Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196
Civil Procedure Code, 1908
Or. 18 Rr. 15 & 13 and Or. 20 R. 1 - Successor Judge's power to proceed with suit from stage at which suit left by
predecessor - Purpose behind such arrangement - Progress already made in a case should not be lost - Expression
``from the stage at which his predecessor left it'' - Interpretation of - Wide meaning to be given so as to take a case
forward - Scope of Or. 18 R. 15 not to be narrowed down by creating any exception - Successor Judge, held, can
pronounce judgment where predecessor Judge left after concluding arguments and posting case for pronouncement of
judgment - Principle that one who hears must decide, further held, not applicable in view of wide amplitude of Or. 18 R.
15 - Thus, there was nothing wrong in successor Judge deciding suit on the basis of evidence produced before
predecessor Judge, and refusing to grant appellant-defendants one more opportunity to cross-examine respondentplaintiffs
in trade mark dispute, and lead oral arguments, which rights they had forfeited due to their own default while
proceedings were pending before predecessor Judge - Successor Judge who took over after the case had already been
posted for pronouncement of judgment, was not required to give further opportunity of hearing to appellant-defendants,
Administrative Law
Natural Justice
Personal or Oral Hearing - One who hears must decide - Limits to principle of - Proceedings when not entirely oral nor
personal - Inapplicability, hence, to civil suits,
Civil Procedure Code, 1908
Or. 18 R. 2(1) and Or. 20 R. 1 - Hearing of suit - Commencement and conclusion of hearing - Held, hearing starts when
evidence in a suit begins and it concludes when judgment is pronounced,
Civil Procedure Code, 1908
Or. 18 R. 2(2) - Stating of case by a party and nature of evidence to be lead by it - Purpose of procedure - Held, is to
help court understand nature of evidence likely to be led by a party in support of his case, (2012) 2 SCC 196-D
Civil Procedure Code, 1908
Or. 18 Rr. 2(1) & (2) - ``State his case'' - ``Produce his evidence'' - ``Address the court generally on the whole case'' -
Held, expressions occurring in Rr. 2(1) & (2) have different meanings and connotation, (2012) 2 SCC 196-E
Constitution of India
Art. 136 - Exemplary costs - Defendants not proceeding with due diligence before courts below and seeking redress in
respect of the same matters before Supreme Court - Appeal dismissed with costs of Rs 50,000, (2012) 2 SCC 196-F
Administrative Law
Judicial Review
Proportionality - Applicability of doctrine to civil disputes governed by Civil Procedure Code, 1908 - Scope of doctrine,
held, though expanded in some areas outside administrative law, yet does not warrant its extension to civil disputes
regulated by CPC which is self-contained and provides a fair procedure of adjudication - Any aspect not specifically
covered by CPC is dealt with, according to justice, equity and good conscience - Higher courts too have sufficient power
to rectify error, if any, committed by lower court - Trial court which is bound by procedure prescribed in CPC, is not
required to moderate its action by importing proportionality - On facts held, trial court was not bound to afford extra
opportunity to appellant-defendants to present their case by awarding costs in favour of respondent-plaintiffs when
hearing of case had already been closed after affording opportunity to defendants to present their case, which they had
lost due to their own default,
Civil Procedure Code, 1908
Or. 9 R. 7 r/w Or. 17 R. 2, Or. 20 R. 1 and Or. 9 R. 6(1)(a) - Ex parte disposal of suit/ex parte decree - R. 7, held, not
applicable when defendant appears after hearing is closed and case is posted for pronouncement of judgment - R. 7
applies when hearing is in progress - Date on which a case is fixed for judgment is not a date of hearing - R. 7 cannot be
availed on that date or thereafter - On facts held, defendants could not claim right to hearing when they failed to crossexamine
plaintiff's witnesses on date (28-2-2005) trial court asked them to do so and on subsequent date (17-3-2005)
when trial court heard plaintiffs' arguments ex parte due to defendants' absence and also fixed the case for
pronouncement of judgment - Trial court was justified in adopting this course of action because there was direction from
High Court to decide case within fixed time - It was open to trial court to proceed with case ex parte in terms of Or. 17 R.
2 r/w Or. 9 R. 6(1)(a) - Though judgment was not pronounced on date fixed for it yet defendants, held, could not get case
reopened for hearing by filing applications after the case had reached stage of judgment,
Civil Procedure Code, 1908
Or. 47 R. 1 - Review - Grounds - Contentions not considered by High Court - Proper course of action, held, was to file
review - Supreme Court could not entertain those contentions when remedy of review was not availed,
Civil Procedure Code, 1908
Or. 18 Rr. 5 and 4 - Examination-in-chief by tendering affidavit of a witness in appealable cases - Witness whether must
enter witness box to prove affidavit - Opportunity to cross-examine lost by opposite party due to its own default - Effect -
Held, affidavit is already on oath/affirmation and is therefore not required to be re-proved by deponent - His formal
appearance in witness box is required only for cross-examination or re-examination - R. 5 does not impose any
requirement that deponent must enter witness box to testify that affidavit has been signed and sworn by him - On facts
held, affidavits tendered by plaintiffs' witnesses could be relied upon by court when defendants despite opportunity being
given to them, failed to cross-examine them even though witnesses did not formally enter witness box,
Civil Procedure Code, 1908
Or. 30 R. 10 and Or. 7 R. 1 - Suit against person carrying on business in name other than his own - Analogy of enabling
provision in R. 10, held, cannot be extended to plaintiff filing suit in name other than his own,
Civil Procedure Code, 1908
Or. 7 Rr. 1(b) and 4 - Suit in name of sole proprietorship firm - Maintainability - Plaint indicating name of proprietorship
firm followed by name of sole proprietor - Objection raised that sole proprietor should have been named as plaintiff -
Held, misdescription of plaintiff was not illegality going to root of matter - Besides, objection also not properly argued in
High Court despite liberty given to defendants - Objection therefore overruled,
Civil Procedure Code, 1908
Or. 18 R. 4(2) - Cross-examination of plaintiff's evidence tendered through affidavit - Consequence of failure to do so
despite opportunity granted by trial court - Evidence, held, could not subsequently be assailed as unreliable,
Evidence Act, 1872
S. 57 - Judicial notice of facts - Well-known trade mark whether ought to be judicially noticed - Such plea raised by
defendants who otherwise failed to defend properly instituted suit against them for trade mark infringement/passing off -
Plea not entertained in view of their own default,
Civil Procedure Code, 1908
Or. 20 R. 1 - Pronouncement of judgment on day fixed for it - Whether judgment must be against plaintiff if he does not
argue his case on that day - On facts found that arguments already stood closed on previous date - Some miscellaneous
applications filed by defendants were considered and rejected on date fixed for judgment but, held, it was not necessary
for plaintiff to further argue main case on merits - Court could proceed with pronouncement of judgment after disposing of
miscellaneous applications,
Courts, Tribunals and Judiciary
Courts, Tribunals and Special Courts
R. 6 - Whether R. 6 overrides court's power to proceed with a case under Or. 9 CPC where parties fail to appear - Held,
R. 6 lays down procedure for maintenance of a register and for classifying cases for which they are posted on a particular
date - R. 6 therefore does not affect court's power to proceed ex parte under Or. 9 - On facts held, it was open to court to
hear final arguments on a particular date when defendants failed to appear on that date though the case on that date
was listed under R. 6 for plaintiff's evidence,
Evidence Act, 1872
S. 65 - Secondary evidence - When permissible - Proof of assignment of trade mark when original deed lost - Held, trial
court was right in permitting respondent-plaintiffs to lead secondary evidence when original assignment deed was lost,
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Civil Procedure Code, 1908
Or. 18 Rr. 15 & 13 and Or. 20 R. 1 - Successor Judge's power to proceed with suit from stage at which suit left by
predecessor - Purpose behind such arrangement - Progress already made in a case should not be lost - Expression
``from the stage at which his predecessor left it'' - Interpretation of - Wide meaning to be given so as to take a case
forward - Scope of Or. 18 R. 15 not to be narrowed down by creating any exception - Successor Judge, held, can
pronounce judgment where predecessor Judge left after concluding arguments and posting case for pronouncement of
judgment - Principle that one who hears must decide, further held, not applicable in view of wide amplitude of Or. 18 R.
15 - Thus, there was nothing wrong in successor Judge deciding suit on the basis of evidence produced before
predecessor Judge, and refusing to grant appellant-defendants one more opportunity to cross-examine respondentplaintiffs
in trade mark dispute, and lead oral arguments, which rights they had forfeited due to their own default while
proceedings were pending before predecessor Judge - Successor Judge who took over after the case had already been
posted for pronouncement of judgment, was not required to give further opportunity of hearing to appellant-defendants,
Administrative Law
Natural Justice
Personal or Oral Hearing - One who hears must decide - Limits to principle of - Proceedings when not entirely oral nor
personal - Inapplicability, hence, to civil suits,
Civil Procedure Code, 1908
Or. 18 R. 2(1) and Or. 20 R. 1 - Hearing of suit - Commencement and conclusion of hearing - Held, hearing starts when
evidence in a suit begins and it concludes when judgment is pronounced,
Civil Procedure Code, 1908
Or. 18 R. 2(2) - Stating of case by a party and nature of evidence to be lead by it - Purpose of procedure - Held, is to
help court understand nature of evidence likely to be led by a party in support of his case, (2012) 2 SCC 196-D
Civil Procedure Code, 1908
Or. 18 Rr. 2(1) & (2) - ``State his case'' - ``Produce his evidence'' - ``Address the court generally on the whole case'' -
Held, expressions occurring in Rr. 2(1) & (2) have different meanings and connotation, (2012) 2 SCC 196-E
Constitution of India
Art. 136 - Exemplary costs - Defendants not proceeding with due diligence before courts below and seeking redress in
respect of the same matters before Supreme Court - Appeal dismissed with costs of Rs 50,000, (2012) 2 SCC 196-F
Administrative Law
Judicial Review
Proportionality - Applicability of doctrine to civil disputes governed by Civil Procedure Code, 1908 - Scope of doctrine,
held, though expanded in some areas outside administrative law, yet does not warrant its extension to civil disputes
regulated by CPC which is self-contained and provides a fair procedure of adjudication - Any aspect not specifically
covered by CPC is dealt with, according to justice, equity and good conscience - Higher courts too have sufficient power
to rectify error, if any, committed by lower court - Trial court which is bound by procedure prescribed in CPC, is not
required to moderate its action by importing proportionality - On facts held, trial court was not bound to afford extra
opportunity to appellant-defendants to present their case by awarding costs in favour of respondent-plaintiffs when
hearing of case had already been closed after affording opportunity to defendants to present their case, which they had
lost due to their own default,
Civil Procedure Code, 1908
Or. 9 R. 7 r/w Or. 17 R. 2, Or. 20 R. 1 and Or. 9 R. 6(1)(a) - Ex parte disposal of suit/ex parte decree - R. 7, held, not
applicable when defendant appears after hearing is closed and case is posted for pronouncement of judgment - R. 7
applies when hearing is in progress - Date on which a case is fixed for judgment is not a date of hearing - R. 7 cannot be
availed on that date or thereafter - On facts held, defendants could not claim right to hearing when they failed to crossexamine
plaintiff's witnesses on date (28-2-2005) trial court asked them to do so and on subsequent date (17-3-2005)
when trial court heard plaintiffs' arguments ex parte due to defendants' absence and also fixed the case for
pronouncement of judgment - Trial court was justified in adopting this course of action because there was direction from
High Court to decide case within fixed time - It was open to trial court to proceed with case ex parte in terms of Or. 17 R.
2 r/w Or. 9 R. 6(1)(a) - Though judgment was not pronounced on date fixed for it yet defendants, held, could not get case
reopened for hearing by filing applications after the case had reached stage of judgment,
Civil Procedure Code, 1908
Or. 47 R. 1 - Review - Grounds - Contentions not considered by High Court - Proper course of action, held, was to file
review - Supreme Court could not entertain those contentions when remedy of review was not availed,
Civil Procedure Code, 1908
Or. 18 Rr. 5 and 4 - Examination-in-chief by tendering affidavit of a witness in appealable cases - Witness whether must
enter witness box to prove affidavit - Opportunity to cross-examine lost by opposite party due to its own default - Effect -
Held, affidavit is already on oath/affirmation and is therefore not required to be re-proved by deponent - His formal
appearance in witness box is required only for cross-examination or re-examination - R. 5 does not impose any
requirement that deponent must enter witness box to testify that affidavit has been signed and sworn by him - On facts
held, affidavits tendered by plaintiffs' witnesses could be relied upon by court when defendants despite opportunity being
given to them, failed to cross-examine them even though witnesses did not formally enter witness box,
Civil Procedure Code, 1908
Or. 30 R. 10 and Or. 7 R. 1 - Suit against person carrying on business in name other than his own - Analogy of enabling
provision in R. 10, held, cannot be extended to plaintiff filing suit in name other than his own,
Civil Procedure Code, 1908
Or. 7 Rr. 1(b) and 4 - Suit in name of sole proprietorship firm - Maintainability - Plaint indicating name of proprietorship
firm followed by name of sole proprietor - Objection raised that sole proprietor should have been named as plaintiff -
Held, misdescription of plaintiff was not illegality going to root of matter - Besides, objection also not properly argued in
High Court despite liberty given to defendants - Objection therefore overruled,
Civil Procedure Code, 1908
Or. 18 R. 4(2) - Cross-examination of plaintiff's evidence tendered through affidavit - Consequence of failure to do so
despite opportunity granted by trial court - Evidence, held, could not subsequently be assailed as unreliable,
Evidence Act, 1872
S. 57 - Judicial notice of facts - Well-known trade mark whether ought to be judicially noticed - Such plea raised by
defendants who otherwise failed to defend properly instituted suit against them for trade mark infringement/passing off -
Plea not entertained in view of their own default,
Civil Procedure Code, 1908
Or. 20 R. 1 - Pronouncement of judgment on day fixed for it - Whether judgment must be against plaintiff if he does not
argue his case on that day - On facts found that arguments already stood closed on previous date - Some miscellaneous
applications filed by defendants were considered and rejected on date fixed for judgment but, held, it was not necessary
for plaintiff to further argue main case on merits - Court could proceed with pronouncement of judgment after disposing of
miscellaneous applications,
Courts, Tribunals and Judiciary
Courts, Tribunals and Special Courts
R. 6 - Whether R. 6 overrides court's power to proceed with a case under Or. 9 CPC where parties fail to appear - Held,
R. 6 lays down procedure for maintenance of a register and for classifying cases for which they are posted on a particular
date - R. 6 therefore does not affect court's power to proceed ex parte under Or. 9 - On facts held, it was open to court to
hear final arguments on a particular date when defendants failed to appear on that date though the case on that date
was listed under R. 6 for plaintiff's evidence,
Evidence Act, 1872
S. 65 - Secondary evidence - When permissible - Proof of assignment of trade mark when original deed lost - Held, trial
court was right in permitting respondent-plaintiffs to lead secondary evidence when original assignment deed was lost,
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