RASIKLAL MANICKCHAND DHARIWAL & ANR. v. M/S. M.S.S. FOOD PRODUCTS

8. tn other words, in the appeatable cases though the examination in chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the G 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 H

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A 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- examinatior'l 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 B 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 c 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 oi' the Court, the litigants and the G 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 H

RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1193 M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]

of avoiding delay in disposal of the suits, and there being · A no conflict disclosed between the provisions of Rules 4 and 5 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."

53Copy pinpoint53. 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."

54Copy pinpoint54. It is also relevant to mention that Rule 5 of Order XVIII was substituted by Act 104 of 1976 with effect from February F 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 G opposite party by the party who calls him for evidence.

55Copy pinpoint55. 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 H

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A 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 B 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 differ13nce between Rule 4 c 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 :

D "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. E What thus remains viz. cross-examination or re- examination in the appealable cases will have to be considered in the manner laid down in the rules, subject to the other sub-rules of Rule 4."

56Copy pinpoint56. 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 Cc'Jrt stated as follows:

"33. The matter may be considered from another angle. Presence of a party during examination-in-chief is nol imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been

RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1195 M.S.S. FOOD PRODUCTS [R.M. LODHA, J.] 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- B 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 c court."

57Copy pinpoint57. It is pertinent to notice that in Ameer Tradir19 Corpn. Ltd. , a decision of the Rajasthan High Gourt in the case of 10

Laxman Das v. Deoji Mal & Ors. 11 was cited wherein the view was taken that in the appealable cases, Order XVIII Rule 4 of D 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 Das 11 and the decision of Bombay High Court in F.D.C. E Liml1ed9 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 F 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 G Court in the case of Laxman Das 11 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

11. AIR 2003 Rajasthan 74. H

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A 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 quoting paragraphs 7 and 8 of the decision of the Bombay High Court in F.O.C. Limited9 , the Court has not said that they B 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 c 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 0 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 E 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 F witness is 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

RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1197 M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]

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.

58Copy pinpoint58. On February 28, 2005, the three witnesses whose examination-in-chief was tendered by the plaintiff in the form 8 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 C if these three witnesses did not enter the witness box.

59Copy pinpoint59. 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-Mis. M.S.S. Food Products. Relying upon D a decision of the Bombay High Court in the case of Bhagvan Manaji Marwadi & Ors. v. Hiraji Premaji Marwadi 12 , it was urged that a proprietorship firm cannot sue in its name.

60Copy pinpoint60. Rule 10 of Order XXX of the Code reads as follows : E

"10. Suit against person carrying on business in name other than his own.-Any person carrying on busine~ 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 F name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly."

61Copy pinpoint61. The above provision is an enabling provision which provides that a person carrying on business in a name or style G ·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

12. AIR 1932 Born 516. H

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A name or style other than in his own name to sue in such name or style.

62Copy pinpoint62. The plaint filed by the plaintiff describes the title of the plaintiff as follows: B "Messrs. M.S.S. Food F-roducts, Plot No. D, Sector-E, Sanver Road Industrial Area, Indore, Through - Proprietor - Nilesh Vadhwani, Son of Shri Ashok Vadhwani, aged 27 years, c Occupation - Business."

63Copy pinpoint63. 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 D 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. E 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 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

RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1199 M.S.S. FOOD PRODUCTS [RM. LODHA, J.]

Court in the case of Bhagvan Manaji Marwadi 12 is of no help P. to the appellants for the above reasons.

64Copy pinpoint64. 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 8 filed by the plaintiff wbich 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 Gopa/ Krishnaji 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.

13. AIR 1968 SC 1413. H

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65Copy pinpoint65. We are not persuaded by the submission of learned senior counsel for the appellants. 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 B plaintiffs witnesses on these aspects. But, unfortunately, they did not avail of that opportunity. In the circumstances, if the trial court and the High Cot.Jrt accepted the plaintiffs evidence which remained un-rebutted and unchallenged and also relied upon the documents produced by the plaintiff, it cannot be said that c any illegality has been committed by the trial court in decreeing plaintiffs suit or any illegality has been committed by the High Court in dismissing the first appeal.

66Copy pinpoint66. Learned senior counsel for the appellants then contended that the matter was posted for judgment on March D 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 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 tr<1nsfer 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

RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1201 M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]

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 pe rejected. B

67Copy pinpoint67. 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 plaintiffs 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 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 dec1ee passed by the trial court is not proportionate to the default on the part of the defendants and, accordingly, liable to be set aside. / E

68Copy pinpoint68. 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 plaintiffs 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 plaintiffs witnesses. On the next date, the defendants or their advocates even did not appear. The court was constrained to proceed ex parte against H

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A the defendants, hear the plaintiff's advocate when the plaintiff closed its evidence and reserve the judgment to be pronounced at a later date.

69Copy pinpoint69. Recently, in the case of Mis. Shiv Cotex v. Tirgun Auto Plast P. Ltd. & Ors. (Civil Appeal No. 7532 of 2011) decided 8 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 C 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.. ........ "

70Copy pinpoint70. 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 determination of 'civil disputes' governed by the procedure prescribed in the Code is not at all necssary. The G 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

RASIKLAL MANICKCHAND DHARIWAL & ANR. v. 1203 M.S.S. FOOD PRODUCTS [R.M. LODHA, J.]

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 c 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 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.

71Copy pinpoint71. In view of the above, appeal has no merit and is dismissed with costs which we quantify at Rupees 50,000/- (fifty thousand).

N.J. Appeal dismissed.