.
59. Learned senior counsel for the appellants also
submitted that the suit was not maintainable under Order XXX
Rule 10 of the Code having been filed in the name of the
proprietorship firm-Mis. M.S.S. Food Products. Relying upon D
a decision of the Bombay High Court in the case of Bhagvan
Manaji Marwadi & Ors. v. Hiraji Premaji Marwadi 12 , it was
urged that a proprietorship firm cannot sue in its name.
60. Rule 10 of Order XXX of the Code reads as follows : E
"10. Suit against person carrying on business in name
other than his own.-Any person carrying on busine~ in
a name or style other than his own name, or a Hindu
undivided family carrying on business under any name,
may be sued in such name or style as if it were a firm F
name, and, in so far as the nature of such case permits,
all rules under this Order shall apply accordingly."
61. The above provision is an enabling provision which
provides that a person carrying on business in a name or style G
·other than his own name may be sued in such name or style
as if it were a firm name. As a necessary corollary, the said
provision does not enable a person carrying on business in a
12. AIR 1932 Born 516. H
1198 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A name or style other than in his own name to sue in such name
or style.
62. The plaint filed by the plaintiff describes the title of the
plaintiff as follows:
B "Messrs. M.S.S. Food F-roducts,
Plot No. D, Sector-E,
Sanver Road Industrial Area, Indore,
Through - Proprietor - Nilesh Vadhwani,
Son of Shri Ashok Vadhwani, aged 27 years,
c Occupation - Business."
63. The above description of the plaintiff in the plaint at
best may be called to be not in proper order inasmuch as the
name of Nilesh Vadhwani must have preceded the business
name in the cause title. This is not an illegality which goes to
D the root of the matter. Moreover, the defendants did file an
application (IA No. 11/2004) under Order XXX Rule 10 of the
Code before the trial court but that came to be rejected on
November 27, 2004. The said order was challenged at
interlocutory stage and the matter ultimately reached this Court.
E This Court refused to interfere with the order but gave liberty
to the defendants to challenge the same in the first appeal, if
aggrieved by the judgment and decree. Even after rejection of
the application under Order XXX Rule 10 of the Code by the
trial court vide order dated November 27, 2004, the defendants
F yet attempted to raise the same controversy by making an
application for amendment in the written statement but that too
was dismissed. This order was also challenged at interlocutory
stage by the defendants but the said order was not interfered
with by the High Court and this Court and liberty was granted
G to the defendants to challenge the same in the first appeal
against the final judgment and decree. However, from the
perusal of the judgment of the High Court, it appears that no
argument was advanced with regard to correctness of these
two orders. We have already referred to this aspect in the
H earlier part of our judgment. The judgment of the Bombay High
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1199
M.S.S. FOOD PRODUCTS [RM. LODHA, J.]
Court in the case of Bhagvan Manaji Marwadi 12 is of no help P.
to the appellants for the above reasons.
64. Mr. Shekhar Naphade, learned senior counsel for the
appellants strenuously urged that statutory excise record (since
pan masala/gutka are exigible to excise duty) having not been
8
filed by the plaintiff wbich was the best piece of evidence, the
adverse inference ought to have been drawn against the
plaintiff that plaintiff· never manufactured pan masala/gutka
under the brand "Malikchand" and the factum of manufacturing
"Malikchand" pan masala and gutka having not been proved,
there was no question of restraining the defendants from using C
their brand "Manikchand" in the passing off action. In support
of his contention that the party is bound to produce best
evidence in his possession to prove his case, learned senior
counsel placed reliance on a decision of this Court in Gopa/
Krishnaji Ketkar v. Mahomed Haji Latif and Ors. 13 It was also D
argued that the defendants are well-known registered brand
having national as well as international presence for more than
two decades; the turnover of the defendants is more than
rupees three hundred crores per annum and they have been
incurring huge expenditure on sales, promotion and E
advertisement and that on account of continuous use of trade
"Manikchand" from the year 1961 on a commercial scale, their
mark has acquired the status of well-known mark within the
meaning of Section 2(1)(zg) of the Trade Marks Act, 1999 and
the High Court as well as trial court ought to have taken judicial F
notice of the brand and goodwill of "Manikchand". It was also
submitted that the plaintiff has produced the fabricated
documents viz., bill that referred to service tax in the year 1990
whereas service tax came into force in the year 1994 only. The
deeds of assignment do not inspire confidence as assignment G
has been made for a consideration of Rs. 500/- which is too
meager and, as a matter of fact, the Bombay police after
investigation found that the two assignment deeds dated May
1, 1986 and April 1, 1992 were forged and fabricated.
13. AIR 1968 SC 1413. H
1200 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 65. We are not persuaded by the submission of learned
senior counsel for the appellants. The defendants did not cross-
examine the plaintiff's witnesses despite opportunity having
been granted to them. There could have been some merit in
the submissions, had the defendants cross-examined the
B plaintiffs witnesses on these aspects. But, unfortunately, they
did not avail of that opportunity. In the circumstances, if the trial
court and the High Cot.Jrt accepted the plaintiffs evidence which
remained un-rebutted and unchallenged and also relied upon
the documents produced by the plaintiff, it cannot be said that
c any illegality has been committed by the trial court in decreeing
plaintiffs suit or any illegality has been committed by the High
Court in dismissing the first appeal.
66. Learned senior counsel for the appellants then
contended that the matter was posted for judgment on March
D 7, 2007 and the counsel for the plaintiff submitted that he did
not wish to argue the matter and since the plaintiff did not argue
the matter, as required by Order XX Rule 1 of the Code, the
learned Trial Judge ought to have dismissed the suit. We find
no merit in this submission. As noticed above, the matter was
E fixed for pronouncement of judgment on March 28, 2005. The
judgment could not be pronounced on that day and the matter,
thereafter, was fixed on various dates on the diverse
applications made by the defendants. In the meanwhile, the
Presiding Officer who heard the arguments of the plaintiff and
F kept the judgment reserved got transferred and new Presiding
Officer assumed the office. We have already dealt with in detail
that in the facts and circumstances of the case, on tr<1nsfer of
the predecessor Judge who heard the arguments, it was not
incumbent upon the successor Judge to hear the arguments of
G the defendants. The proceedings reveal that ultimately the matter
was kept for pronouncement of judgment on March 7, 2007. On
that day, the court disposed of various applications made by
the defendants and pronounced the judgment. The order sheet
of March 7, 2007 does record that the plaintiff's advocate
H expressed that he did not want to address any arguments. This
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1201
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
statement is in the context of not advancing further arguments A
as on behalf of the plaintiff, the arguments had already been
advanced; the judgment was reserved and kept for
pronouncement. The contention of the learned senior counsel
is noted to pe rejected.
B
67. Lastly, learned senior counsel relying on "doctrine of
proportionality" submitted that even if it is held that the
defendants were in default in reaching the court late on March
17, 2005 and failed to cross-examine the plaintiffs witnesses,
the court could have at best imposed cost on the defendants
and given them an opportunity to lead evidence and contest the C
suit on merits. Had this course been adopted, there would not
have been any prejudice to the plaintiff since it was enjoying
an interim order in its favour since March 16, 2004. It was, thus,
submitted that there was no occasion for the Trial Judge to
proceed ex parte, and in not permitting the defendants to argue D
the case. The contention of the learned senior counsel for the
appellants is that the judgment and dec1ee passed by the trial
court is not proportionate to the default on the part of the
defendants and, accordingly, liable to be set aside.
/ E
68. We have already indicated above that in view of the
direction of the High Court and reiteration of that direction by
this Court, the trial court was required to complete the trial and
dispose of the suit within six months from the date of the order
of this Court. Obviously, the trial court had to proceed with the F
trial of the suit speedily. On February 28, 2005, the matter was ·
fixed before the trial court for cross-examination of plaintiffs
witnesses. The defendants' advocate moved an application for
adjournment which was rejected by the trial court and when the
trial court asked the defendants' advocate to proceed with the G
cross-examination, he told the court to do whatever it wanted.
What option was left to the court except to close the right of
the defendants to cross-examine plaintiffs witnesses. On the
next date, the defendants or their advocates even did not
appear. The court was constrained to proceed ex parte against H
1202 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A the defendants, hear the plaintiff's advocate when the plaintiff
closed its evidence and reserve the judgment to be pronounced
at a later date.
69. Recently, in the case of Mis. Shiv Cotex v. Tirgun Auto
Plast P. Ltd. & Ors. (Civil Appeal No. 7532 of 2011) decided
8
on August 30, 2011, this Bench speaking through one of us
(R.M. Lodha, J.), said, " ......... Should the court be a silent
spectator and leave control of the case to a party to the case
who has decided not to take the case forward? ........ .". In
C paragraph 16 of the judgment, we stated :
"No litigant has a right to abuse the procedure provided
in the CPC. Adjournments have grown like cancer
corroding the entire body of justice delivery
system .......... The past conduct of a party in the conduct
D of the proceedings is an important circumstance which the
courts must keep in view whenever a request for
adjournment is made. A party to the suit is not at liberty to
proceed with the trial at its leisure and pleasure and has
no right to determine when the evidence would be let in
E by it or the matter should be heard. The parties to a suit -
whether plaintiff or defendant - must cooperate with the
court in ensuring the effective work on the date of hearing
for which the matter has been fixed. If they don't, they do
so at their own peril.. ........ "
F 70. The doctrine of proportionality has been expanded in
recent times and applied to the areas other than administrative
law. However, in our view, its applicability to the adjudicatory
process for determination of 'civil disputes' governed by the
procedure prescribed in the Code is not at all necssary. The
G Code is comprehensive and exhaustive in respect of the
matters provided therein. The parties must abide by the
procedure prescribed in the Code and if they fail to do so, they
have to suffer the consequences. As a matter of fact, the
procedure provided in the Code for trial of the suits is extremely
H rational, reasonable and elaborate. Fair procedure is its
RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1203
M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]
hallmark. The courts of civil judicature also have to adhere to A
the procedure prescribed in the Code and where the Code is
silent about something, the court acts according to justice,
equity and good conscience. The discretion conferred upon the
court by the Code has to be exercised in conformity with settled
judicial principles and not in a whimsical or arbitrary or B
capricious manner. If the trial court commits illegality or
irregularity in exercise of its judicial discretion that occasions
in failure of justice or results in injustice, such order is always
amenable to correction by a higher court in appeal or revision
or by a High Court in its supervisory jurisdiction. Having regard c
to the facts of the present case, which we have already
indicated above, it cannot be said that the trial court acted
illegally or with material irregularity or irrationally or in an
arbitrary manner in passing the orders dated February 28, 2005
and March 17, 2005. The defendants by their conduct and D
tactics disentitled themselves from any further indulgence by the
trial court. The course adopted by the trial court can not be said
to be unfair or inconsistent with the provisions of the Code.
71. In view of the above, appeal has no merit and is
dismissed with costs which we quantify at Rupees 50,000/- (fifty E
thousand).
N.J. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "ex parte decree"Sign in to search