# 14 (ADDL.) S.C.R. 1141 RASIKLAL MANICKCHAND DHARIWAL & ANR v. M/S. M.S.S. FOOD PRODUCTS - **Citation:** [2011] 14 S.C.R. 1141 - **Court:** Supreme Court of India - **Decided:** 2011-11-25 - **Case number:** Civil Appeal No. 10112 of 2011 - **Bench:** Aftab Alam, R.M.; Lodha - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-1141-rasiklal-manickchand-dhariwal-anr-v-m-s-m-s-s-food-products-27370 - **Pages:** 63 ## Headnote Code of the Civil Procedure, 1908: A B Or. 18 r.15, 2, 2(1), (2), (3) and (3A), 7, 4, 5 and 6(1)(a); c Or. 9 r. 7; Or. 20 r. 1 - Ex parte decree - Set aside in appeal - Challenge to - On facts, respondent-plaintiff filing suit for passing off action, declaration and injunction against appellants-defendants as also application for temporary injunction - Ad interim ex parte injunction granted in favour D of plaintiff - Appeal by defendants - High Court dismissed the same and directed the trial court to conclude the trial of the suit expeditiously and finally dispose it of, within the stipulated period - In complete disregard of the said direction, the defendants filing application after application - E Subsequently, due to non-appearance of defendants their right to cross examine the plaintiff's witness were closed and matter was fixed for pronouncement of judgment and on the said date none appeared and defendants were proceeded ex parte - Plaintiff closed its evidence, the trial court heard the F arguments of the plaintiff ex-parte and fixed the matter for pronouncement of judgment - Defendants filing application for setting aside the said ex parte order - Meanwhile the presiding officer who heard the arguments got transfeffed and new Presiding officer assumed the charge - Trial court dismissing the application and decreed the suit against G defendants - Appeal filed by defendants against the ex parte decree dismissed by the High Court-Appeal before Supreme Court - Case of defendants that judgment passed by Presiding Officer of trial court and upheld by High Court was 1141 H 1142 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A nullity as it was delivered by a Judge who never heard the matter; that the predecessor Judge fixed the date for pronouncement of judgment but she never delivered judgment - Held: Defendants, having lost their privilege of cross-examining the plaintiff's witnesses and of advancing oral B arguments, forfeited their right to address the trial court on merits - Successor Judge can deliver the judgment without oral arguments where one party has already lost his right of making oral arguments and the other party does not insist on it - It cannot be said that the trial court violated the c fundamental principle of law-one who hears must decide the case - Plaintiff closed his evidence and defendants failed to appear, the trial court did not commit any error in ordering the suit to proceed ex parte; hearing the arguments and closing the suit for pronouncement of judgment - Once the suit is 0 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 saia that such appearance by the defendants is covered by the expression "appeared on the day fixed for his appearance E occurring in Or. 9 r. 7 and thereby entitling them to addres~ the court on the merits of the case - Or. 9 r. 7 has nc application - It cannot be said that any prejudice was causeo to the defendants if these witnesses did not enter the witness box - Defendants by their conduct and tactics disentitleo F themselves from any further indulgence by the trial court - Thus, the trial court did not act illegally or with material irregularity or irrationally or in an arbitrary manner in passing the orders closing the right of the defendants to cross-examine plaintiff's witnesses and fixing the matter for pronouncement G of judgment. Or. XVIII r. 15 - Nature of - Held: Provision contained in r. 15 Or. XVIII is a special provision - It enables the successor Judge to proceed from the stage at which his predecessor left H the suit - The idea behind this provision is to obviate re- RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1143 M.S.S. FOOD PRODUCTS recording of the evidence or re-hearing of the suit where a A Judge is prevented by death, transfer or other cause from concluding the trial of a ## Text _Characters 0–39,998 of 125,153. This is a partial read: ask again with offset=39998 for what follows._ [2011] 14 (ADDL.) S.C.R. 1141 RASIKLAL MANICKCHAND DHARIWAL & ANR. v M/S. M.S.S. FOOD PRODUCTS (Civil Appeal No. 10112 of 2011) NOVEMBER 25, 2011 [AFTAB ALAM AND R.M.; LODHA, JJ.] Code of the Civil Procedure, 1908: A B Or. 18 r.15, 2, 2(1), (2), (3) and (3A), 7, 4, 5 and 6(1)(a); c Or. 9 r. 7; Or. 20 r. 1 - Ex parte decree - Set aside in appeal - Challenge to - On facts, respondent-plaintiff filing suit for passing off action, declaration and injunction against appellants-defendants as also application for temporary injunction - Ad interim ex parte injunction granted in favour D of plaintiff - Appeal by defendants - High Court dismissed the same and directed the trial court to conclude the trial of the suit expeditiously and finally dispose it of, within the stipulated period - In complete disregard of the said direction, the defendants filing application after application - E Subsequently, due to non-appearance of defendants their right to cross examine the plaintiff's witness were closed and matter was fixed for pronouncement of judgment and on the said date none appeared and defendants were proceeded ex parte - Plaintiff closed its evidence, the trial court heard the F arguments of the plaintiff ex-parte and fixed the matter for pronouncement of judgment - Defendants filing application for setting aside the said ex parte order - Meanwhile the presiding officer who heard the arguments got transfeffed and new Presiding officer assumed the charge - Trial court dismissing the application and decreed the suit against G defendants - Appeal filed by defendants against the ex parte decree dismissed by the High Court-Appeal before Supreme Court - Case of defendants that judgment passed by Presiding Officer of trial court and upheld by High Court was 1141 H 1142 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A nullity as it was delivered by a Judge who never heard the matter; that the predecessor Judge fixed the date for pronouncement of judgment but she never delivered judgment - Held: Defendants, having lost their privilege of cross-examining the plaintiff's witnesses and of advancing oral B arguments, forfeited their right to address the trial court on merits - Successor Judge can deliver the judgment without oral arguments where one party has already lost his right of making oral arguments and the other party does not insist on it - It cannot be said that the trial court violated the c fundamental principle of law-one who hears must decide the case - Plaintiff closed his evidence and defendants failed to appear, the trial court did not commit any error in ordering the suit to proceed ex parte; hearing the arguments and closing the suit for pronouncement of judgment - Once the suit is 0 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 saia that such appearance by the defendants is covered by the expression "appeared on the day fixed for his appearance E occurring in Or. 9 r. 7 and thereby entitling them to addres~ the court on the merits of the case - Or. 9 r. 7 has nc application - It cannot be said that any prejudice was causeo to the defendants if these witnesses did not enter the witness box - Defendants by their conduct and tactics disentitleo F themselves from any further indulgence by the trial court - Thus, the trial court did not act illegally or with material irregularity or irrationally or in an arbitrary manner in passing the orders closing the right of the defendants to cross-examine plaintiff's witnesses and fixing the matter for pronouncement G of judgment. Or. XVIII r. 15 - Nature of - Held: Provision contained in r. 15 Or. XVIII is a special provision - It enables the successor Judge to proceed from the stage at which his predecessor left H the suit - The idea behind this provision is to obviate re- RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1143 M.S.S. FOOD PRODUCTS recording of the evidence or re-hearing of the suit where a A Judge is prevented by death, transfer or other cause from concluding the trial of a suit <,ind to take the suit forward .from the stage the predecessor Judge left the matter - Care is taken that in such event the progress. that has already taken place in the hearing of the suit is not set at naught - B Expression "from the stage at which his predecessor left it" is wide and comprehensive enough io take in its fold all situations and stages of the suit-'- It cannot be narrowed down by any exception - The principle that one who' Hears must decide the case, is not applicable to all situations in the c hearing of the suit ...;. Hearing of a suit does not mean oral arguments alone but it comprehends both production of evidence and arguments - Hearing of the suit begins when evidence in suit begins and was concluded by pronouncement of judgment. Or. XVIII r. 2 - Statement and production of evidence - Purpose of - Held: Is to give an option to the parties to argue· their case when the evidence is conducted - Parties themselves decide whether they would avail of this privilege D and if they do not avail, they do so at their peril. E Or. XVIII r. 2(1) and (2) - Expressions "state his case", "produce his evidence" and "address the court generally on the whole case" occurring therein - Held: Said expressions have different meaning and connotation. F Or. IX r. 7 - Conclusion of hearing of the suit and the suit closed for judgment - Applicability of Or. IX r. 7 - Held: Is not applicable - Or. IX r. 7 pre-supposes the suit having been adjourned for hearing .:.... Adjournment for the purposes of pronouncing judgment is no adjournment of the "hearing of G the suit''. Or. IX r. 6 (1)(a) - After due seNice of summons, the defendant not appearing when the suit is called on for hearing - Effect of - Held: Order might be passed to hear the suit ex H 1144 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A parte - Said provision does not in any way impinge upon the power of the court to proceed for disposal of the suit in case both the parties or either of the parties fail to appear as provided in Or. IX. · 8 Or. XVIII r. 4 - Recording of evidence - Purpose and objective of - Held: Is speedy trial of the case and to save precious time of the court - Examination-in-chief of a witness is now mandated to be made on affidavit with a copy thereof to be supplied to the opposite party - Cross-examination and re-examination of witness shall be taken either by the court C or by Commissioner appointed by it - In a case in which appeal is allowed, r. 5 provides that the evidence of each witness shall be taken down in writing by or in the presence and superintendence of the Judge - There is no requirement in Or. XVIII r 5 that in appealable cases, the witness must D enter the witness box for production of his affidavit and formally prove the affidavit - Such witness is required to enter the witness box in his cross-examination and, if necessary, re-examination. E Or. XXX r. 10- Suit against person carrying on business in name other than his own - Held: Is an enabling provision - It provides that a person carrying on business in a name or · style other than his own name may be sued in such name or style as if it were a firm name - As a necessary corollary, the F said provision does not enable a person carrying on business in a name or style other than in his own name to sue in such name or style. Or. XX r 1 - Matter fixed for pronouncement of judgment - Plea that plaintiff not arguing the matter as required by Or. G XX r. 1 - Effect of, on the decision of the suit - Held: The plaintiffs had already advanced the arguments and the judgment was reserved and kept for pronouncement - Judgment could not he pronounced on that day and the matter, thereafter, was fixed on various dates on the diverse H RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 114.5 M.S.S. FOOD PRODUCTS applications made by the defendants - It cannot be said that A the trial judge ought to have dismissed the suit. Interlocutory applications - Contentions raised by the defendants not considered by the High Court - Challenge made to the orders passed by the trial court on the 8 interlocutory applications before this Court and arguing that trial court erred in not adhering to the pre-trial procedures - Permissibility of - Held: Not permissible - The proper course available to the appellants was to bring to the notice of th~ High Court the aspect by filing a review application - Such C course was never adopted. Evidence - Secondary evidence - Trial court granting plaintiff to lead secondary evidence - Correctness of - Held: Trial court did not commit any error in permitting the plaintiff to lead secondary evidence when the original assignment D deed was reportedly lost. Administrative law - Doctrine of proportionality - Applicability of - To civil disputes' governed by the Code of Civil Procedure '- Held: Is not necessary - Code is E comprehensive and exhaustive in respect of the matters provided therein - Parties must abide by the procedure prescribed therein which is extremely rational, reasonable and elaborate - Where the Code is silent, the court acts according to justice, equity and good conscience - If the trial court F . commits illegality or irregularity in exercise of its judicial discretion, such order is always amenable to correction by a higher court in appeal or revision or by a High Court in its · supervisory jurisdiction. Respondent-plaintiff filed a suit against the G appellants-defendants before the Additional District Judge for passing off action, declaration and injunction a~ also filed an application for temporary injunction. An ad interim ex parte injunction was granted in favour of the plaintiff. Thereafter, the same was made absolute till the H 1146 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R. A disposal of the suit. The defendant then filed an appeal. The High Court while dismissing the appeal directed the trial court to conclude the trial of the suit expeditiously and dispose it of within the stipulated period. Aggrieved, the defendants filed Special Leave Petition before this B Court challenging the order of temporary injunction granted by the trial court and upheld in appeal by the High Court. During the course of proceedings in the suit many interlocutory applications were filed by the defendants and the plaintiff. This Court dismissed c defendants' appeal, directing the trial court to comply with the direction of the High Court and complete ti1e trial and disposal of the suit within six months from that date. However, the defendants continued to make application after application stalling the effort of the trial court in that 0 direction. On February 28, 2005, the trial court rejected the defendants' applications and asked the advocate for the defendants to cross-examine plaintiff's witnesses. The advocate for the defendants stated that he had no authority to cross-examine plaintiff's witnesses; and he is not in position to do anything and the court may do E whatever it wanted. The trial court closed the defendants' right to cross-examine the plaintiff's witnesses and fixed the matter for March 17, 2~05. On that date, nobody appeared on behalf of the defendants and the matter was directed to proceed ex parte. The plaintiff closed the F evidence and the trial court heard the arguments of the plaintiff and reserved the judgment and fixed the matter for March 28, 2005 for pronouncement of judgment. It appears that later on the advocate for the defendants appeared on that date and signed the order sheet. G Thereafter, the arguments were heard. Though the matter was fixed for pronouncement of judgment on March 28, 2005, meanwhile, the defendants moved an application for setting aside the ex parte order. Even thereafter the defendants continued to make applications. The " H judgment was not pronounced on the date fixed or RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1147 M.S.S. FOOD PRODUCTS immediately thereafter. The Presiding Officer who had A heard the arguments got transferred and the new Presiding Officer assumed the charge. Even thereafter the defendants kept on making application after application and the same were dismissed~ Thereafter, the trial court decreed the plaintiff's suit. The defendants filed B an appeal against ex parte decree. The Division Bench of the High Court dismissed the appeal except the relief in respect of profits relating to damages. Therefore, the defendants filed the instant appeal. Dismissing the appeal, the Court c HELD: 1.1 Order XX Rule 1 of the Code of the Civil Procedure, 1908 provides that the court, after the case has been heard, shall pronounce the judgment in an open court either at once or on some future date after fixing a 0 day for that purpose of which due notice shall be given to the parties or their pleaders. The hearing of a suit begins on production of evidence by the parties and suit gets culminated on pronouncement of the judgment. . Under Order XVIII Rule 1 of the Code, the pla-intiff has a · E right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by him the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. F On the day fixed for the hearing of the suit or any other day to which the hearing is adjourned, as per the provisions contained in Order XVIII Rule 2, party having the right to begin is required to state his case and produce his evidence in support of issues which he is bound to prove. Under Or(:ler XVIII, Rule 2 sub-rule (2), the G other party shall then state his case and produce his evidence. Under sub-rule (3A) of Rule 2 of Order XVIII, the parties in suit may address oral arguments in a case and may also avail opportunity of filing written arguments before conclusion of oral arguments. Rule 15 of Order H 1148 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A XVIII provides for the contingency where the Judge before whom the hearing of the suit has begun is prevented by death, transfer or other cause from concluding the trial of a suit. This provision enables the successor Judge to proceed from the sta']e at which his B predecessor left the suit. The provision contained in Rule 15 of Order XVIII of the Code is a special provision. The idea behind this provision is to obviate re-recording of the evidence or re-hearing of the suit where a Judge is prevented by death, transfer or other cause from C concluding the trial of a suit and to take the suit forward from the stage the predecessor Judge left the matter. The trial of a suit is a long drawn process and in the course of trial, the Judge may get transferred; he may retire or in an unfortunate event like death, he may not be in a 0 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 E parties is closed and the suit is ripe for oral arguments or where the evidence of the parties has been recorded and the Judge has also heard the oral arguments of the parties and fixed the matter for pronouncement of judgment. The expression "from the stage at which his F predecessor left it" is wide and comprehensive enough to take in its fold all situations and stages of the suit. No category or exception deserves to be carved out while giving full play to Rule 15 of Order XVIII of the Code which amply empowers the successor Judge to proceed with G the suit from the stage at which his predecessor left it. [Para 25] [1170-E-H; 1171-A-G] . Gu//apalli Nageswara Rao and Ors. v. Andhra Pradesh State Road Transporl Corporation and Anr. (1959) Supp 1 H SCR 319 - referred to. RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1149 M.S.S. FOOD PRODUCTS 1.2. The principle that one who hears must decide the A ~ase, with reference to hearing by a quasi judicial forum is not applicable to all situations in the hearing of the suit. "Hearing of the suit" as understood is not confined to oral hearing. Hearing of the suit begins when the evidence in the suit begins and is concluded by the pronouncement B of judgment. The Code contemplates that at various stages of the hearing of the suit, the Judge may change or he may be prevented from concluding the trial and in that situation, the successor Judge must proceed in the suit. from the stage the predecessor Judge has left it. c (Para 27] (1172-0-F] American Baptist Foreign Mission Society, by its Attorney Rev. W.L. Ferguson, Jaladi Ayyappaseti and Anr. and Gurram Seshiah and Anr. v. Amalanadhuni Pattabhiramayya and Ors. 48 Ind. Cas.859 - referred to. D 1.3. Order XVIII Rule 2 of the Code gives an option to the parties to argue their case when the evidence is conducted and it is for them to decide whether they would avail themselves of this privilege and if they do not, they E do so at their peril. In the instant case, the right of the appellants-defendants to cross-examine respondentplaintiff was closed on February 28, 2005. The matter was then fixed for March 17, 2005 for the remaining evidence of the respondent. On that day, none appeared for the defendants although the matter was called out twice. In F that situation, the Judge ordered the suit to proceed ex parte against the defendants; heard the arguments of the plaintiff and closed the suit for pronouncement of judgment on March 28, 2005. In these facts, the defendants, having lost their privilege of cross-examining G the respondent's witnesses and of advancing oral arguments, now cannot be permitted to raise any grievance that the successor Judge who delivered the judgment did not given them an opportunity of oral arguments. [Para 30] (1175-E-H; 1176-A] H 1150 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R. A Harji Mal and Anr. v. Devi Ditta Mal and Ors. AIR (1924) Lah 107 - approved. 1.4. The expressions "state his case", "produce his evidence" and "address the court generally on the whole 8 case" occurring in Order XVIII Rule 2, sub-rule (1) and (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 C his case. The general outline by a party before letting in evidence is intended to help the court in understanding the evidence likely to be followed by a party in support of his case. After case is stated by a party, the evidence is produced by him to prove his case. After evidence has D been produced by all the parties, a right is given to the parties to make oral arguments and also submit written submissions, if they so desire. The hearing of a suit does not mean oral arguments alone but it comprehends both production of evidence and arguments. The scheme of E the Code, as embodied, in Order XVIII Rule 2, particularly, sub-rules (1 ), (2), (3) and (3A) and Rule 15 enables the successor Judge to deliver the judgment without oral arguments where one party has already lost his right of making oral arguments and the other party does not F insist on it. It cannot be said that the trial court violated the fundamental principle of law, i.e. "one whoihears must decide the case". [Paras 31 and 32] [1176-8-G] 2.1. In the first place, once the hearing of the suit is concluded; and the suit is closed for judgment, Order IX G Rule 7 of the Code has no application at all. The very language of Order IX Rule 7 makes this c!ear. This provision pre-supposes the suit having been adjourned for hearing. The courts, number of times have said that adjournment for the purposes of pronouncing judgment H RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1151 M.S.S, FOOD PRODUCTS is no adjournment of the "hearing of the suit". In the. A , instant case, the trial court on March 17, 2005, did four things, namely, closed the evidence of the plaintiff as was requested by the plaintiff; ordered the suit to proceed ex parte as defendants failed to appear on that date; heard the arguments of the Advocate for the plaintiff; and kept B the matter for pronouncement of judgment on March 28, 2005. Thus, Order IX Rule 7 of the Code has no application at all and that the application made by the defendants under this provision was rejected by the trial court. Secondly, once the suit is closed for c pronouncement of judgment, there is no question of further proceedings in the suit. Merely, because the defendants continued to make application after application and the trial court heard those applications, it cannot be said that such appearance by the D defendants is covered by the expression "appeared on the day fixed for his appearance" occurring in Order IX Rule 7 of the Code and thereby entitling them to address the court on the merits of the case. (Paras 34 and 35] (1177-D-H; 1178-A-B] 2.2. There is no quarrel to the legal position that if a party appears before the case is actually heard and if he has otherwise not disqualified himself from being heard, E he has a right to be heard as also the general observations made in Kashirao Panduji that the F provisions of Order 9 are never meant to be penal provisions, and it is only in clear cases of gross negligence and misconduct that a party should be deprived of the opportunity of having a satisfactory . disposal of the case which evidently can only be done G when both parties have full opportunity of placing their case and their evidence before the Co~rt but each case has to be seen in its own facts. In the ihstant case, the _High· Court in its order dated May 11, 2004 while dismissing the defendants' appeal directed the trial. court H 1152 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A to conclude the trial of the suit expeditiously and finally dispose of it, preferably within the stipulated period. Unfortunately, the suit could not be disposed of by the trial court as directed by the High Court. This Court while dismissing the defendants' appeal arising from the High B Court's order, directed the trial court to comply with the direction of the High Court and complete the trial and dispose of the suit within six months from that date; In complete disregard of the said direction, the defendants continued to make application after application. Nine c interlocutory applications were filed by the defendants after the hearing of the suit was expedited by the High Court and the order of this Court reiterating the expeditious disposal of the suit. After the direction was issued by this Court, the trial court endeavoured to 0 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 E stated that he had no authority to cross-examine plaintiff's witnesses; and he is not in position to do anything and the court may do whatever it wants. Thus, the trial court closed the defendants' right to cross-examine the three witnesses of the plaintiff and as regards remaining F witnesses of the plaintiff, the trial court fixed the matter for the next date on which nobody appeared on behalf of the defendants although the matter was called twice. It was then that the trial court directed the matter to be proceeded ex parte. The plaintiff closed its evidence and G the trial court heard the arguments of the plaintiff ex-parte and closed the suit for pronouncement of judgment. Thus, the defendants forfeited their right to address the trial court on merits. The course adopted by the trial court is permissible in law. In a situation like this where the H plaintiff closed his evidence and the defendants failed to RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1153 M.S.S. FOOD PRODUCTS appear, Order XVII Rule 2 was clearly attracted, in view A of Order XVII Rule 2, the trial court was required tc:r proceed to dispose of the suit in one of the modes prescribed in Order IX. [Paras 37, 40] [1179-A-G; 1180-AB; 1181-E] Radhabai Bhaskar Sakharam v. Anant Pandurang 8 Pandit and Anr. AIR (1922) Born 345; Kashirao Panduji v. Ramchandra Bataji AIR (35) 1948 Nag 362 - referred to. 3. Order IX Rule 6 (1)(a) lays down the procedure 0 where after due service of summons, the defendant does C not appear when the suit is called on for hearing. In that situation, the court may make an order that suit shall be heard ex parte. In the instant case, the trial court cannot be said to have committed any error in ordering the suit to proceed ex parte; hearing the arguments and closing D the suit for pronouncement of judgment. What is provided by Rule 6 is that each case fixed for any day shall be entered in advance immediately upon a date or adjourned date being fixed and such entry would show the purpose fo~ which it is set down on each date. The E cases should be classified in such a manner as to show at a glance the nature of work fixed for the particular date. Rule 6 basically provides for a procedure which is required to be followed in maintaining the register for the purpose of the dates fixed in the matter and the purpose F for which the date has been fixed. The said provision does not in any way impinge upon the power of the court to proceed fdr disposal of the suit in case both the parties or either of the parties fail to appaar as provided in Order IX of the Code. [Paras 40, 42] [1181-F; 1183-E-H; 1184-A] G Sahara India and Ors.· v. M. C. Aggawal HUF (2007) 11 SCC 800: 2007 (2) SCR 1037 - distinguished. Arjun Singh v. Mohindra Kumar and Ors. (1964) 5 SCR 946 - relied on. H 1154 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R. A 4. In the counter affidavit filed by the respondentplaintiff, nothing was said about the statement made in the synopsis. However, in case the contentions raised by the appellants-defendants were not considered by the High Court, the proper course available to the appellants s was to bring to the notice of the High Court the aspect by filing a review application. Such course was never adopted. Thus, the appellants cannot be permitted to challenge the orders passed by the trial court on the interlocutory applications now and argue that trial court c erred in not adhering to the pre-trial procedures. [Para 46) [1186-C-E] 5. The trial court cannot' be said to have erred in permitting the plaintiff to lead secondary evidence when the original assignment deed was reportedly lost. [Para D 47) [1186-G] 6.1. The purpose and objective of Rule 4 of Order XVIII of the Code is speedy trial of the case and to save precious time of the court as the examination-in-chief of E a witness is now mandated to be made on affidavit with a copy thereof to be supplied to the opposite party. The provision makes it clear that cross-examination and reexamination of witness shall be taken either by the court or by Commissioner appointed by it. Proviso appended F to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court. In a case in which G . appeal is allowed, Rule 5 of Order XVIII provides that the evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the Judge or from the .dictation of the Judge directly on a typewriter or recorded H mechanically in the presence of the Judge if the Judge RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1155 M.S.S. FOOD PRODUCTS so directs for reasons to be recorded in writing. [Para 51] A [1189-G-H; 1190-A-C] 6.2. There is no requirement in Order XVIII Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the 8 affidavit. As it is such witness is required to enter the witness box in his cross-examination and, if necessary, re-examination. Since a witness who has given his examination-in-chief in the form of affidavit has to make himself available for cross-examination in the witness c box, unless defendant's right to cross examine him has been closed, such evidence (examination-in-chief) does not cease to be legal evidence. [Para 57] [1196-G-H; 1197A] 6.3. In the instant case, the three witnesses whose D examination-in-chief was tendered by the plaintiff in the form of affidavits were present for cross-examination but despite the opportunity given to the defendants, they chose not to cross-examine them and thereby the trial court closed the defendants' right to cross-examine E these witnesses. Thus, it cannot be said that any prejudice was caused to the defendants if these three witnesses did not enter the witness box. [Para 58] [11978-C] F.D.C. Limited v. Federation of Medical Representatives Association India & Ors. AIR 2003 Born 371; Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (2004) 1 SCC 702: 2003 (5) Suppl. SCR 634; Laxman Das v. Deoji Mal & Ors. AIR 2003 Rajasthan 74 - referred to. F G 7.1. Order XXX Rule 10 is an enabling provision which provides that a person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name. As a necessary corollary, the provision does not enable a H 1156 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R A . person carrying on business in a name or style other than in his own name to sue in such name or style.[Para 61] [1197-G-H; 1198-A] 7 .2. The description of the plaintiff in the plaint at best 8 may be called to be not in proper order inasmuch as the name of 'NV' must have preceded the business name in the cause title. This was not an illegality which goes to the root of the matter. Moreover, the defendants did file an application under Order XXX Rule 10 of the Code C before the trial court but that came to be rejected. The said order was challenged at interlocutory stage and the matter ultimately reached this Court. This Court refused to interfere with the order but gave liberty to the defendants to challenge the same in the first appeal, if aggrieved by the judgment and decree. Even after D rejection of the application under Order XXX Rule 10 of the Code by the trial court, the defendants yet attempted to raise the same controversy by mak~ng an application for amendment in the written statement but that too was dismissed. This order was also challenged at E interlocutory stage by the defendants but the said order was not interfered with by the High Court and this Court and liberty was granted to the defendants to challenge the same in the first appeal against the final judgment and decree. However, from the perusal of the judgment of the F High Court, it appears that no argument was advanced with regard to correctness of these two orders. [Para 63] [1198-C-G] Bhagvan Manaji Marwadi & Ors. v. Hiraji Premaji G Marwadi AIR 1932 Born 516 - referred to. 8. The defendants did not cross-examine the plaintiff's witnesses despite opportunity having been granted to them. There could have been some merit in the submissions, had the defendants cross-examined the H plaintiff's witnesses on these aspects. But, unfortunately, RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1157 M.S.S. FOOD PRODUCTS they did·· not avail of that opportunity. In the A circumstances, if the trial court and the High Court accepted the plaintiff's evidence which remained unrebutted and unchallenged and also relied upon the documents produced by the plaintiff, it cannot be said that" any illegality was committed by the trial c.ourt in s decreeing plaintiff's suit or any illegality was committed by the High Court in dismissing the first appeal. [Para 65) [1200-A-C] Gopal Krishnaji Ketkar v. Mahomed Haji Latif and Ors. AIR 1968 SC 1413: 1968 SCR 862 - referred to. c 9. The matter was fixed for pronouncement of judgment on March 28, 2005. The judgment could not be pronounced on that day and the. matter, thereafter, was fixed on various dates on the diverse applications made D by the defendants. In the meanwhile, the Presiding Officer who heard the arguments of the plaintiff and kept the judgment reserved got transferred and new Presiding Officer assumed the office. In the facts and circumstances of the case, on transfer of the E predecessor Judge who heard the arguments, it was not incumbent upon the successor Judge to hear the arguments of the defendants. The proceedings reveal that ultimately the matter was kept for pronouncement of judgment on March 7, 2007. On that day, the court F disposed of various applications made by the defendants and pronounced the judgment. The order sheet of March 7, 2007 did record that the plaintiff's advocate expressed that he did not want to address any arguments. This statement is in the context of not advancing further arguments as on behalf of the plaintiff, G the arguments had already been advanced; thejudgment was reserved and kept for pronouncement. [Para 66] [1200-E-H; 1201-A] . 10. The doctrine of proportionality has been H 1158 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A expanded in recent times and applied to the areas other than administrative law. However, its applicability to the adjudicatory process for determination of 'civil disputes' governed by the procedure prescribed in the Code is not at all necessary. The Code is comprehensive and B exhaustive in respect of the matters provided therein. The parties must abide by the procedure prescribed in the Code and if they fail to do so, they have to suffer the consequences. As a matter of fact, the procedure provided in the Code for trial of the suits is extremely c rational, reasonable and elaborate. Fair procedure is its hallmark. The courts of civil judicature also have to adhere to the procedure prescribed in the Code and where the Code is silent about something, the court acts according to justice, equity and good conscience. The discretion 0 conferred upon the court by the Code has to be exercised in conformity with settled judicial principles and not in a whimsical or arbitrary or capricious manner. If the trial court commits illegality or irregularity in exercise of its judicial discretion that occasions in failure of justice or E results in injustice, such order is always amenable to correction by a higher court in appeal or revision or by a High Court in its supervisory jurisdiction. Having regard to the facts of the instant case, it cannot be said that the trial court acted illegally or with material irregularity or irrationally or in an arbitrary manner in passing the orders F dated February 28, 2005 closing the right of the defendants to cross-examine plaintiff's witnesses and March 17, 2005. The defendants by their conduct and tactics disentitled themselves from any further indulgence by the trial court. The course adopted by the G trial court cannot be said to be unfair or inconsistent with the provisions of the Code. [Para 70] [1202-F-H; 1203-AD] Kunhayammed and Ors. v. State of Kera/a and Anr. H (2000) 6 SCC 359: 2000 (1) Suppl. SCR 538 - referred to. RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1159 M.S.S. FOOD PRODUCTS Case Law Reference: A 2000 (1) Suppl. SCR 538 Referred to. Para 21 (1959) Supp 1 SCR 319 Referred to. Para 26 48 Ind. Cas.859 Referred to. Para 28 B AIR (1924) Lah 107 Approved. Para 29 AIR (1922) Born 345 Referred. to. Para 35 AIR (35) 1948 Nag 362 Referred to. Para 36 c (1964) 5 SCR 946 Referred to. Para 40, 41 2007 (2 ) SCR 1037 Distinguished. Para 43 AIR 2003 Born 371 Referred to. Para 52, 57 2003 (5 ) Suppl. SCR 634 Referred to. Para 52, t;5, D 57 AIR 2003 Rajasthan 7 4 Referred to. Para 57 AIR 1932 Born 516 Referred to. Para 63 E 1968 SCR 862 Referred to. Para 64 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10112 of 2011. From the Judgment & Order dated 13.8.2008 of the High F Court of Judicature of Madhya Pradesh at Indore in First Appeal No. 217 of 2007. Shekhar Naphade, Pravin H. Parekh, Sameer Parekh, Lalit Chuhan, Ashish Jha, Rohit Gupta, Vivek Dalal, Jayant Mohan, G Ranjeeta Rohtagi, Subhash Jadhav, K. Shashank, S. Goud (for "Coac"), for the Appellant. Dr. A.M. Singhvi, Mukul Rohatgi, Vikas Singh, Sanjeev Sachdeva, P.K. Saxena, Amit Bhandari, Preet Pal Singh, Vivek H 1160 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A Gautam, Shiv Prakash Pandey, Shiva Laxmi, Gopal Singh Chauhan for the Respondent. B The Judgment of the Court was delivered by R.M. LODHA, J. 1. 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. c 3. M/s. M.S.S. Food Products-respondent (hereinafter referred to as 'plaintiff') sued the appellants-(i) Dhariwal Industries Ltd. and (ii) Rasiklal Manikchand Dhariwal (hereinafter referred to as 'defendants') in the court of 1st Additional District Judge, Mandaleshwar (West) Madhya 0 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 tjealing in or selling the above articles under the name/ E brand "Manikchand"; for rendition of the accounts of profits earned by the defendants by selling the said goods and other consequential reliefs. 4. The case of the plaintiff is this: Prabhudayal Choubey son of Ramprasad alias Malikchand started the business of F supari, ayurvedic pan masala and ayurvedic medicines in the brand name "Malikchand" in the year 1959-60. He continued his business upto April 1986. Prabhudayal Choubey assigned his trade mark of supari and ayurvedic pan masala "Malikchand" to his son Ashok Sharma sometime in the month G of April, 1986. Ashok Sharma continued his business of supari, ayurvedic pan masala and ayurvedic medicines etc. upto March 1992. Ashok Sharma assigned the trade mark "Malikchand", vide assignment deed dated April 1, 1992, to Kish ore Vadhwani, proprietor of M/s. Tulsi Stores who continued with H the business of pan masala, gutka, supari and supari mix etc. RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1161 M.S.S. FOOD PRODUCTS[R.M .. LODHA, J.] till March, 1996. Kishore Vadhw