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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  of  Rs.2,26,40,370/-  be  paid  as  refund  of  part

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

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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

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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

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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

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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

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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

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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.