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, 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-inlaw/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]
3. 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 the submissions made by ‘D’ in the appeal are discounted and the case of Respondent No.1 is accepted that he never, in fact, appointed either ‘MS’ or ‘D’ to represent him, since the result of the appeal would have been the same. Thus, the impugned judgment is set aside. [Para 14] [1058-G-H; 1059-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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