Swarn Singh vs Surinder Kumar & Ors.
2010 Latest Caselaw 5823 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI



+                         CS(OS) NO. 166/1997


                                           Date of Decision : 22.12.2010

Swarn Singh                                        ......    Plaintiff
                                Through:    Mr. Pramod Ahuja, Adv.



                                  Versus



Surinder Kumar & Ors.                              ...... Defendants
                                Through:    Ms. Jyoti Mehndiratta, Adv.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                      YES
2.     To be referred to the Reporter or not ?           YES
3.     Whether the judgment should be reported
       in the Digest ?                                   YES




V.K. SHALI, J.

IA No.3863/2009

1. This order shall dispose of IA bearing no. 3863/2009 under

Section 151 CPC for dismissal of the suit on the ground of

concealment of material facts which tantamounts to playing fraud

upon the Court.

2. Briefly stated the facts of the case are that the plaintiff had filed

the present suit for specific performance on the basis of the alleged

receipt-cum-agreement to sell dated 16.06.1993, 11.12.1993 and

11.01.1995. The case set up in the plaint was that by virtue of

the aforesaid receipts cum agreement to sell, the defendants had

agreed to sell their agricultural land in question to the plaintiff for

a total sale consideration of `29,25,000/- which was including the

cost of standing crop and improvement carried out on the farm.

The plaintiff had alleged that he had performed his part of

the contract by paying the entire sale consideration and he had

also received the possession. It was alleged that the defendants

were not perfecting the title of the plaintiff, and accordingly, he was

constrained to file the present suit for specific performance.

3. On 27.01.1997, the Court had issued summons in the suit to the

defendants/applicants and directed them to maintain the status

quo with regard to the possession of the suit property.

4. The defendants filed their written statement and contested the

claim of the plaintiff. It was alleged by the defendants that

receipt-cum-agreement to sell purported to be executed between

the defendants and the plaintiff was in pursuance to the receipt

cum agreement to sell dated 15.03.1993 for sale of the agricultural

land in question. Under this agreement, the transaction was

agreed @ Rs.35,00,000/- per acre and thus the total sale

consideration was Rs.1,89,94,791/- out of which he had received

only Rs.31.25 lacs. It was alleged that the original receipt-cum-

agreement to sell dated 15.03.1993 was in possession of the

plaintiff and the second carbon copy having the signatures of both

the parties was in possession of the defendants. The

defendants/applicants specifically pleaded that the plaintiff has

done interpolations in the receipt to show his possession. The

learned counsel for the defendants has also alleged that the

receipt-cum-agreement dated 16.06.1993 and 11.12.1993 relied

upon by the plaintiff were tampered with which are alleged to have

been executed pursuant to the agreement dated 15.03.1993. It

was the case of the defendants that the plaintiff was able to pay

only a sum of Rs.31.25 lakhs against a total sale consideration of

Rs.1,89,94,791/- and that the plaintiff was neither ready nor

willing to perform his part of the contract nor he had financial

capacity to do so and consequently the agreement dated

15.03.1993 was cancelled vide a registered letter dated

04.01.1994. It was also alleged that the receipt dated 11.01.1995

for Rs.17,00,000/- was issued specifically by the defendant no. 4

on the fresh offer of the plaintiff to purchase the subject land at a

revised rate of Rs.1 crore per acre as against Rs.35,00,000/- per

acre. It is alleged by the defendants that the plaintiff never

contacted the defendants and consequently the said offer of Rs. 1

crore per acre was also rejected and the same was communicated

to the defendants through registered letter dated 09.02.1995.

Later on, the plaintiff chose to file the present suit.

5. On 03.04.2000, that is after the expiry of almost three years from the date of filing of the suit the plaintiff in order to overcome the facts, as alleged by the defendants, instead of filing their replication filed an application under Order VI Rule 17 CPC bearing IA No. 3002/2000 seeking extensive amendment in the suit.

6. In the amendment application, the plaintiff admitted that

transactional value of the entire deal was approximately

Rs.1,90,00,000/- for which the land was sold to the plaintiff. It

was stated that a mistake regarding the quantum of actual

payment has been made in the plaint. It is stated that it was

agreed between the plaintiff and the defendants that 14 sale

deeds for Rs. 1.90 lakhs ( somewhere stated as 2 lakhs) each

were to be signed by the plaintiff and the defendants. The

plaintiff tried to give justification for not mentioning the

actual value of the transaction in the plaint by

saying that it was not done at the instance of the defendant

himself.

7. The defendants/applicants filed the reply to the IA bearing no.

3002/2000 and the learned Single Judge vide order dated

24.01.2008 allowed the amendment application of the plaintiff

subject to paying a cost of Rs.30,000/- to the defendants.

8. The defendants preferred a FAO (OS) No. 103/2008 against the

order dated 24.01.2008 passed by the learned Single Judge

allowing the amendment. The appeal was heard and disposed of

on 21.05.2008 by setting aside the order of the learned Single

Judge dated 24.01.2008 permitting the amendment to the plaint

in the suit. The learned Division Bench has passed a detailed

order indicating as to how the amendment to the plaint was not

maintainable.

9. Comments regarding the concealment of facts, withholding of

information and suppression of material facts by the plaintiff were

extensively made by the learned Division Bench short of saying

that the plaintiff has committed fraud on the Court.

10. The plaintiff feeling aggrieved by the order dated 21.05.2008 of the

Division Bench passed in FAO (OS) 103/2008, had preferred a

special leave appeal bearing SLP (C) of 20093/2008. The said

special leave petition was also dismissed on 25.08.2008 upholding

the finding of concealment of material facts by the Division Bench.

11. It is only after the disposal of the special leave petition that the

defendants have filed the present application on 21.03.2009

bearing no. 3863/2009 urging the Court to dismiss the suit of the

plaintiff as being barred by principle of suppression material facts.

In effect it has been stated that the plaintiff has played fraud on

the court by concealing the information regarding the actual

valuation of the transaction, and therefore, he is not entitled to

maintain the suit for specific performance because the very grant

of relief of specific performance is a discretionary relief.

12. The plaintiffs have filed the reply to the application by stating that

the application is not maintainable both on facts and on law. It

has been stated that the issues have already been framed on

19.11.2008 and whatever observations were passed by the Division

Bench, were taken note by the learned Single Judge while framing

of the issues, and accordingly, the suit must be put to trial.

13. The second objection which has been taken by the plaintiff in the

reply to the application is that there is a specific provision under

Order VII Rule 11 CPC for rejection of the plaint which has not

been invoked and the present application has been filed under

Section 151 CPC for dismissal of the suit, which is not

maintainable.

14. It has been stated by the learned counsel for the plaintiff in reply

that the present application for dismissal of the suit has been filed

by the defendants only on account of the fact that the application

of the plaintiff bearing no. 3210/2009 was dismissed in default on

06.03.2009 by virtue of which he had sought amendment in the

plaint to bring on record certain changes keeping in view the stand

taken by the defendants, and therefore, the application is not

maintainable.

15. So far as the merits of the allegations in the application are

concerned, it has been averred in the reply that the factum of the

transaction being for a sum of Rs. 1,89,94,791/- was not disclosed

at the instance of defendants themselves, and therefore, they

cannot be permitted to take advantage of their own wrongs and

misdeeds. It is stated that the defendants had signed 14 NOCs in

favour of the plaintiff and his son and he had applied for the

necessary sale permission. It is also alleged that the defendants

wanted to execute the sale deed only for a sum of Rs. 1.90 lakhs

(somewhere stated as 2 lakhs), each and not in excess amount as

otherwise it would entail permission to be obtained by the seller

from the Income Tax Authority. It is stated by the learned counsel

for the plaintiff that the defendants have wrongly averred that they

have received an amount of Rs.31.25 lakhs against the total sale

consideration of Rs.1,89,94,791/- while as actually they have

received Rs. 48.25 lakhs in all. It is alleged that the default of

perfecting title of the plaintiff was on the defendants, who had

already executed 14 agreements to sell in favour of the plaintiff. It

is denied that the agreement dated 15.03.1993 was cancelled. It

was denied that the receipt dated 11.01.1995 has been tampered

with by the plaintiff with the amount of Rs.17,00,000/- which is

alleged to have been issued to the defendants by way of fresh offer.

16. It is also denied that if the plaintiff had agreed to purchase the

land @Rs.35,00,000/- per acre how could it be alleged by the

defendants that the land was agreed to be purchased by the him

for Rs.1 crore per acre thus on the basis of these averments the

plaintiff has contested the application for the dismissal of the suit

filed by the defendants.

17. I have heard the learned counsel Mr. Pramod Ahuja on behalf of

the plaintiff and Mr. N. K. Kaul, the learned senior counsel for the

defendants. I have also considered the record.

18. The main thrust of Mr. Kaul, the learned senior counsel for the

defendants has contended that the grant of relief of specific

performance is a discretionary relief which is expected to be

exercised by the Court in favour of a party who comes to the Court

with clean hands. While as in the instant case admittedly the

plaintiff has not come to the Court with clean hands and therefore,

he is disentitled to maintain the suit itself. The learned senior

counsel has drawn the attention to the various passages in the

judgment of the Division Bench in FAO (OS) 103/2008, which are

as under:

"13. By no stretch of imagination in a suit for specific performance, can it be said that these amendments are of a minor nature. In fact, to this Court, it appears plainly that the plaintiff did not come to the Court with clean hands and was suppressing the complete facts. The explanation now furnished in the application is indeed preposterous. The plaintiff now states in the application under Order 6 Rule 17 CPC that "this fact is not denied that the total deal was agreed at Rs.1,89,94,791/- but as desired by the defendants it was not to be disclosed." Then in para 10, it is asserted that „the defendants have received the whole consideration amount but the plaintiff has got at his disposal receipts for only 1,22,75,000/- (Rupees one crore twenty two lacks and seventy five thousand only). Rest of the receipts were destroyed as per the asking of the defendants." Then in para 11 it is asserted that "Everything was done at the instance of the defendants to save permission under Section 34 A of the Income Tax Act."

14. The above statements in the application leave no manner of doubt that the plaintiff suppressed material facts before this Court. When the defendants pointed out in the written statement that the factual position was something else, the plaintiff turned turtle to justify his suppression of facts on the ground that he did it at the instance of the defendants. This is nothing but a plain abuse of the process of law."

19. It was urged by Mr. Kaul, learned counsel that the Supreme Court

in S.P.Chengalvaraya Naidu (dead) by LR's Vs. Jagannath (dead)

by LR's & Ors. JT 1993 (6) SC 331 case has categorically laid

down that a party who suppresses or conceals material facts, with

a view to obtain advantage over the opposite side in effect plays a

fraud on Court and makes it to pass any order, can be thrown out

from the Court at any stage of the proceeding. It is contended

that the judgment of the Apex Court with regard to the „throwing

away‟ the case of the defendants on account of having played the

fraud is the law of the land which is followed in subsequent

judgments also, and therefore, the plaintiff suit deserves to be

dismissed.

20. As against this Mr. Pramod Ahuja, the learned counsel for the

plaintiff contended that the application of the defendants under

Section 151 CPC is not maintainable for the dismissal of the suit

as there is a specific provision under Order VII Rule 11 CPC for

rejection of the paint. It is further stated that it is a settled

proposition that in case there is a specific provision under Code of

Civil Procedure for filing a particular application then recourse

must be had to said provision. It is urged that the same relief

cannot be granted by invoking Section 151 CPC.

21. The second submission which was advanced by Mr. Ahuja is to the

effect that the Order VII Rule 11 CPC results in rejection of the

plaint while as what is being prayed by the defendant is the

dismissal of the suit and not rejection. It is contended that the

dismissal of the suit could be only after the conclusion of the trial

where the parties have been permitted to adduce evidence and not

abruptly without recording of evidence, despite the issues having

been framed. It is, therefore, stated that since the issues in the

matter have already been framed, the Hon‟ble court may permit the

parties rather than trying to cut-short the life of the suit itself.

22. I have considered the respective submission and perused the

record.

23. The learned counsel for the plaintiff has taken the plea that the

total land which was agreed to be purchased by them from the

defendants was 26 bighas 1 biswas i.e. 5 ½ acres in village

Malikpur Kohi alias Rangpuri, Tehsil Mehrauli for a total

consideration of `29,25,000/- which amount was paid in full to the

defendant vide Agreement to Sell dated 16th March, 1993. Now

after filing of the written statement when the defendant took a

specific plea that the total transactional value of the deal was not

`29,25,000/- as alleged, but it was `1,89,94,791/- then the

plaintiff changed his stand by admitting that this was total

transactional value and accordingly, sought an amendment. It is

this amendment which was disallowed by the Division Bench by

observing that if this amendment is permitted then the very basic

nature of the case of the plaintiff or the frame of the suit will be

changed which cannot be permitted to be done. The Division

Bench has rightly commented on the unethical and unscrupulous

conduct of the plaintiff by using the terms that he has „concealed

material facts and documents‟ and „misused the processes of law‟.

The plaintiff had filed a Special Leave Petition which was also

dismissed therefore, observations passed by Division Bench have

become final and this Court finds no reason or occasion to hold a

different view. The plaintiff in the application or thereafter, while

addressing arguments may give different justifications like the

defendant only had told him not to disclose the actual

transactional value or that he himself had applied for NOC under

different documents where the total value of the property was

shown as `28 lacs or that even this enhanced consideration of

`1.90 crores approximately stood paid, is of no consequence today

because these become only an afterthought. The issue is that the

grant of specific relief is discretionary relief and in order to get this

discretion, the plaintiff must show that his conduct has been fair,

reasonable and above board. Normally in legal language it is

called that the plaintiff must come to Court with clean hands. It is

in this context that the judgment of Naidu's case becomes

important for deciding the present case. In the said case, the Apex

Court has held, if a party withholds a document, from the Court

and the opposite party, he plays fraud not only on the opposite

side but also on Court and if this is detected then irrespective of

the stage of the case, such a case must be thrown out. The said

judgment squarely fits into the facts of the present case.

24. The judgments which have been relied upon by the plaintiff are:

Durgesh Sharma s. Jay Shree AIR 2009 Supreme Court 285, State of

U.P. & Ors. vs. Roshan Singh AIR 2008 Supreme Court 1190, Mayar

(H.K.) Ltd. & Anrs. Vs. Owners & Parties, vessels M.V. Fortune

Express & Ors. AIR 2006 Supreme Court 1828, State of West Bengal &

Anr. vs. Karan Singh Binayak & Others AIR 2002 Supreme Court

1543, Vimal Chand Ghevar Chand Jain another vs. Ramakant

Eknath Jadu 2009(5) Supreme Court Cases 713, Mangat Ram & Ors.

vs. Ram Niwas & another 163 (2009) DLT 199, Ramesh B. Desai &

Ors. vs. Bipin Vadilal Mellu AIR 2006 Supreme Court 3672, Pratima

Sinha and Others vs. Shashi Kumar Narain Sinha & Ors. (2004) 13

Supreme Court Cases 599, Management of the Goodwell Girls High

School & Ors. vs. J. Marry Susheela (Smt.) & Others (2003) 9

Supreme Court Cases 106, M.C.D. vs. Parveen Kapoor 2001 VI AD

(Delhi) 717 and Vakil Chand Jain vs. Prakash Chand 2009 VIII AD

(Delhi) 155.

25. I have gone through the judgments cited by the learned counsel for

the plaintiff.

26. Before dealing with the submissions of the plaintiff it should be

made clear that the very grant of decree for specific performance is

a discretionary relief by the Court and one of the fundamental

principles of exercise of said discretion in favour of a party is that

he must come to the Court with clean hands. The reference in this

regard is made to a case title Mohammadia Cooperative Building

Society Ltd. vs. Lakshmi Srinivasan Cooperative Building

Society Ltd. & Ors. (2008) 7 SCC 310 (para 71), wherein it was

observed:

"Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands."

27. Similar sentiments of keeping the fountain of justice unpolluted

from the unscrupulous litigants has been also echoed by the

Supreme Court in a recent judgment in case title Dalip Singh vs.

State of Uttar Pradesh and Others (2010) 2 SCC 114 where the

two basic values of the life one of which is the „Satya‟ (The Truth)

as the very basis of the adjudication by the courts has been

highlighted. The following is the passage of the judgment:-

"2. For many centuries Indian society cherished two basic values of life i.e. "satya‟ (truth) and „ahimsa‟ (non- violence). Mahavir, Gautam Buddha and Mahatama Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-

delivery system which was in vogue in the pre-

independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, the post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."

28. In view of the observations passed by the Division Bench, I feel

that the plaintiff in the instant case is of a new creed of litigant

who has shamelessly resorted to falsehood, and therefore, not

entitled to this discretionary relief.

29. I do not agree with the contentions of the learned counsel for the

plaintiff that for moving an application under Section 151 for

dismissal of the suit there has to be a particular stage or merely

because issues have been framed, therefore the case must be

necessarily be put to trial if that is the interpretation to be given to

the Section 151 of the Code of Civil Procedure it will not only limit

but also prohibit the Court in passing effective orders, scuttling the

efforts of unscrupulous litigant in dragging the defendant to face a

tortuous trial which ultimately must fail on the ground that the

case of the plaintiff is not based on truth or the "satya". The

Supreme Court in case titled Abdul Gafur & Anr. Vs. State of

Uttarakhand & Ors. (2008) 10 SCC 97 has laid down that the

application under Order 7 Rule 11 for rejection of the plaint can be

filed at any stage and even in a case where parties have adduced

evidence, if the Court feels that the plaint is liable to be rejected on

any of the grounds mentioned under the said section, it can do so.

The purpose of this interpretation is only to highlight that the

Court should not be found to be powerless in cutting short the

journey of a trial by rejecting the plaint in a given case if the Court

feels so. On the basis of same analogy Section 151 can be used by

the Court at any stage of the trial, as it is repository of inherent

powers of the Court to pass such orders in the interest of justice as

the situation may warrant in a given case including the trial of the

case.

30. This view is also finding support from the judgment of the

Supreme Court in Naidu's case (supra) wherein it has been held

that if it is proved that a litigant has obtained a decree by

withholding vital documents in order to gain advantage on the

other side he would be guilty of playing the fraud on the Court as

well as on the opposite party and such a person whose case is

based on falsehood can be summarily thrown „at any stage‟ of the

litigation. „At any stage" of the litigation is a very pertinent word

used in the said judgment which does not restrict itself to the stage

of pre-recording of the evidence or pre-framing of the issues

meaning thereby at any stage, whenever the Court detects or it is

brought to its notice by any of the party that the opposite party

has tried to score a point by withholding the vital documents or

material facts such a party is stated to have played fraud and can

be ousted from the Court summarily.

31. Therefore in the light of the aforesaid discussion, I am of the

considered opinion that the argument put forth by the learned

counsel for the plaintiff regarding the invocation of Section 151

CPC or the stage of invocation for the said provision after a lapse of

four months from the date of framing of the issues is totally

immaterial for deciding as to whether the suit of the plaintiff

deserves to be dismissed summarily on account of withholding of

vital documents and material facts from the Court.

32. The above-mentioned paragraphs, I have already opined that the

exercise of power under Section 151 CPC could not be limited to a

particular stage. Even in case titled Durgesh Sharma Vs. Jay

Shree AIR 2009 SC 285 cited by the learned counsel for the

plaintiff, it has been observed by the Apex Court and inherent

powers will be exercised ex-debito justifiae, when there is no

express provision in the Code. No doubt, the law is that the said

power under Section 151 CPC cannot be exercised in contravention

or in conflict of or ignoring the express and specific provision of law

but by dismissal of the suit on the ground of fraud as envisaged in

Naidu's case (supra) does not result in any violation of Section 151

CPC for summary dismissal of suit be said in violation or in

contravention of any specific provision. As a matter of fact, the

learned counsel for the plaintiff has not pointed, which specific

provision of the Act is being contravened by entertaining an

application of the defendant under Section 151 CPC. Therefore,

judgments of State of U.P & Ors. Vs. Roshan Singh (D) by LR's

(AIR 2008 SC 1190) and State of West Bengal & Another Vs.

Karan Singh Binayak & Other AIR 2002 SC 1543 dealing with

the Section 151 CPC do not help the plaintiff in any manner

whatsoever.

33. The plaintiff has also relied upon the case titled Mayar (H.K) Ltd.

& Anr. Vs. Owners & Parties, vessels M.V Fortune Express &

Ors. AIR 2006 SC 1828 to contend that while rejecting the plaint

only the averments made in the plaint have to be seen and not the

averments made in the written statement. There can be no dispute

about the said proposition. But in the instant case what is being

prayed by the defendant and considered by the court is not the

rejection of the plaint but the dismissal of the suit itself, therefore,

there is a difference between the rejection of the plaint and the

dismissal of the suit. Since the latter is being considered,

therefore, the judgment relied upon in Mayar (H.K) Ltd.„s case

(supra) is not applicable. Assuming though not admitting that it

is a dismissal in the nature of rejection of the plaint even then I

feel it is not open to the plaintiff to contend that what is being

considered by the Court is the allegations made in the written

statement.

34. The case which had been set up by the plaintiff was that he had

entered into an agreement to purchase 5 ½ acres of land belonging

to the defendant for a total sale consideration of `29,25,000/-

which was actually paid to him and possession was handed over to

the plaintiff almost 17 years earlier. The defendant in his written

statement took the plea that the averments made in the plaint are

false as actually the agreement to sell was entered into with the

plaintiff for the sale of the land at `1.90 crores approximately and

the plaintiff had made a part payment only. It has been further

stated by the defendant in the written statement that the entire

sale consideration was not paid to him. It is on account of

disclosure of this fact by the defendant that the plaintiff took a

somersault and sought amendment of his plaint admitting that

sale value of the property was `1.90 crores and further took a plea

that even this amount was paid in full, and therefore, he wanted to

amend the plaint.

35. The amendment in fact was allowed by the learned Single Judge

subject to payment of cost of `30,000/- which was set aside by the

Division Bench by observing that the plaintiff had withheld the

material facts, documents and „abused the processes of law‟, by

withholding the vital information and if the amendment was

permitted it would change the very nature of the suit. The order

of the learned Single Judge was set aside. The order of the

Division Bench in FAO(OS) No.103/2008 was upheld by the

Supreme Court also, and therefore, not only the judgment of the

Division Bench but the observations given therein attained finality.

In the light of this background it can no more be said that these

are the allegations made by the defendant in the written statement.

In fact, these are the averments which are admitted by the plaintiff

that he had entered into an agreement to purchase the suit

property for a sum of `1.90 crores approximately but he had set up

altogether a different case. The plaintiff wanted to amend the

plaint and make averments in this regard which were pointed out

by the defendant. In my view despite the fact that the amendment

by the plaintiff was not allowed, it cannot be said that the plaint is

being rejected on the merits of defendant. Accordingly, the

judgment of Mayar (H.K.) Ltd.'s case is not applicable to the facts of

the case.

36. The next string of authorities which have been relied upon by the

plaintiff refer to Order XIV Rule 2 CPC for framing of issues. The

main contention of the learned counsel for the plaintiff has been

that since issues have already been framed, therefore, the plaintiff

be permitted to adduce evidence and only after that the case may

be disposed of on merits. Conversely, the judgments which have

been cited by the learned counsel for the plaintiff are also holding

the determination of issues without any pleadings thereon or the

framing of issues ought not be to be done. I do not feel the

necessity of dwelling on these authorities in detail, which are as

under. Vimal Chand Ghevar Chand Jain Anr. Vs. Ramakant

Eknath Jadu 2009(5) SCC 713 OR 2009 (5) SCALE 59, Mangat

Ram & Ors. Vs. Ram Niwas & Anr. 163 (2009) DLT 199, Ramesh

B.Desai & Ors. Vs. Bipin Vadilal Mellu AIR 2006 SC 3672,

Pratima Sinha & Ors. Vs. Shashi Kumar Narain Sinha & Ors.

(2004) 13 SCC 599 and Management of the Goodwell Girls High

School & Ors. Vs. J.Mary Susheela (Smt. & Ors. (2003) 9 SCC

106.

37. No doubt, the issues in the instant case have already been framed,

but the question which is to be considered is whether the admitted

equitable relief of specific performance being claimed by the party

who has been stated to be concealing the facts by the Division

Bench by using strong terms like „withholding of material facts‟,

„playing fraud‟ with the Court, „abusing the processes of law,

should be permitted to continue with the futile trial, especially in

order to get the relief which is admittedly an equitable relief to be

granted to only that person who has come to the Court with clean

hands.

38. I have already observed hereinabove that this Court has absolutely

no reason to hold a different view on the basis of the facts than the

one which has been held by the Division Bench. I would go a step

further to say that the plaintiff is an unscrupulous and dishonest

person who has tried to give only selective information in this case

and thereby mislead the Court in terms of Chengalvaraya Naidu's

case (supra), which have been upheld in the subsequent judgment

of MCD Vs. State of Delhi and Another 2005 SCC 605, make the

Court unwilling to exercise the discretion in favour of the plaintiff

for grant of that specific performance. If that be so there is

absolutely no justification for continuing with the futile trial and

then after five years down the line say that the plaintiff is not

entitled to a discretionary relief. Thirteen years have already gone

by which has resulted in colossal waste of judicial time.

CONCLUSION

39. In the light of the aforesaid observation, let us examine the facts of

the case as to whether the suit of the plaintiff deserves to be

dismissed on such a ground or not. The area of question

purported to be purchased by the plaintiff from the defendant is

not in dispute which is 5 ½ acre measuring 26 bighas and 1

biswas. What is in issue is that the plaintiff having purchased or

agreed to purchase the aforesaid portion of land way back in 1993

invoked the jurisdiction of Court by filing the suit in 1997 alleging

that the defendant was not perfecting his title and therefore sought

the relief of specific performance. The case which was set up by

the plaintiff was that the total transactional value at which the sale

deeds were to be executed was `29,25,000/- and the defendant

himself had obtained the permission from the competent authority

for executing 14 sale deeds in favour of the plaintiff @ Rs. 1.90

lakhs (somewhere stated as 2 lakhs) per transaction for a total

amount of `28 lakhs while as the actual sale consideration was

`1,89,94,791/-. The plaintiff has not only concealed the material

facts and the document dated 15.3.93 but has also tried to give

false justification for such concealment. The plaintiff ought to

have remembered, it was not the defendant but the plaintiff who

had come to Court claiming equitable relief so it was his bounded

duty to tell the truth. This does not mean that the Court is

approving that the defendant need not tell the truth. These facts

weigh very heavily against the plaintiff. It is contended by the

learned counsel for the plaintiff that the aforesaid amount was not

disclosed by the plaintiff as was reflected in the sale deed dated

15th March, 1993 at the instance of the defendant himself and

secondly a plaint cannot be dismissed or rejected on the basis of

the averments made by the defendant in the written statement.

40. It is correct that while considering the rejection of a plaint the

averments made in the written statement cannot be seen but that

principle may not be applicable in the case of a summary

dismissal of a suit by invoking Section 151 in a given case by a

party where it is able to show that the plaintiff has played

fraud in terms of withholding of documents or material

information with a view to score a point not only on the

opposite side but has also mislead the Court. Moreover in

the instant case it cannot be said that the factum of the

transactional value being Rs. 1 crore 89 lakhs has been taken

from the written statement of the defendant. As a matter of fact,

the defendant has specifically taken a plea in the written

statement that the transactional value was `1,89,94,791/- or so

and the entire sale consideration has not been received. It is

upon this disclosure the plaintiff filed the application seeking

amendment of the plaint admitting to be correct what the

defendant was saying. It has been further observed by the Division

Bench in FAO No.103/2008 that the plaintiff has paid the full

amount of money but he has not been able to account for the full

payment in the absence of the receipts, though the amendments

by the plaintiff was ultimately disallowed but it clearly showed that

the plaintiff had concealed material facts with a view to score a

point over the opposite side and thus played fraud. In my view,

the plaintiff has indulged in unscrupulous conduct which cannot

be condoned. His conduct has been commented upon by the

Division Bench also, which in the ultimate end make the Court to

draw an irresistible conclusion that this is not a fit case where the

discretion ought to be exercised in favour of the plaintiff, be that

at interim stage or the final stage. This is only to keep the stream

of justice unpolluted from unscrupulous, dishonest litigant.

41. As the grant of specific relief being a discretionary relief, I am not

inclined to exercise the said discretion in favour of the plaintiff in a

view of the aforesaid circumstances however hard he may try to

justify his conduct by filing applications or submissions, I

accordingly, dismiss the suit of the plaintiff on the ground that he

has played fraud in terms of the judgments in Chengalvaraya

Naidu's case. All other pending application are also dismissed.

V.K. SHALI, J.

December 22, 2010 KP/nk