[Cites 13, Cited by 0]
Bombay High Court
J B Metal Industries Pvt Limited vs Prashant Gopal Sharma And Anr on 13 March, 2026
2026:BHC-AS:12942
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.17223 OF 2025
J.B. Metal Industries Pvt. Limited ...Petitioner
V/s.
Prashant Gopal Sharma and Anr. ...Respondents
________________
Mr. Gauraj Shah with Mr. Sameer Kolge and Mr. Priyanshu Santosh
Mishra for the Petitioner.
Mr. Ashish Kamat, Senior Advocate with Ms. Huzan Bhumgara i/b. Mr.
Jatin Lalwani for Respondent Nos. 1 and 2.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 13 MARCH 2026.
Judgment:
1) By this Petition, Petitioner /Defendant challenges order dated 11
September 2025 passed by the Appellate Bench of the Small Causes
Court allowing Misc. Appeal No.31 of 2024 and setting aside order dated
3 February 2024 passed by the learned Judge, Small Causes Court on
Application at Exhibit-9 filed in T.E. Suit No.152 of 2022. The Appellate
Court has granted temporary injunction in favour of the Plaintiffs by
restraining the Defendant from dealing with, disposing of, transferring or
alienating, assigning or parting with the possession of suit premises or
from carrying out any work of demolition, additions, alterations or
constructions therein.
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2) Respondents / Plaintiffs have instituted T.E. Suit No.152 of 2022
seeking ejectment of Petitioner/Defendant from the demised property
being land admeasuring 7,260 sq. yards, at Survey No.66(Part), bearing
C.T.S. No.96/1 to 3, situated at Saki Village, Saki Vihar Road, Saki Naka,
Mumbai- 400 072 (suit property). Plaintiffs have also sought direction for
removal of structures from the suit property and has sought enquiry into
mesne profits under Order XX Rule 12 of the Code of Civil Procedure,
1908 (the Code). It is Plaintiffs' pleaded case in the Plaint that they are
owners /landlords of the suit property. It is their pleaded case that
Plaintiffs' father Mr. Gopal Chandrabhan Sharma was earlier a lessee in
respect of the suit property and purchased the reversionary rights in the
suit property from the owners and this is how Plaintiffs' father became
owner in respect thereof. After the death of their father on 31 January
1998, Plaintiffs claim ownership in the suit property. According to the
Plaintiffs, the other legal heirs of Gopal Chandrabhan Sharma have
executed Release Deed in respect of the suit property in their favour.
3) In the Suit, Plaintiffs have pleaded that an Indenture of sub-lease
dated 25 September 1959 was executed in favour of the predecessors of
the Defendant granting sub-lease in respect of the suit property for a
tenure of 99 years. It is pleaded that the Defendant was permitted to put
up a structure for the use as a factory for the purpose of manufacturing
activities. Plaintiffs have pleaded that a construction has been put up by
the Defendant unauthorisedly and in breach of covenants of lease and
without consent and/or knowledge of the Plaintiffs. The Defendant has
committed breach of conditions of the sub-lease by granting licenses in
respect of the portions of the structure constructed on the suit property.
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It is further pleaded that the Defendant has sold a portion of the land in
the suit property to one 'Dankal (India) Private Limited' in the year 2006
and another portion is sold to 'Natraj Paper Box Factory' in the year
2005. It is further stated that the Defendant has further created third
party rights in favour of 'SNDT Realty Private Limited', who has further
created rights in favour of 'Hotel Blue Executive'.
4) The Defendant appeared in the Suit and filed its written statement.
The Plaintiffs filed Application at Exhibit-9 seeking temporary
injunction in the Suit in addition to various other prayers. The Trial
Court however, considered the Application at Exhibit-9 only for
temporary injunction. The Defendant filed purshis for treatment of the
written statement as reply to the Application. After hearing the parties,
the Trial Court proceeded to pass order dated 3 February 2024 rejecting
the Application at Exhibit-9 and granting liberty to the Plaintiffs to file
separate Application in respect of the remaining prayers other than
injunction. Plaintiffs filed Misc. Appeal No.31 of 2024 before the
Appellate Bench of the Small Causes Court challenging the order dated 3
February 2024. By the impugned order dated 11 September 2025, the
Appellate Bench has proceeded to allow the Appeal by setting aside the
order of the Trial Court. The Appellate Court has allowed the Application
at Exhibit-9 to the extent of prayer clause (c) and has granted temporary
injunction in favour of the Plaintiffs in following terms:
Pending the hearing and final disposal of the suit, the Defendant, its
servants, agents or persons claiming through them be restrained by an
order and injunction of this Hon'ble Court from dealing with,
disposing off, transferring or or parting with the alienating, assigning
possession or occupation of the Suit Property or any part thereof or
from inducting any third party therein or from creating any third party
rights, claim or interest therein or from carrying out any work of
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demolition, additions, alterations or constructions in or to the Suit
Property or any part thereof or from removing and/or mis-
appropriating any of the Plaintiffs' property in and from the Suit
Property viz. piece and parcel of land or ground admeasuring about
7260 sq. yards or thereabout covered by Survey no. 66 (Part) bearing
corresponding C.T.S No. 96/1 to 3 situate lying and being at Saki
village, Saki Vihar Road, Saki Naka, Mumbai-400 072.
Aggrieved by order dated 11 September 2025 the Defendant has filed the
present Petition.
5) I have heard Mr. Shah, the learned counsel appearing for the
Petitioner, who submits that the Appellate Court has grossly erred in
reversing well-considered decision of the Trial Court. That the Trial
Court denied equitable relief of temporary injunction taking into
consideration gross suppression of material facts by the Plaintiffs. That
the Plaintiffs suppressed from the Court that the Defendant is the owner
of the structure vide Indenture dated 25 September 1959. That the
Plaintiffs also suppressed the factum of filing of earlier Suit bearing
R.A.E. & R. Suit No.762 of 1992. He relies on judgment of this Court in
Elder Neutraciticals Private Limited V/s. Elder Prroject Limited 1 in
support of his contention that equitable relief of temporary injunction
cannot be granted in favour of the Plaintiff, who approaches the Court
with unclean hands. He otherwise submitted that the Defendant has not
committed breach of conditions of the lease. That the transactions in
question have been effected several years ago and there was no cause for
consideration of Plaintiffs' application for temporary injunction at such
belated stage. He would accordingly pray for setting aside the impugned
order passed by the Appellate Bench.
1 Interim Application (L) No.35091 of 2025, decided on 9 March 2026.
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6) Mr. Kamat, the learned Senior Advocate appearing for the
Plaintiffs opposes the Petition submitting that the non-disclosure about
Indenture dated 25 September 1959 and filing and dismissal of earlier
Suit has absolutely no bearing for deciding Plaintiffs' application for
temporary injunction. That this position is rightly appreciated by the
Appellate Court. That the Plaintiffs have not suppressed any material
fact, which was necessary for the purpose of deciding application for
temporary injunction. In support, Mr. Kamat relies on judgments of the
Apex Court in S.J.S. Business Enterprises (P) LTD. V/s. State of Bihar and
Others 2 and Arunima Baruah V/s. Union of India and Others 3. That the
Defendant has admittedly committed breach of the terms of tenancy by
creating several third-party rights in the suit property. That the
Defendant represented to the world that it is owner of the demised land.
That the Defendant has expanded the structure by erecting a new RCC
building comprising of ground plus mezzanine, first and second floors.
That in the light of brazen breaches of tenancy committed by the
Defendant, it was necessary for the Court to injunct it from creating
further third-party rights and putting up any additional construction in
the suit property.
7) Mr. Kamat further submits that the present Suit is being
prosecuted by the children of the predecessor-in-title of the land, who
were not aware about filing of previous suit by their father, which is a
reason why no disclosure thereabout could be made. That the said Suit
was for ejectment under the old Rent Act, which applied even to vacant
2 (2004) 7 SCC 166
3 (2007) 6 SCC 120
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lands and is dismissed for non-prosecution and not on merits. That the
current suit is under Section 41 of the Presidency Small Causes Courts
Act, 1888 for ejectment of a lessee, who does not enjoy the protection of
Maharashtra Rent Control Act, 1999. That the Defendant has committed
acts of breach of lease post dismissal of the Suit and therefore principle
of res judicata would not apply. He further submits that the Defendant
has defaulted in payment of rent for the last several years. That the lease
was earlier terminated on 18 April 1985 due to default in payment of rent
since 1 January 1978. A fresh termination notice is served on the
Defendant on 15 September 2022. Lastly, Mr. Kamat submits that interim
injunction does not prevent the Defendant from enjoying the property
and all that is does is to prevent the Defendant from creating further
third party rights and from carrying out any additional construction in
the suit property. He would accordingly pray for dismissal of the Petition.
8) Rival contentions raised on behalf of the parties now fall for my
consideration.
9) The Plaintiffs have filed the Suit for ejectment of the Defendant,
who is inducted in respect of the open land vide Indenture of sub-lease
dated 25 September 1959. It appears that the Plaintiffs' father was the
original lessee, who executed sub-lease in favour of the predecessor in
title of the Defendant. Plaintiffs' father subsequently purchased the suit
property vide Conveyance Deed dated 30 March 1964.
10) On 25 September 1959 two documents were executed. Firstly, an
Indenture of sub-lease was executed with the sublessee -Chandrabhan
Sharma, to which 'International Structure Engineering Work Private
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Limited Company' was a confirming party. By a second document
branded as Indenture dated 25 September 1959, the Petitioner's
predecessor-in-title purchased from the International Structure
Engineering Work Private Limited' the buildings standing on the
demised land (suit property). This is how Petitioner's predecessor-in-
title became lessee in respect of the suit property but owner in respect of
the structures standing thereon.
11) In their Plaint however, Plaintiffs have conveniently disclosed
execution of only the Indenture of sub-lease dated 25 September 1959
and suppressed the factum of purchase of buildings vide separate
Indenture dated 25 September 1959 by the predecessor-in-title of the
Petitioner/Defendant. Going further, it prima facie appears that the
Plaintiffs have pleaded a false case in the Plaint that the Defendant has
constructed a structure of approximately 38860 sq.ft. on the suit
property without the consent and /or knowledge of the Plaintiffs. The
pleaded case of the Plaintiffs in paragraph 5 of the Plaint is as under:-
5. ...The Plaintiffs state that in defiance to the above agreed clause of
said Agreement, the Defendant has constructed a structure of
approx. 38860 sq.ft. on the Suit Property without the consent and/or
knowledge of the Plaintiffs. The Plaintiffs further state that, the
Defendant has, in flagrant violation of the Plaintiffs rights,
continued to put up illegal and unauthorised constructions on the
Suit Property whereas at the initial stage of execution of the said
Agreement the Defendant was allowed to, and subject to permissions
of statutory authority/s, put up a structure intended to be used as
their factory, for purposes of manufacturing, the Defendant
notwithstanding the knowledge that the said Agreement subsisting
by and between the parties hereto had come to an end and by reason
of the latches as above, persisted in putting up constructions on the
Suit Property. ...
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12) Thus, Plaintiffs have prima facie indulged in gross suppression of
the fact that the buildings were already standing on the demised land
and that the predecessor-in-title of the Defendant has purchased the
said buildings for valuable consideration vide a separate Indenture dated
25 September 1959 executed by the erstwhile owner- International
Structure Engineering Work Private Limited Company. Instead of
disclosing that the Defendant is the owner in respect of the structures
purchased vide Indenture dated 25 September 1959, the Plaintiffs have
prima facie falsely pleaded that the construction on the demised land is
unauthorised. Far from disclosing that the there were buildings on the
demised land at the time of execution of Indenture of sub-lease dated 25
September 1959, the Plaintiffs have further falsely pleaded that ' at the
initial stage of execution of the said Agreement the Defendant was
allowed to, and subject to permissions of statutory authority/s, put up a
structure intended to be used as their factory '. Thus, the Plaint prima
facie appears to be replete with blatantly false statements. The Plaintiffs
have also suppressed the factum of filing of RAE and R. Suit No.762 of
1992 by their father against the Defendant for recovery of possession of
the suit premises and dismissal of the said Suit in default by order dated
5 July 1993.
13) The Trial Court, in my view, had rightly refused to exercise
discretion in favour of the Plaintiffs for granting the equitable relief of
temporary injunction. The Trial Court has also rightly taken into
consideration the fact that the Defendant has purchased the structure on
the suit property and there is no documentary proof to show that any
transaction is done by it in respect of the land beneath such structure.
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14) The Appellate Bench of the Small Causes Court has egregiously
erred in condoning the Plaintiffs' conduct of indulgence in gross
suppression. The Appellate Court has emphasised the fact that a party
invoking the equitable jurisdiction must itself act equitably by
approaching the Court with clean hands and that suppression of material
facts disentitles a party from seeking discretionary relief. Findings
recorded by the Appellate Court in paragraphs 16 and 29 in the
impugned order read thus:
16.At the same time, this Court is conscious of the well- settled
principle that an injunction is an equitable relief. A party invoking
equity must itself act equitably and approach the Court with clean
hands. If any party has suppressed material facts or indulged in
inequitable conduct, it disentitles itself from such discretionary relief.
Importantly, injunction is not a matter of right but lies within the
sound discretion of the Court.
Xxx
29. In our considered view, therefore, the rejection of the injunction
application solely on the ground of concealment was improper. The
Trial Court ought to have examined the matter in light of the
established principles governing injunctions.
15) Despite emphasising the principle that suppression of material
facts disentitles a Plaintiff from seeking equitable and discretionary
relief of injunction, the Appellate Court has still proceeded to grant one
in Plaintiffs' favour. The Appellate court has grossly erred in assuming
that the Defendant has sought to deny Plaintiffs' title. Plaintiffs' title is
denied in respect of the structures purchased by the Defendant vide
Indenture dated 25 September 1959. Thus, the impugned order is passed
by the Appellate Court based on totally erroneous assumptions. The
Defendant has merely dealt with contents of paragraphs 2 and 3 of the
Plaint relating to Conveyance Deed dated 30 March 1964 and based on
the averments in paragraph 13 of the written statement, it is difficult to
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arrive at a conclusive finding at this stage that there is any denial of title
in respect of the land on the part of the Defendant.
16) The Appellate Court has taken into consideration the suppressed
document, being Indenture dated 25 September 1959, and has recorded a
finding in paragraph 26 that 'while the defendants may have purchased
certain structures from the Company, they acquired no independent title
in the land'. However, the Appellate Court has glossed over the fact that
the Defendant has not claimed any title in the land. The findings of the
Appellate Court that the 'sub-lease and the Purchase Deed being
contemporaneous documents, the latter cannot dilute the legal
relationship established by the former.' is recorded in ignorance of the
fact that the Plaintiffs have alleged breach of conditions of sub-lease in
respect of activities of the Defendant in respect of the structure and that
therefore ownership of structure by Defendant is a relevant factor to be
considered. On the basis of further erroneous finding that ' as the
relationship between the parties flows from the Sub-lease alone', the
Appellate Court has absolved the Plaintiffs from the responsibility of
pleading the factum of Defendant having been purchased the structure
vide Indenture executed on 25 September 1959. The findings recorded by
the Appellate Court in paragraph 26 of the impugned order read thus:
26. Thus, while the defendants may have purchased certain structures
from the Company, they acquired no independent title in the land.
The plaintiffs' grandfather, as lessee under the head lease, retained
reversionary rights, which later passed by conveyance to the
plaintiffs' father. The Sub-lease and the Purchase Deed being
contemporaneous documents, the latter cannot dilute the legal
relationship established by the former. Consequently, the plaintiffs
were not obliged to plead the Purchase Deed in their plaint, as the
relationship between the parties flows from the Sub-lease alone. The
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Trial Court's view that suppression of this document was fatal is,
therefore, untenable.
(Emphasis added)
17) Similarly, the Appellate Court has opened an escape door for
the Plaintiffs in respect of their act of suppression about filing of RAE &
R. Suit No.762 of 1992 by holding in paragraph 27 as under:
27. Similar is the position regarding the alleged concealment of R.A.E.
& R. Suit No. 762 of 1992, filed by the plaintiffs' father against the
defendants. The said suit was admittedly dismissed for default. No
material has been placed on record to show how such dismissal
affected the plaintiffs' rights. Mere non-disclosure of a suit that
ended in default cannot, by itself, defeat their present claim.
18) The entire approach of the Appellate Court is thus faulty. It has
proceeded to reward a litigant who has indulged in gross suppression of
material facts by granting the discretionary relief of temporary
injunction.
19) Injunction is an equitable relief and party seeking the same must
approach the Court with clean hands. If the court notices that the
Plaintiff has approached it with unclean hands and by suppressing the
material facts and documents, the Court can straightaway refuse to grant
temporary injunction in favour of the Plaintiff without even looking into
the merits of the case. Law in this regard is well settled by several
judgments of the Apex Court. Reference in this regard can be made to the
judgments in Ramjas Fundation and another V/s. Union of India and
others4 and Prestige Lights Limited V/s. State Bank of India 5. Plaintiffs
cannot indulge in suppression of material facts and then seek to explain
that what is suppressed is not material. In Bhaskar Laxman Jadhav and
4 (2010) 14 SCC 38
5 (2007) 8 SCC 449
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Others V/s. Karamveer Kakasaheb Wagh Education Society and Others 6
the Apex Court has held that it is not for a litigant to decide what factor
is material for adjudication of a case and what is not. It is an obligation
of a litigant to disclose all facts of a case and leave the decision making
to the Court. Recently, this Court had an occasion to deal with the effect
of suppression on Plaintiff's entitlement to temporary injunction in
Elder Neutraciticals Private Limited (supra), in which this Court has
surveyed various decisions and has held in paragraph 42 to 46, 51, 52 and
53 as under:
EFFECT OF SUPPRESSION
42) It is well settled position that injunction is an equitable relief
and a party seeking the same must approach the Court with clean
hands. The relief of temporary injunction can be denied to a party
only on the ground of he not approaching the Court with clean
hands. An instructive judgment on the issue is Abdul Cadur Allibhoy
(supra) in which the Full Bench of this Court has emphasized the
requirement of Plaintiff approaching the Court with clean hands. In
relation to use of trademark, the Court observed that if the Plaintiff
himself is found selling goods of another or if his trademark gives a
false description of the article, he violates the rule on which he seeks
relief against the Defendant.
43) In Ramjas Foundation (supra), the Apex Court has held that
it is the duty of the plaintiff to state the whole case fully and fairly
before the Court. It has held that when Defendant applies for
vacation of injunction on the ground that material fact has been
suppressed or has not been properly brought forward, the Plaintiff
must be told that the Court would not decide as the faith of the
Court is broken and the injunction must be vacated. It is held in
paras-21, 22, 23 and 24 as under:
21.The principle that a person who does not come to the court
with clean hands is not entitled to be heard on the merits of his
grievance and, in any case, such person is not entitled to any
relief is applicable not only to the petitions filed under Articles
32, 226 and 136 of the Constitution but also to the cases
instituted in others courts and judicial forums. The object
underlying the principle is that every court is not only entitled
but is duty bound to protect itself from unscrupulous litigants
6 (2013) 11 SCC 531
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who do not have any respect for truth and who try to pollute the
stream of justice by resorting to falsehood or by making
misstatement or by suppressing facts which have a bearing on
adjudication of the issue(s) arising in the case.
22. In Dalglish v. Jarvie [(1850) 2 Mac & G 231 : 42 ER 89] , Mac &
G at p. 238, Lord Langdale and Rolfe, B. observed: (ER p. 89)
"It is the duty of a party asking for an injunction to bring under
the notice of the court all facts material to the determination of
his right to that injunction; and it is no excuse for him to say that
he was not aware of the importance of any fact which he has
omitted to bring forward."
23. In Castelli v. Cook [(1849) 7 Hare 89: 68 ER 36] , Hare at p. 94,
Wigram, V.C. stated the rule in the following words: (ER p. 38)
"... a plaintiff applying ex parte comes ... under a contract with
the court that he will state the whole case fully and fairly to the
court. If he fails to do that, and the court finds, when the other
party applies to dissolve the injunction, that any material fact
has been suppressed or not properly brought forward, the
plaintiff is told that the court will not decide on the merits, and
that, as he has broken faith with the court, the injunction must
go."
24. In Republic of Peru v. Dreyfus Bros. & Co. [55 LT 802] , LT at p.
803, Kay, J. held as under:
"I have always maintained, and I think it most important to
maintain most strictly, the rule that, in ex parte applications to
this Court, the utmost good faith must be observed. If there is an
important misstatement, speaking for myself, I have never
hesitated, and never shall hesitate until the rule is altered, to
discharge the order at once, so as to impress upon all persons
who are suitors in this Court the importance of dealing in good
faith in the Court when ex parte applications are made."
(emphasis added)
44) In Prestige Lights Limited (supra), while dealing with the
issue of suppression in a petition filed before the High Court under
Article 226 of the Constitution of India, the Apex Court has held in
paras-33 and 34 as under:
33. It is thus clear that though the appellant Company had
approached the High Court under Article 226 of the
Constitution, it had not candidly stated all the facts to the
Court. The High Court is exercising discretionary and
extraordinary jurisdiction under Article 226 of the Constitution.
Over and above, a court of law is also a court of equity. It is,
therefore, of utmost necessity that when a party approaches a
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High Court, he must place all the facts before the Court without
any reservation. If there is suppression of material facts on the
part of the applicant or twisted facts have been placed before
the Court, the writ court may refuse to entertain the petition
and dismiss it without entering into merits of the matter.
34. The object underlying the above principle has been
succinctly stated by Scrutton, L.J., in R. v. Kensington Income
Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] ,
in the following words:
"it has been for many years the rule of the court, and one which
it is of the greatest importance to maintain, that when an
applicant comes to the court to obtain relief on an ex parte
statement he should make a full and fair disclosure of all the
material facts--facts, not law. He must not misstate the law if he
can help it--the court is supposed to know the law. But it knows
nothing about the facts , and the applicant must state fully and
fairly the facts, and the penalty by which the court enforces that
obligation is that if it finds out that the facts have not been fully
and fairly stated to it, the court will set aside, any action which
it has taken on the faith of the imperfect statement."
(emphasis supplied)
45) Though the above observations are made in the context of a
Writ Petition filed under Article 26 of Constitution Of India, the
same has been repeatedly followed by this Court while dealing with
the issue of vacation of ex-parte injunction based on suppression in
suits as well.
46) In Bhaskar Laxman Jadhav (supra), the Apex Court has held
that it is not for a litigant to decide what fact is material for
adjudicating a case and what is not material. It is the obligation of a
litigant to disclose all the facts of the case and leave the decision
making to the Court. It is held that it is a duty of the litigant to come
upfront and clean with all material facts and then leave it to the
Court to determine whether or not a particular fact is relevant for
arriving at the decision. It has held in paras-44 and 47 of the
judgment as under :-
44. It is not for a litigant to decide what fact is material for
adjudicating a case and what is not material. It is the obligation
of a litigant to disclose all the facts of a case and leave the
decision-making to the court. True, there is a mention of the
order dated 2-5-2003 in the order dated 24-7-2006 passed by
the JCC, but that is not enough disclosure. The petitioners have
not clearly disclosed the facts and circumstances in which the
order dated 2-5-2003 was passed or that it has attained finality.
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47. A mere reference to the order dated 2-5-2003, en passant, in
the order dated 24-7-2006 does not serve the requirement of
disclosure. It is not for the court to look into every word of the
pleadings, documents and annexures to fish out a fact. It is for
the litigant to come upfront and clean with all material facts
and then, on the basis of the submissions made by the learned
counsel, leave it to the court to determine whether or not a
particular fact is relevant for arriving at a decision.
Unfortunately, the petitioners have not done this and must
suffer the consequence thereof.
(emphasis added)
xxx
51) The law thus is fairly well settled that Plaintiff has a duty to
make full disclosure of all material facts and it is not for the Plaintiff
to decide which fact is material and which is not. Plaintiff cannot
first indulge in suppression of facts and upon being caught, raise a
defense that what is suppressed is not material. Mr. Tamboly has
relied upon judgment of this Court in International Association of
Lions Club (supra) in support of his contention that to arrive at a
case of suppression of facts which disentitles party to any relief, the
facts suppressed must be material to the outcome of the dispute. In
case before this Court, the Defendants therein had accused Plaintiff
of non-disclosure of facts of institution of civil suit before the
District Court of Jabalpur and it was contended that Plaintiff was not
entitled to discretionary relief of injunction on account of
suppression. This Court considered whether Plaintiffs were obliged
to disclose the fact of institution of the said suit filed in
representative capacity by another person under Section 120 of the
Trade and Merchandise Marks Act, 1950, which provision envisaged
for a direction against a person who threatens an action or
proceeding for infringement of trademark. This Court referred to
various judgments and held that the scope of such suit was very
limited where only justifiability of threats given by the Defendant
could be adjudicated therein. This Court further held that any other
finding recorded in such a Suit becomes irrelevant in the context of
limited scope of enquiry. It is in the light of these peculiar facts that
this Court held that it was not necessary for the Plaintiff therein to
disclose filing of the suit before Jabalpur Court. Therefore, the
judgment in International Association of Lions Club is clearly
distinguishable and would have no application to the facts of the
present case, where there is suppression of material necessary for
deciding Plaintiff's entitlement to temporary injunction.
52) Mr. Tamboly has also relied on judgment of the Apex Court in
Government of NCT of Delhi (supra) in support of the contention
that the suppression must be of facts material to the dispute.
Referring to its judgments in S.J.S. Business Enterprises (P) Limited
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Versus. State of Bihar and others7 and Arunima Baruah Versus.
Union of India and others 8 the Apex Court has held in para 33 to 37
as under:
F.2. Suppression of material facts by appellants
33. The counsel on behalf of the landowners have contended
that the conduct of the appellants disqualifies them from
seeking any relief. They assert that the appellants filed the
present appeals, specifically under Group B-1, without
disclosing that civil appeals filed by another
appellant/authority against the same impugned order has
already been dismissed. Furthermore, this action is deemed as
providing an inaccurate declaration under Order XXI Rule 3(2)
of the Supreme Court Rules, 2013.
34. Before addressing the aforesaid contention, we may refer to
the law laid down in this regard.
35. A Bench of two Hon'ble Judges of this Court in S.J.S.
Business Enterprises (P) Ltd. v. State of Bihar held that a fact
suppressed must be material; that is, if it had not been
suppressed, it would have influenced the merits of the case. It
was held thus
"13. As a general rule, suppression of a material fact by a
litigant disqualifies such litigant from obtaining any relief.
This rule has been evolved out of the need of the courts to
deter a litigant from abusing the process of court by deceiving
it. But the suppressed fact must be a material one in the sense
that had it not been suppressed it would have had an effect on
the merits of the case. It must be a matter which was material
for the consideration of the court, whatever view the court may
have taken [R. v. General Commrs. for the purposes of the
Income Tax Act for the District of Kensington , (1917) 1 KB
486 : 86 LJKB 257 : 116 LT 136 (CA)] ...
xxx
36. Further, a Bench of two Hon'ble Judges of this Court in
Arunima Baruah v. Union of India following the aforesaid
dictum, held thus :
"12. It is trite law that so as to enable the court to refuse to
exercise its discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression
7(2004) 7 SCC 166
8 (2007) 6 SCC 120
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whereof would disentitle the appellant to obtain a
discretionary relief, would depend upon the facts and
circumstances of each case. Material fact would mean material
for the purpose of determination of the lis, the logical corollary
whereof would be that whether the same was material for grant
or denial of the relief. If the fact suppressed is not material for
determination of the lis between the parties, the court may not
refuse to exercise its discretionary jurisdiction. It is also trite
that a person invoking the discretionary jurisdiction of the
court cannot be allowed to approach it with a pair of dirty
hands. But even if the said dirt is removed and the hands
become clean, whether the relief would still be denied is the
question."
37. Law is well settled that the fact suppressed must be
material in the sense that it would have an effect on the merits
of the case. The concept of suppression or non-disclosure of
facts transcends mere concealment; it necessitates the
deliberate withholding of material facts--those of such critical
import that their absence would render any decision unjust.
Material facts, in this context, refer to those facts that possess
the potential to significantly influence the decision-making
process or alter its trajectory. This principle is not intended to
arm one party with a weapon of technicality over its adversary
but rather serves as a crucial safeguard against the abuse of the
judicial process.
(emphasis added)
53) Thus, as held in Government of NCT of Delhi, material facts
refer to those facts that possess the potential to significantly
influence the decision-making process or alter its trajectory. In the
present case, I am fully convinced the material relating to (i)
ownership and use of 'ELDER' mark by EPL, (ii) four adverse orders
passed by Delhi High Court, (iii) relationship of directors of Plaintiff
and Defendant with each other and with EPL and (iv) proceedings
before Official Liquidator possess the potential to significantly
influence the decision-making process. If the above material was
disclosed, this Court would not have granted ex-parte ad-interim
injunction in favour of the Plaintiff and would have issued notice to
Defendant. In my view therefore, the ad-interim injunction granted
in favour of the Plaintiff deserves to be vacated under Order 39 Rule
4 of the Code.
20) In Elder Neutraciticals (supra) the Plaintiff therein made a similar
attempt, which Mr. Kamat has made before me, by contending that
suppression must be of material fact and that if the allegation of
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suppression is not with regard to a material fact, which does not possess
the potential to significantly influence the decision making process or
alter its trajectory, the Court cannot refuse to exercise discretionary
jurisdiction. Reliance is placed by Mr. Kamat on judgments of the Apex
Court in S.J.S. Business Enterprises (P) LTD. and Arunima Baruah (supra).
Both the judgments have been taken into consideration by this Court in
Elder Neutraciticals. In the present case, I have little doubt in my mind
that the material suppressed by the Plaintiffs in respect of (i) Indenture
dated 25 September 1959, (ii) factum of existence of buildings on the
demised land at the time of execution of sub-lease and ownership
thereof by the Defendant, (iii) filing and dismissal of R.A.E. & R. Suit
No.762 of 1992, have the potential of significantly influencing the
decision making process and altering its trajectory. Apart from
suppression, Plaintiffs have walked a step ahead and have knowingly and
consciously made false averments in the Plaint that the demised land
was vacant piece of land and Defendant's predecessor-in-title was
granted permission to put up a factory therein. This projections in the
Plaint by the Plaintiffs is false to the factual position about existence of
buildings on the demised land, which were purchased by Defendant's
predecessor in title for consideration of Rs.1,75,000/-on 25 September
1975. The Plaintiffs have created a false picture as if Defendant has
breached condition of lease by erecting a building thereon. Plaintiffs
have falsely suggested in the Plaint that initial permission in the year
1959 was only for erection of a factory, whereas the Defendant
constructed a RCC building comprising of ground plus mezzanine, first
and second floors. Unfortunately, this false story projected by the
Plaintiffs is accepted by the Appellate Bench by holding in paragraph 34
of the impugned order as under:-
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34. The Agreement further records that the defendants had
constructed an RCC building comprising ground, mezzanine, first
and second floors. If such construction was indeed carried out, it was
incumbent upon the defendants to demonstrate that it was with the
consent of the landlords. Their bare denial cannot override the
documentary evidence produced by the Plaintiffs.
21) It is sought to be suggested by Mr. Kamat during the course of his
submissions that the Defendant has expanded originally purchased
structure by adding /constructing fresh RCC building comprising of
mezzanine and two floors. However, this is not the pleaded case of the
Plaintiffs. They have not pleaded that some buildings already existed on
the demised land and that the Defendant illegally expanded the said
buildings by constructing any additional structure on the demised land.
Since there are no pleadings about construction of any 'additional
structure', there is no question of Plaintiff making any attempt to prove
the same. Without appreciating this position, and particularly the
position that the Defendant is the owner of the structure, the Appellate
Court has erroneously held that covenants of sub-lease are broken by the
Defendant by indulging in unauthorised construction and by
unauthorisedly parting with the possession. So far as the induction of
licensees and selling of the part of the structures are concerned, prima
facie Defendant is the owner of the buildings constructed on the demised
land vide Indenture dated 25 September 1959. In that view of the matter,
Defendant's conduct of selling, parting with possession or inducting
licensees in the structure may not prima facie constitute breach of
conditions of the sub-lease. As rightly held by the Trial Court, there is
nothing on record to indicate that Defendant has sold or assigned any
rights in the land.
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22) Apart from the aspect of suppression, Plaintiffs have otherwise
failed to make out prima facie case for grant of temporary injunction.
Defendant is the owner of the structure and prima facie there is nothing
in the two Indentures which prevent the Defendant from dealing with
the structure. Most of the transactions have taken place in the year 2005
or 2006 as pleaded by the Plaintiffs themselves and the Plaintiffs have
failed to move the Court with the necessary alacrity. No irreparable loss
is demonstrated as no right in the demised land is created by the
Defendant. The balance of convenience is also not in Plaintiffs' favour.
Thus apart from indulgence in gross suppression, Plaintiffs have
otherwise failed to satisfy the classic trinity test.
23) Considering the above position, I am of the view that the
Appellate Bench of the Small Causes Court has egregiously erred in
allowing the Appeal preferred by the Plaintiffs and in granting injunction
in favour of the Plaintiffs, who have indulged in gross suppression of
facts and documents and pleaded a blatantly false case. Impugned order
dated 11 September 2025 is thus unsustainable and is liable to be set
aside.
24) Petition accordingly succeeds, and I proceed to pass the following
order:
(i) Order dated 11 September 2025 passed by the Appellate
Bench of the Small Causes Court in Misc. Appeal No.31 of
2024 is set aside.
(ii) Misc. Appeal No.31 of 2024 is dismissed.
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25) Writ Petition is allowed and disposed of in above terms. There
shall be no orders as to costs.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab Page No.21 of 21
Designation: PA To Honourable Judge 13 March 2026
Date: 17/03/2026 15:16:01
