A VIJAYAKUMAR Vs. H S HANUMANTHAPPA

JUDGEMENT

(1.) i have heard the appellants learned Advocate in some detail in this appeal. The appellants represent the original defendants against whom the decree has been passed. It is a decree for possession and payment of certain mesne profits. In the first instance, appellants learned Advocate submits that the entire case of the plaintiff is that he is the allottee of the disputed site and therefore entitled to possession thereof is incorrect for the reason that the allotment made to him by the b.d.a. was subsequently cancelled insofar as the authority had taken a decision to reconvey the site to the original revenue holder. The appellants learned Advocate submits that consequently, the rights of his client stands revived by virtue of this decision. An application was made before the trial court for production of all the relevant records from the b.d.a. a few records other than those which support their case were received but the record also indicates that the defendants thereafter virtually stopped attending the court and defending the proceedings. The appellants learned Advocate submits that an out of court understanding had been arrived at with the respondent and the appellants had made certain payments to him pursuant to that settlement which was why they were under the impression that he has withdrawn the suit. It is only after the decree was passed that he came to know that this had not been done.

(2.) a strong plea has been canvassed by the appellants learned Advocate that they be given an opportunity of securing the documents in question and defending the suit on merits because according to the appellants learned advocate, the present decree has been passed on the basis of a incomplete record. A submission was also advanced that even if the appellants are required to pay costs, that they may be penalised to this extent but that they should not be deprived of the opportunity of defending the suit. This plea has been opposed by the other side.

(3.) the basic question that falls for determination in cases of the present type is as to whether there has been any miscarriage of Justice insofar as whether the appellants have been deprived of a full and fair opportunity of defending the proceedings? If a case has gone by default due to circumstances beyond the control of a litigant, a court will always come to the assistance of that litigant if it means having to reopen the proceeding that has been concluded. For this to be done however, it must be demonstrated that despite due diligence and despite the best efforts of the party that something has gone wrong before the court below and that the ultimate result is a total miscarriage of justice. It is from this angle that the facts of the present case will have to be tested.