Case Note & Summary
The dispute arose from a specific performance suit filed on 15.10.2010 by the appellant, Shree Chaitanya Constructions, against eight defendants. Only Respondent No.1 (Sudhir Poonamchand Parakh) filed a written statement on 04.02.2011 but did not lead evidence or cross-examine the plaintiff. The Trial Court on 07.11.2012 rejected specific performance but ordered refund of Rs.2,26,40,370/-. The appellant filed a first appeal on 03.04.2013. Meanwhile, a partition suit (O.S. No.1298 of 1999) between family members had an interim injunction restraining alienation of properties, including the suit property (Item No.7). That suit was dismissed for non-prosecution on 18.11.2014, vacating the injunction. The appellant and defendants entered into an MoU, which Respondent No.1 admitted in his written statement. The High Court, in the first appeal, set aside the trial court judgment and decreed specific performance on 14.02.2018. In that appeal, Senior Advocate Mr. P.S. Dani appeared for Respondent No.1 and made several arguments, all of which were considered and rejected. Respondent No.1 then filed a review petition claiming he never appointed the advocate who appeared for him and that there was no written Vakalatnama. The High Court allowed the review and recalled its judgment on 27.09.2018. The Supreme Court examined the facts: notices of appeal were served on Respondent No.1 by affixation, registered post (returned unclaimed), and paper publication in 'Prabhat' newspaper on 18.01.2016. The High Court declared service complete on 22.02.2016. The Supreme Court noted that the arguments made by Mr. Dani were all in defence of Respondent No.1 and not collusive. Affidavits from family members and the advocate confirmed that oral instructions were given to engage the counsel. The Court held that after due service, if a party chooses not to appear, he cannot later complain. The absence of a written Vakalatnama is an irregularity that can be cured and does not warrant recall unless prejudice or collusion is shown. The argument regarding the interim injunction was also considered in the original judgment (para 33). The Supreme Court set aside the High Court's review order and restored the judgment dated 14.02.2018 decreeing specific performance.
Headnote
A) Civil Procedure - Review - Recall of Judgment - Order 47 Rule 1 CPC - Non-filing of Vakalatnama - The High Court recalled its judgment on the ground that the advocate who appeared for the respondent had no written Vakalatnama. The Supreme Court held that since the respondent was duly served and chose not to appear, and the arguments made were not collusive but in his interest, the recall was unjustified. The mere absence of a written Vakalatnama, without any prejudice or collusion, does not warrant recall of a judgment. (Paras 10-14) B) Specific Performance - Service of Notice - Effect of Non-Appearance - The respondent was served by affixation, registered post (returned unclaimed), and paper publication. The High Court declared service complete. The Supreme Court held that after due service, if a party chooses not to appear, he cannot later complain of being unheard. (Paras 10-11) C) Civil Procedure - Vakalatnama - Irregularity - The absence of a written Vakalatnama is at best an irregularity that can be cured. If the judgment had been in favour of the respondent, he would have ratified the appearance. The court must examine whether the irregularity caused any prejudice or collusion. (Paras 8, 12)
Issue of Consideration
Whether the High Court was justified in recalling its judgment in a first appeal on the ground that the advocate who appeared for the respondent had no written Vakalatnama, despite the respondent having been duly served and the arguments made being in his interest.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court dated 27.09.2018, and restored the High Court's judgment dated 14.02.2018 decreeing specific performance in favour of the appellant.
Law Points
- Review jurisdiction
- Recall of judgment
- Vakalatnama requirement
- Service of notice
- Collusion
- Specific performance
- CPC Order 47 Rule 1
