REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.    10112      OF 2011 (Arising out of SLP (Civil) No. 27180 of 2008)

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  1

‘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  

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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

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(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  

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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  

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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  

18

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  

21

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.  

22

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.

23

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.   

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(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 :-

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“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

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“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  

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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   

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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  

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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.

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