G H SHREE CHAITANYA CONSTRUCTIONS versus SUDHIR POONAMCHAND PARAKH & ORS.

Citation: [2019] 9 S.C.R. 1052 · Decided: 17-07-2019 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 9 S.C.R.
SHREE CHAITANYA CONSTRUCTIONS
v.
SUDHIR POONAMCHAND PARAKH & ORS.
(Civil Appeal No.5620 Of 2019)
    JULY 17, 2019
[R.F. NARIMAN, SANJIV KHANNA AND SURYA KANT, JJ.]
Natural Justice – Right to be heard – Suit for specific
performance against several members of one family/defendants –
Rejected by the Trial Court – However, High Court by judgment
dated 14.2.2018 decreed in favour of the plaintiff – Respondent
No.1/defendant No. 5 filed review petition and stated that in the
appeal before the High Court he never appeared and he was
represented by a counsel who was not appointed by him – High
Court allowed the review petition and recalled its judgment – On
appeal, held: Advocate, who appeared for respondent no.1, did
not make any argument ‘collusive’ in nature or against the respondent
no.1 – Even in equity, the respondent No.1 has no case – Various
affidavits were filed by the relatives of respondent No.1 stating that
the said advocate was agreed to be engaged by all the family
members/close relatives – Also, despite service of appeal, respondent
No.1 chose not to appear before High Court, now he cannot say
that he was not heard – Impugned Judgment of the High Court
recalling its judgment dated 14.2.2018 set aside.
Allowing the appeal, the Court
HELD: 1. It is clear that notices of the 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, it directed that
service be made by Registered Post A.D.  This was ultimately
done and notices were returned unserved with postal remarks
“unclaimed, hence returned to sender”. After this happened,
[2019]  9 S.C.R. 1052
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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.  Pursuant to all
these steps, by a formal order in First Appeal No. 295 of 2013, it
was stated that service to the respondents was complete. As
correctly contended by the appellant that 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.
This Court has also perused the impugned judgment dated
14.02.2018.  A large portion thereof is the recording of the
submissions of ‘D’ 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. [Paras 10, 11] [1057-B-H]
2. It may also be pointed out that even in equity, the
Respondent No.1 has no case. This Court has perused the affidavit
of ‘V’ dated 26.07.2018 in which he 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 ‘MS’,
Advocate who would then brief a Senior Advocate and appear on
behalf of Respondent No.1.  ‘MS’ 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.
There is no reason to disbelieve these affidavits. [Para 12]
[1058-A-C]
SHREE CHAITANYA CONSTRUCTIONS  v.
SUDHIR POONAMCHAND PARAKH
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
3.  It is clear that had the Respondent No.1 not chosen to
appear at all

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