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Code of the Civil Procedure, 1908: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 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 - 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 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 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 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 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 said that such appearance by the defendants is covered by the expression "appeared on the day fixed for his appearance occurring in Or. 9 r. 7 and thereby entitling them to address the court on the merits of the case - Or. 9 r. 7 has no application - It cannot be said that any prejudice was cause to the defendants if these witnesses did not enter the witness box - Defendants by their conduct and tactics disentitled 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 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 the suit - 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 the trial of a suit and 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 - 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-'- 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 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 and if they do not avail, they do so at their peril. 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. 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 the suit''.Or. IX r. 6 (1)(a) - After due service 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- 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.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 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 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. 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 said provision does not enable a person carrying on business in a 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 applications made by the defendants - It cannot be said that 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 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 the High Court the aspect by filing a review application - Such 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 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 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 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. |
