Shre Chaitanya Constructions vs Sudhir Poonumchand Parakh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5620 OF 2019 (Arising out of SLP (C) No. 30543 of 2018)

SHREE CHAITANYA CONSTRUCTIONS Appellant(s)

VERSUS

SUDHIR POONAMCHAND PARAKH & ORS. Respondent(s)

J U D G M E N T

R.F. Nariman, J.

1) Leave granted.

2) The present dispute arises out of a specific

performance suit that had been filed on 15.10.2010 by the

plaintiff against several members of one family. There

were 8 defendants in all. However, only Defendant No.5,

who is the Respondent No.1 in this appeal, filed a written

statement on 04.02.2011. Defendant No.5 neither led any

evidence nor did he avail of any opportunity to cross-

examine the plaintiff before the trial Court. The Trial

Court, by its judgment dated 07.11.2012, rejected the

prayer for specific performance and instead directed that a

sum Signature Not Verified of Rs.2,26,40,370/- be paid as refund of part Digitally signed by R NATARAJAN Date: 2019.07.23 12:59:57 IST Reason: consideration already given. The First Appeal against the

aforesaid judgment was filed by the plaintiff on

03.04.2013.

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3) Meanwhile, in an inter se litigation between the

members of the defendants family, a partition suit had been

filed by the present Respondent No.1 being O.S. No. 1298 of

1999 against the original Defendant Nos. 1-4 and certain

others for partition of as many as 22 properties. The

property with which the specific performance suit is

concerned is stated to be Item No.7 in the Schedule that is

appended to this suit. In this suit, an interim injunction

had been passed restraining the defendants from creating

third party rights. This was done on 22.03.2007. Since

Suit No. 1298 of 1999 stood dismissed for non-prosecution

on 18.11.2014, the said interim injunction would stand

automatically vacated.

4) Meanwhile, a Memorandum of Understanding (MoU) was

entered into between the plaintiff and Defendant Nos. 1-8.

What is important to note is that the present Respondent

No.1, when he filed his written statement in the specific

performance suit, admitted the factum of this MoU.

5) An appeal that had been filed against the trial Court

judgment in the specific performance suit was heard and

finally decided by the High Court, in which the trial Court

judgment was set aside and specific performance decreed in

favour of the plaintiff. It may be mentioned that in this

appeal, one Mr. Mandar Soman and Mr. P.S. Dani, learned

Senior Advocate, appeared for the respondent No.1 and

submitted a number of arguments and cited a number of

judgments in favour of Respondent No.1. These have all 3

been noted in the judgment dated 14.02.2018, and after

turning down Mr. Dani’s arguments, the High Court allowed

the appeal.

6) The Respondent No.1 then filed a review petition

against the aforesaid judgment, in which it was stated that

he received a copy of the High Court judgment dated

14.02.2018 two days later, i.e. on 16.02.2018, and was

shocked to find that he was represented by counsel who he

had never appointed. It is his case before us, and this is

not disputed by Mr. Basant, learned Senior Advocate for the

appellant, that there was, in fact, no written Vakalatnama

executed by Respondent No.1 in favour of Mandar Soman, who

appeared to represent the Respondent No.1 in the appeal

before the High Court.

7) This being the case, the review petition was disposed

of by the impugned judgment dated 27.09.2018, in which the

High Court recalled its judgment of 14.02.2018 on the

ground that since it is clear that the advocate who

appeared on behalf of Respondent No.1, appeared without any

written Vakalatnama (and appeared merely on alleged oral

assurances, said to be given by Respondent No.1) the order

must be recalled and Respondent No.1 must be heard. The

High Court, therefore, allowed the review petition and

restored the appeal.

8) Mr. R. Basant, learned Senior Advocate, appearing for

the appellant, has meticulously taken us through the

relevant judgments and documents, and has argued that there 4

can be no dispute as to the fact that the Respondent No.1

was duly served in the appeal. If despite service he had

chosen not to appear at all, then obviously no ground for

review would have been made out. Also, he was at pains to

point out that nowhere in the review petition had

Respondent No.1 stated that upon reading the judgment the

arguments made by Mr. Dani were against the interest of his

client. He pointed out that as many as five points had

been made by Mr. Dani, beginning from maintainability of

the suit to reasons for non-grant of specific performance,

all of which had first to be dealt with by the High Court

judgment dated 14.02.2018 before it could upset the trial

Court judgment. According to him, therefore, the non-

filing of Vakalatnama by Respondent No.1 in favour of Mr.

Mandar Soman should not be given any heed as no question of

collusion could be made out on the facts of this case. He

also argued that, in any event, the non-filing of a

Vakalatnama is at best an irregularity which can be cured

later on. Quite obviously, if the judgment had been given

in favour of Respondent No.1 and this was pointed out, the

Respondent No.1 would forthwith have cured such

irregularity by doing the needful. Therefore, on facts,

according to him, the High Court was incorrect in allowing

the review petition.

9) Ms. Anjani Aiyagari, learned counsel, appearing for

the Respondent No.1, has strenuously contended that her

client, on the one hand, and his father and brother on the 5

other, were at loggerheads through out as a result of

which, as a matter of fact, in contempt proceedings between

them, Mr. Dani appeared for the family members/close

relatives of Respondent No.1 against Respondent No.1, who

was the contempt petitioner in those proceedings; she

referred to and relied upon an order dated 18.04.2006 in

this behalf. According to her, the only argument that

should have been made and that was never made on behalf of

Respondent No.1 in the appeal, is the fact that the

property, which is the subject-matter of the specific

performance suit, could not possibly have been alienated

inasmuch as there was an interim injunction interdicting

the same. This argument has never been made, and had it

been made, according to her, the result in the appeal would

have been against decreeing specific performance. She also

stated that earlier orders that were passed would show that

the parties were exploring a settlement, and that, for this

reason, the Respondent No.1 could not appear is another

important factor to be taken into account before the

judgment dated 14.02.2018 was passed. Also, according to

her, in point of fact, the Respondent No.1 did not have any

knowledge of the appeal proceeding and, therefore, this

Court ought to be not to interfere with the impugned

judgment, which has only ultimately done justice in favour

of her client.

10) Having heard the learned counsel for both parties one

thing stands out. What is clear is that notices of the 6

appeal were repeatedly served on respondent No.1. The

first time when service was effected, the bailiff remarked

that since Respondent No.1 was not found at the address at

which he resides, service was effected by “affixation on

the door” of his residence. The High Court still felt that

it was necessary under the rules to effect proper service,

as a result of which, by its order dated 27.10.2015, it

directed that service be made by Registered Post A.D. This

was ultimately done on 03.11.2015, and notices were

returned unserved with postal remarks ”unclaimed, hence

returned to sender”. Not only this, after this happened,

steps were then taken for service through paper

publication, which was duly done by a notice issued in the

Newspaper “Prabhat” which has a wide circulation in Pune,

on 18.01.2016. Pursuant to all these steps, by a formal

order dated 22.02.2016 in First Appeal No. 295 of 2013, it

was stated that service to the respondents was complete.

11) It is in this backdrop that the present appeal needs

to be considered. As correctly contended by Mr. Basant,

after service is effected, had respondent No.1 not appeared

at all, he could not have complained of the same since,

after service has been effected, he has chosen not to

appear, and this being the position, he cannot then turn

around and say that as he was not heard and that the

appellate judgment should be set aside and the appeal

restored. We have also perused the impugned judgment dated

14.02.2018. A large portion thereof is the recording of 7

the submissions of Mr. Dani, learned Senior Advocate, on

behalf of Respondent No.1, which are all submissions

ranging from maintainability of the specific performance

suit; the MoU being unstamped and therefore not admissible

in evidence; and otherwise that on facts it would be

inequitable to enforce specific performance in favour of

the plaintiff. On the facts of the case, not a single

argument has been pointed out which could be said to be

“collusive” in nature; that is while appearing to defend

the Respondent No.1, an argument was made in the nature of

a “hit wicket” which would really favour the plaintiff.

12) It may also be pointed out that even in equity, the

Respondent No.1 has no case. We have perused the affidavit

of Mr. Vinit Jain dated 26.07.2018 in which Mr. Jain states

that being a son-in-law/close relative of one of the

brothers of Respondent No.1, he was in charge of and

handling this litigation. According to him, he was given

an express oral assurance by all the brothers, including

Respondent No.1, to engage the services of Mandar Soman,

Advocate who would then brief a Senior Advocate and appear

on behalf of Respondent No.1. Mr. Soman, in an affidavit

of the same date, has affirmed these facts. Even

otherwise, the father of Respondent No.1 has also, by an

affidavit dated 02.08.2018 stated the same thing which has

been agreed to by all the family members/close relatives,

save and except Respondent No.1. We have no reason to

disbelieve these affidavits. The only point in favour of 8

the Respondent No.1 is the fact that there is no written

Vakalatnama in favour of the counsel who represented him in

the above appeal. The fact that Mr. Dani appeared against

him in a contempt petition filed by Respondent No.1, which

was disposed of in 2006, does not lead us very far. At

that point of time, when the parties were at loggerheads,

Mr. Dani did appeared for family members against the

Respondent No.1. However, when the parties i.e. the

Respondent No.1’s father and his brothers were all co-

defendants in a specific performance suit in which their

interest was common (that is, to oppose specific

performance) it is difficult to appreciate that Mr. Dani’s

appearance of 2006 should be put against his appearing in

2018 when Mr. Dani contested the specific performance suit

tooth and nail.

13) We also fail to appreciate Ms. Anjani Aiyagari’s

other argument that had an argument based on the injunction

granted in the partition suit been made, the appeal would

have been decided differently. As correctly pointed out by

Mr. Basant even this is incorrect. Para 33 of the judgment

dated 14.02.2018 makes it clear that this aspect was argued

and considered. The point about the parties exploring

settlement earlier to the impugned judgment is again

neither here nor there inasmuch as obviously when such

settlement talks failed, the appeal had to be set down for

hearing.

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14) It is clear that had the Respondent No.1 not chosen

to appear at all, the judgment dated 14.02.2018 could not

possibly have been recalled. Therefore, even if we were to

discount the submissions made by Mr. Dani in the appeal and

accept the case of Respondent No.1 that he never, in fact,

appointed either Mr. Soman or Mr. Dani to represent him,

since the result of the appeal would have been the same, we

set aside the impugned judgment and allow the appeal.

.......................... J.

(ROHINTON FALI NARIMAN)

.......................... J.

(SANJIV KHANNA)

.......................... J.

(SURYA KANT) New Delhi;

July 17, 2019.