Rasiklal Manickchand Dhariwal & Anr vs M/S M.S.S.Food Products

Rasiklal Manickchand Dhariwal & Anr. .... Appellants

Versus

M/s. M.S.S. Food Products ....Respondent

JUDGMENT

R.M. Lodha, J.

Leave granted.

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.

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

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`defendants') in the court of 1st Additional District Judge,

Mandaleshwar (West) Madhya Pradesh for declaration that

defendants do not have right to use 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 dealing in or selling the above

articles under the name/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 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 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 Kishore

Vadhwani, proprietor of M/s. Tulsi Stores who continued with the

business of pan masala, gutka, supari and supari mix etc. till March,

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1996. Kishore Vadhwani further assigned the trade 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

started selling gutka, pan masala, supari, supari mix, zarda, etc. in

the name of "Manikchand", - phonetically similar to the plaintiff's

mark "Malikchand" - and thereby passing off their goods as and for

plaintiff's goods. The plaintiff alleged that defendants have been

selling the inferior quality goods resulting in huge losses to it.

6. The defendants filed written statement and traversed

plaintiff's claim. They disputed plaintiff's claim of prior user and

averred that name of Prabhudayal's father was Ramprasad and not

Malikchand. They denied that any business was run by 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, 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"

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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 protect their right, the defendants have filed a

suit (Suit No. 574 of 2004) in the Bombay High Court wherein

plaintiff's 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

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

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?

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?

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, then its effect?

4. Whether defendants have been running their business

from the year 1960 having lawfully obtained the

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trademark "Manikchand" from the 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 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

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?

8 Relief & cost?"

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.

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 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 the

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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 plaintiff's application for

temporary injunction and made the ad interim ex parte injunction

order dated March 16, 2004 absolute to 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

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 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, 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,

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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 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 (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 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, 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

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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.

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 Rule 10 of the Code; for

summoning of documents etc., were dismissed by the trial court.

14. On February 25, 2005 this Court dismissed 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 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 application after

application stalling the effort of the trial court in that direction. We

shall refer to the proceedings appropriately while considering the

8

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-examine the plaintiff's 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

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 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.

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. The trial

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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

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

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

and design of "Manikchand" zarda pouch and should

not advertise or publish their pouch of supari, pan

masala, jarda under the trade mark "Manikchand".

(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.

(d) Defendants shall bear the cost of this suit of the

plaintiff."

18. Against the ex parte decree dated March 7, 2007, the

defendants preferred first appeal before the Madhya Pradesh High

Court. The Division Bench of that Court vide its judgment dated

August 13, 2008 dismissed the defendants' first appeal except the

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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 23(a) and (b) were concerned

but set aside the relief granted to the plaintiff in paragraph 23(c) and

instead awarded token 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 length.

We also heard Dr. A.M. 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

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 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

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Officer assumed charge on August 28, 2006. The successor

Presiding Officer though heard 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

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 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. 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 for the judgment thereafter and that

entitled the defendants to make oral arguments.

1 (1959) Supp 1 SCR 319

2 48 Ind. Cas.859

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21. On the other hand, learned Senior Advocates for the

respondent heavily relied upon Order XVIII Rule 15 of the Code 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 regard, was placed on a decision of this Court

in Arjun Singh v. Mohindra Kumar and Others3. It was also submitted

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. 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 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

3 (1964) 5 SCR 946

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been prejudiced as the High Court has considered the entire case 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 regard,

reliance was placed on a decision of this Court in Kunhayammed and

others v. State of Kerala 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 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.

(2) The other party 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.

(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 arguments in support of his case to the

Court and such written arguments shall form part of the

record.

(3B) A copy of such written arguments shall be

simultaneously furnished to the opposite party.

(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.

4 (2000) 6 SCC 359

14

(3D) The Court shall fix such time limits for the oral

arguments by either of the parties in a case, as it thinks fit."

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

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.

(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, 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 day for that

purpose of which due notice shall be given to the parties or their

pleaders.

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 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.

15

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 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 address oral

arguments in a case and may also avail opportunity of filing written

arguments before conclusion of oral 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, transfer 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. 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 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

16

position to conclude the trial. The Code has taken care 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 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

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 the suit from the stage at which his predecessor left it.

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

framed thereunder impose a duty on the State Government

to give 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

procedure defeats the object of personal hearing. Personal

hearing enables the authority concerned to watch the

17

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 to accept his

point of view. If one person hears and another decides,

then personal hearing becomes and empty formality. We

therefore hold that the said procedure followed in this case

also offends another basic principle of judicial procedure."

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 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.

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 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

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in on April 19, 1916, the case was adjourned to April 26 for further

arguments. On April 20, one of the defendants (14th defendant) died

but his legal representatives were not brought on record. The

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, the Madras High Court

held that the 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 above decision of Madras High Court 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 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

5 AIR (1924) Lah 107

19

actually hear oral arguments although written arguments were before

him and, therefore, the 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 the 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 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 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

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 deliberately failed to avail themselves

of such opportunity. The judgment is in brief and to the extent it is

relevant may be reproduced :

20

"1. In this second appeal the first point raised by counsel

is 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 reliance

has been placed on 57 I.C. 34 and 91 P.R. 1904, as

authorities to show that under these circumstances the

judgment is a nullity and the case must be remanded to the

trial court.

2. The facts are that Mr. Muhammad Shah, the Sub-

Judge, who heard the case fixed the 10th of November, for

arguments. On that date Counsel appeared and stated that

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 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 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

he granted. He eventually carried out the inspection in the

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 I.C. 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. 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 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 the

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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."

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 of this privilege

and if they do not, they do so at their peril. Insofar as the case in

hand is concerned, the right of the defendants to cross-examine

plaintiff was closed on February 28, 2005. The matter was then fixed

for March 17, 2005 for the remaining evidence of the plaintiff. On that

day, none appeared 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 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.

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31. 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 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 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 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

alone but it comprehends both production of evidence and

arguments. The scheme of the Code, as embodied, in Order XVIII

Rule 2, particularly, sub-rules (1), (2), (3) and (3A) and Order XVIII

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 insist on it.

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32. In light of the legal position and the factual matrix of the

case, we are unable to accept the contention of the learned senior

counsel for the appellants that the trial court violated the fundamental

principle of law, i.e. "one who hears must decide 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 justified in

proceeding ex parte against the defendants on March 17, 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 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 and a decision of Nagpur High Court in

Kashirao Panduji v. Ramchandra Balaji7. It was submitted that the

judgment of the Nagpur High Court in Kashirao Panduji7 was binding

on the trial court as at the relevant time, Mandaleshwar was within

the jurisdiction of the Nagpur High Court.

6 AIR (1922) Bom 345

7 AIR (35) 1948 Nag 362

24

34. The contention, at the first blush, appears to be 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 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 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 and it is for this reason that the application made by

the defendants under this provision was rejected by the trial court.

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 defendants is covered by the

25

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 Sakharam6 on which reliance has been

placed by the learned senior counsel for the appellants, does not

support the legal position canvassed by him. Rather in Radhabai

Bhaskar Sakharam6, 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 :

".........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

no right to be heard................."

(Emphasis supplied)

36. The Nagpur High Court in the case of Kashirao Panduji7

referred to the decision of Bombay High Court in Radhabai Bhaskar

Sakharam6 and observed as under:

"14. The suit was just in its initial stage. In Radhabai v.

Anant Pandurang A.I.R. 1922 Bom. 345 it is held that if a

party appears before the case is actually heard, he has a

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 both

parties have full opportunity of placing their case and their

evidence before the Court."

26

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 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 dismissing the defendants' appeal directed the

trial court to conclude the trial of the suit expeditiously and finally

dispose 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 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 a matter of fact, nine interlocutory applications were

filed by the defendants after the hearing of the suit was expedited by

27

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 February 25, 2005, the 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 plaintiff's witnesses. On that date, the Advocate for

the defendants stated that he has no authority to cross-examine

plaintiff's 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 defendants' right to cross-examine the three witnesses of

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 called twice. It was then that the trial court

directed the matter to proceed ex parte. The 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.

28

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. In this

regard, reference was made to the 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.

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 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 17, 2005. On March 17, 2005, none appeared for

the defendants and the plaintiff decided not to examine more

8 (2007) 11 SCC 800

29

witnesses. It was in this situation that the trial court ordered the suit to

proceed ex parte. The trial court heard the arguments of the plaintiff's

advocate and reserved the judgment for pronouncement. Is the

course adopted by the trial court impermissible 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 :

"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

other order as it thinks fit.

Explanation.--Where the evidence 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,

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 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 situation, the court may

make an order that suit shall be heard ex parte. The legal position

with regard to Order IX Rule 6 has been explained by a 3-Judge

30

Bench of this Court in the case of Arjun Singh3, 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 cases: (1) The day on which the

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 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

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.........."

41. The following observations made by this Court in Arjun

Singh3 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:

".........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 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

31

claim to be relegated to the position 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, 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 defendant appeared after the

conclusion of the hearing but 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 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 further rights

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 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 aside by application under O.

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 O. IX,

r.7.........."

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 entered in

32

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

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 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

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 India8 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 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 plaintiff's evidence. On May 29, 2002, none appeared for the

defendants and the matter 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

33

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 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 parte 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 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

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 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 order. The High Court

did not even consider the plea of the 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.

34

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 (IA No. 11),

(iii) for the leave of the court to deliver interrogatories under 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 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 rejection of these

applications in the appeal against the decree. The appellants

challenged the orders rejecting these applications before the High

Court in the first appeal and raised contentions in this regard but the

High Court did not advert to these contentions at all. Learned senior

counsel submitted that rejection of these applications and non-

35

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

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 :

"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.

...........

(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.

........."

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 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

36

adopted. In view of this, we are not persuaded to permit the

appellants to challenge the 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

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 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 plaintiff's suit

could not have been decreed. The argument of the learned senior

counsel is that on behalf of the plaintiff, three witnesses 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 the case of F.D.C. Limited v.

37

Federation of Medical Representatives Association India & Ors.9 and

a decision of this Court in 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 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 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 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

plaintiff's suit.

49. Order XVIII Rule 4 of the Code provides for the mode of

recording the evidence. The said provision reads as follows :

9 AIR 2003 Bom 371

10 (2004) 1 SCC 702

38

"4. Recording of evidence.--(1) In every case, the

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:

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.

(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:

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

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 form

part of the record of the suit.

(4) The Commissioner may record such remarks as it

thinks material respecting the demeanour of any witness

while under examination.

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.

(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.

39

(6) The High Court or the District Judge, as the case

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

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."

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.--In

cases in which an appeal is allowed, the evidence of each

witness shall be,--

(a) taken down in the language of the Court,-

(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

(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."

51. 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 a witness is now mandated to be

40

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 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 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

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 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 :-

41

"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

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)

SCC 71 on the settled principles of interpretation of

statutes that the Court must proceed on the assumption

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 that "An act

has to be read as a whole, the different 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 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 appealable cases, the affidavit can be taken

on record by taking resort to the provisions of law

contained in Rule 13 of Order XVIII. In 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 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

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

appealable cases.

8. In other words, 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

42

ordered to form part of the evidence unless the deponent

thereof enters the witness box and confirms that the

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

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-

examination 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 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 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 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 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 of the Court, the litigants and the

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 of

avoiding delay in disposal of the suits, and there being no

conflict disclosed between the provisions of Rules 4 and 5

43

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

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 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

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 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 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 opposite party by the party who calls

him for evidence.

44

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 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 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 difference between Rule 4 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 :

"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. What thus

remains viz. cross-examination or re-examination in the

appealable cases will have to be considered in the manner

45 laid down in the rules, subject to the other sub-rules of Rule

4."

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 harmoniously. In paragraph 33 of the Report, this

Court stated as follows :

"33. The matter may be considered from another angle.

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 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 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-

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 court."

57. It is pertinent to notice that in Ameer Trading Corpn.

Ltd.10, a decision of the Rajasthan High Court in the case of Laxman

Das v. Deoji Mal & Ors.11 was cited wherein the view was taken that

11 AIR 2003 Rajasthan 74

46

in the appealable cases, Order XVIII Rule 4 of 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 Das11 and the decision of Bombay High

Court in F.D.C. Limited9 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 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 Court in the case of

Laxman Das11 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 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

47

quoting paragraphs 7 and 8 of the decision of the Bombay High Court

in F.D.C. Limited9, the Court has not said that they 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 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 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 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 witness is

48

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 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

has to make himself available for cross-examination in the witness

box, unless defendant's right to cross examine him has 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 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 if these three witnesses

did not enter the witness box.

49

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--M/s.

M.S.S. Food Products. Relying upon a decision of the Bombay High

Court in the case of Bhagvan Manaji Marwadi & Ors. v. Hiraji

Premaji Marwadi12, it was urged that a proprietorship firm cannot sue

in its name.

60. Rule 10 of Order XXX of the Code reads as follows :

"10. Suit against person carrying on business in name

other than his own.--Any person carrying on business

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

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 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 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:

12 AIR 1932 Bom 516

50

"Messrs. M.S.S. Food Products,

Plot No. D, Sector-E,

Sanver Road Industrial Area, Indore,

Through - Proprietor - Nilesh Vadhwani,

Son of Shri Ashok Vadhwani, aged 27 years,

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 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. 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 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

51

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 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

earlier part of our judgment. The judgment of the Bombay High Court

in the case of Bhagvan Manaji Marwadi12 is of no help 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 filed by the

plaintiff which 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 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 Gopal Krishnaji

52

Ketkar v. Mahomed Haji Latif and Ors.13 It was also 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 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 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 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.

65. We are not persuaded by the submission of learned

senior counsel for the appellants. The defendants did not cross-

13 AIR 1968 SC 1413

53

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 plaintiff's

witnesses on these aspects. But, unfortunately, they did not avail of

that opportunity. In the 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 has been committed

by the trial court in decreeing plaintiff's 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 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 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 kept the

54

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 transfer of the 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

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 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, the

arguments had already been advanced; the judgment was reserved

and kept for pronouncement. The contention of the learned senior

counsel is noted to be rejected.

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 plaintiff's witnesses, the court could have

at best imposed cost on the defendants and given them an

opportunity to lead evidence and contest the suit on merits. Had this

55

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 the case. The contention of the learned senior

counsel for the appellants is that the judgment and decree passed by

the trial court is not proportionate to the default on the part of the

defendants and, accordingly, liable to be set aside.

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 trial of the suit

speedily. On February 28, 2005, the matter was fixed before the trial

court for cross-examination of plaintiff's 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 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 plaintiff's

witnesses. On the next date, the defendants or their advocates even

56

did not appear. The court was constrained to proceed ex parte

against 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 M/s. Shiv Cotex v. Tirgun Auto

Plast P. Ltd. & Ors. (Civil Appeal No. 7532 of 2011) decided 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 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 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 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.........."

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

57

determination of `civil disputes' governed by the procedure prescribed

in the Code is not at all necssary. The 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

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 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 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 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

58

by their conduct and 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

thousand).

...........................J.

(Aftab Alam)

...........................J.

(R.M. Lodha)

NEW DELHI.

NOVEMBER 25, 2011.

59