The right to a fair hearing is fundamental in judicial proceedings, and procedural flaws that deny a party the opportunity to present their case can lead to the reversal of a judgment.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)

The captioned appeal is filed by the defendant assailing the judgment and decree rendered in a suit for specific performance in O.S.No.100/2017.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

Plaintiff filed the suit for specific performance by placing reliance on an agreement to sell alleged to have been executed by defendant on 11.6.2015. The trial Court in absence of contest by defendant has answered issue Nos.1 and 2 in the affirmative and the suit is decreed granting the relief of specific performance of contract.

The said judgment is under challenge.

4. Learned counsel appearing for the defendant referring to the trial Court records has succeeded in demonstrating before this Court that the procedure adopted by the learned Judge is fundamentally flawed and without affording an opportunity to the defendant to contest the suit, has hastily proceeded to decree the suit.

5. Learned counsel appearing for the defendant referring to the records would bring to the notice of this Court that though defendant tendered her chief- examination by way of an affidavit, however, she failed to mount the witness box and that compelled the learned Judge to take the evidence of defendant as nil. However, he would point out that defendant immediately filed an application requesting the learned Judge to recall the order and permit the defendant to lead evidence. Though this application was filed on 16.11.2018 and the copy was served on the learned counsel appearing for the plaintiff and the same is noted in the order sheet dated 17.11.2018, he would point out that the learned Judge has struck of the entry in the order sheet relating to the filing of the application and has proceeded to decide the suit without permitting defendant to contest the proceedings.

He would also point out that learned Judge having declined to pass orders on the application has however, drawn an adverse inference against the defendant under Section 114(1)(g) of the Indian evidence Act and therefore, he would try to persuade this Court to set aside the judgment and remit the matter to the trial Court.

6. Per contra, learned counsel for the plaintiff has vehemently argued and contended that there was complete laxness on the part of the defendant and as she was not diligent in contesting the suit, the learned Judge was justified in declining any further opportunity. He would further point out that since defendant was adopting dilatory tactics, the learned Judge has proceeded to decide the suit on merits and therefore, the judgment and decree rendered by the trial Court is in accordance with law and does not warrant any interference at the hands of this Court.

7. Heard the learned counsel appearing for defendant, learned counsel appearing for plaintiff. We have carefully gone through the order sheet and lower court records.

8. The following point would arise for consideration:

"Whether the judgment and decree rendered by the trial Court in O.S.No.100/2017 is sustainable since the learned Judge without deciding the application filed by the defendant wherein a request was made to recall the order recording the evidence of defendant as Nil and permit the defendant to lead evidence was not decided and the learned Judge however proceeded to decree the suit?"

9. Upon a thorough perusal of the records, it is evident that while the defendant had initially tendered her chief-examination through an affidavit, she did not mount the Witness Box to provide oral testimony. This led the learned Judge to treat the defendant’s evidence as Nil, thereby proceeding to decide the case without considering any substantive defense from her side. However, the records clearly establish that the defendant, upon realizing the consequence of not mounting the witness box, promptly filed an application on 17.11.2018 requesting the Court to recall the