Case: SHRE CHAITANYA CONSTRUCTIONS Vs. SUDHIR POONUMCHAND PARAKH

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 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 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 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. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]What is clear is 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 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 wascorrectly 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 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.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 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.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.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.