2011 Supreme(SC) 1101

2011 (8) Supreme 350
SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
Rasiklal Manickchand Dhariwal & Anr. — Appellants
versus
M/s. M.S.S. Food Products — Respondent
Civil Appeal No. 10112 of 2011
(Arising out of SLP (Civil) No. 27180 of 2008)
Decided on : 25-11-2011

IMPORTANT POINTS
1. 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.
2. 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.
3. Where after due service of summons, the defendant does not appear when the suit is called on for hearing. In that situation, court may make an order that suit shall be heard ex parte.

Headnote:Code of Civil Procedure,1908- Order XVIII Rule 15 -Scope and ambit of- 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 trial of a suit and to take the suit forward from the stage predecessor Judge left the matter- The trial of a suit is a long drawn process and in the course of trial, Judge may get transferred; he may retire or in an unfortunate event like death, he may not be in a position to conclude the trial- The Code has taken care by this provision that in such event the progress that has already taken place in the hearing of the suit is not set at naught (Para 25)

        Code of Civil Procedure,1908- Order XVIII Rule 15 - Power to deal with evidence taken before another Judge -This provision comes into play in various situations such as where part of 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 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 (Para 25)

        Code of Civil Procedure,1908-Order XVIII Rule 2 - Appeal against ex parte decree passed by trial court and affirmed in first appeal by High Court on plea that successor Judge who delivered the judgment had not given them an opportunity of oral arguments -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- Instantly 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, Judge ordered the suit to proceed ex parte against the defendants; heard the arguments of plaintiff and closed the suit for pronouncement of judgment on March 28, 2005- In these facts, defendants, having lost their privilege of cross-examining the plaintiff’s witnesses and of advancing oral arguments, now could not be permitted to raise any grievance that successor Judge who delivered the judgment had not given them an opportunity of oral arguments (Para 30)

        Code of Civil Procedure,1908- Order IX Rule 7 - Appeal against ex parte decree passed by trial court and affirmed in first appeal by High Court on plea that proceeding ex parte under Order IX Rule 7 of the Code did not take away the defendants’ right to participate further in the proceedings of the suit-Held 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- Adjournment for the purposes of pronouncing judgment is no adjournment of the “hearing of the suit”- On March 17, 2005, trial court in the instant case closed the evidence of the plaintiff as was requested by the plaintiff; ordered the suit to proceed ex parte as defendants failed to appear on that date; heard the arguments of the Advocate for the plaintiff; and kept the matter for pronouncement of judgment on March 28, 2005- In view of the facts of case , Order IX Rule 7 of the Code had no application at all and it was for this reason that application made by defendants under this provision was rejected by trial court (Para 34)

        Code of Civil Procedure,1908- Order IX Rule 7-Applicability of- Once the suit is closed for pronouncement of judgment, there is no question of further proceedings in the suit-Merely, because defendants continued to make application after application and trial court heard those applications, it could not be said that such appearance by defendants was covered by expression “appeared on the day fixed for his appearance” occurring in Order IX Rule 7 of the Code and thereby entitling them to address court on the merits of the case (Para 35)

        Code of Civil Procedure,1908- Appeal against ex parte decree passed by trial court and affirmed in first appeal by High Court –Held nine interlocutory applications were filed by defendants after the hearing of the suit was expedited by High Court and 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, trial court endeavoured to dispose off the suit speedily but defendants continued to make application after application- It was in this backdrop that on February 28, 2005, trial court rejected defendants’ applications and asked Advocate for defendants to cross-examine plaintiff’s witnesses- On that date, Advocate for defendants stated that he had no authority to cross-examine plaintiff’s witnesses, and the court may do whatever it wants- It was in this background that trial court closed the defendants’ right to cross-examine the three witnesses of plaintiff and fixed the matter for March 17, 2005-On that day, nobody appeared on behalf of defendants although the matter was called twice-It was then that 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- Said facts lead to irresistible conclusion that defendants forfeited their right to address the trial court on merits-Where after due service of summons, the defendant does not appear when the suit is called on for hearing- In that situation, court may make an order that suit shall be heard ex parte-Trial court could not 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 (Paras 37 to 42)

        Trade Marks Act, 1999 –Suit for passing off-Appeal against ex parte decree passed by trial court and affirmed in first appeal by High Court –Plea that statutory excise record having not been filed by plaintiff ,adverse inference ought to have been drawn against plaintiff that plaintiff never manufactured pan masala/gutka under the brand “Malikchand” and , there was no question of restraining defendants from using their brand “Manikchand” in the passing off action-Held defendants did not cross-examine plaintiff’s witnesses despite opportunity having been granted to them- There could have been some merit in the submissions, had the defendants cross-examined plaintiff’s witnesses on these aspects- But, unfortunately, they did not avail of that opportunity- In the circumstances, if the trial court and High Court accepted the plaintiff’s evidence which remained un-rebutted and unchallenged and also relied upon the documents produced by plaintiff, it could not be said that any illegality had been committed by the trial court in decreeing plaintiff’s suit or any illegality had been committed by High Court in dismissing the first appeal-Appeal dismissed (Paras 65 to 71)

       Facts of the Case :

        A. M/s. M.S.S. Food Products—respondent ‘plaintiff’ sued the appellants defendants’ in the court of 1st Additional District Judge, 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. Suit was decreed ex parte by Trial Court.

        B. Against the ex parte decree defendants preferred first appeal before the High Court. The Division Bench of that Court vide its judgment dismissed the defendants’ first appeal except the relief in respect of profits relating to damages. In other words, the High Court maintained the judgment and decree of the trial court insofar as reliefs granted in paragraph 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/-

        C. Present appeal has been filed against ex parte decree passed by trial court and affirmed in first appeal by High Court.

       Findings of the Court :

        A. Nine interlocutory applications were filed by defendants after the hearing of the suit was expedited by High Court and 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, trial court endeavoured to dispose of the suit speedily but defendants continued to make application after application. It was in this backdrop that on February 28, 2005, trial court rejected defendants’ applications and asked Advocate for defendants to cross-examine plaintiff’s witnesses. On that date, Advocate for defendants stated that he had no authority to cross-examine plaintiff’s witnesses, and the court may do whatever it wants. It was in this background that trial court closed the defendants’ right to cross-examine the three witnesses of plaintiff and fixed the matter for March 17, 2005.On that day, nobody appeared on behalf of defendants although the matter was called twice.It was then that trial court directed the matter to proceed ex parte.

        B. 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. Said facts lead to irresistible conclusion that defendants forfeited their right to address the trial court on merits.Where after due service of summons, the defendant does not appear when the suit is called on for hearing- In that situation, court may make an order that suit shall be heard ex parte. Trial court could not 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. Appeal was dismissed.