Judgment:
Saldanha, J
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 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had made certain payments to him pursuant to that settlement which was why they were under the impression that he has withdrawn the suit.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 an 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.
4. In the present proceeding, it is demonstrated that the plaintiff is the allottee to whom the B.D.A. who is the Authority who had acquired the lands has made the allotment. If at all the defendants possess any rights and even assuming they did, those rights stood completely extinguished by virtue of the effect of the acquisition when the lands in question stood vested in the State and it was within the legal competence of the Authority therefore to make a legally valid allotment to the plaintiff. The plaintiff has thereafter been deprived of the use of the site that belongs to him and to my mind, the defendants have virtually no case. It is quite obvious therefore that efforts were made to prolong the proceedings as far as possible before the trial Court and after a stage, even those efforts were given up. A mere averment to the effect that the allotment was cancelled, is wholly insufficient insofar as there is not even an iota of evidence on record to support this plea. Further more, it needs to be noted, that the allotment as established before the trial Court is deemed to be a valid allotment and one which holds good unless and until the evidence to the contrary is produced. It is the case of the appellants that they had made some applications for reconveyance, Such applications are customarily made and unless an order is passed on that application allotting the site back to the appellants, it is pointless in arguing that some such application was made in the distant past and that it is pending. I need to observe that it is within the discretion of the B.D.A. if such an application is on file to consider the same and to pass appropriate orders thereof. That however cannot be the subject-matter of the present Appeal. Undoubtedly, the B.D.A. has considered at different times, the human angle and the aspect of hardship. Pursuant to this, a decision was invariably taken in cases of this type that if in principle the B.D.A. was satisfied that the party qualified for reconveyance and it was not possible to do so, that some other site should be allotted. In keeping with that principle, having regard to the fact that the present defendants by virtue of the decree, will require some alternate place, the B.D.A. shall consider their application for an alternative if it is correct that the same is still pending.
5. In the present proceeding, quite apart from the fact that the defendants were served, on the record of the trial Court there is virtually no defence that has been made out. It is true that an application for summoning of some records was made at one point of time but that application was not diligently followed up. Even if it was, to my mind, it would not have made any difference to the grant of reliefs to the plaintiff who on the facts of the present case, would in any case be entitled to a decree. Under these circumstances, any interference with the order or a remand at this late point of time would be a gross miscarriage of Justice because a Court has got to take cognizance of the fact that there are two parties to a litigation and if undue or improper indulgence is shown to one of them, that it is at the expense of the other party. This is an aspect of the matter which Courts, particularly the Appeal Courts require to bear in mind while dealing with the applications of the present type. On merits, this is a case in which absolutely no interference is called for. I am conscious of the fact that this is a first appeal but it is a requirement of law that unless it is demonstrated to the Appeal Court that the judgment and decree appealed against require modification or revision, an Appeal cannot be admitted as a matter of course if it is devoid of substance. In this view of the matter, the Appeal fails and stands dismissed.
6. The decree passed by the trial Court is one for handing over of possession. Having regard to the fact that the appellants' learned Advocate points out that they are residing in the premises, to my mind, it would be only just and proper that they be afforded reasonable time to make alternate arrangements. For this purpose, it is directed that the decree in question shall not be executed for a period of six months from today. Subject to this direction, the Appeal fails and stands disposed of.