LexRASIKLAL MANICKCHAND DHARIWAL & ANR. versus M/S. M.S.S. FOOD PRODUCTS
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[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 t
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