Delhi District Court
Mukesh Kumar Gupta vs . Rajneesh Gupta on 13 January, 2016
Mukesh Kumar Gupta Vs. Rajneesh Gupta
CS No. 74/2015
13.01.2016
Present: Plaintiff in person with Sh. J.K. Jain Advocate.
Defendant no.1 Rajneesh Gupta in person.
The plaintiff has filed an application under Order 7 Rule 14
CPC read with Section 151 CPC seeking permission to place on record the
original Agreement to Sell. I may observe that photocopy of the said
Agreement to Sell dated 28.11.2014 is already on record and hence the
original Agreement to Sell is also taken on record.
Another application under Order 8 Rule 10 CPC read with
Section 151 CPC has been filed on behalf of the plaintiff on the ground that
since the defendants have failed to file their written statements within the
stipulated period, a decree under Order 8 Rule 10 CPC may be passed.
The defendant no.1 who is present in person submits that the
defendants no.2 and 3 are his real sisters and he is also representing them
having authority to do so. He further submits that he is not opposing the
claims of the plaintiff is conceding to his case and is ready to execute the
sale deed provided that the remaining payment as per the Agreement to Sell
is deposited in their bank accounts. The statement of the parties are
recorded in this regard.
I may observe that during the course of recording the statement
of the parties, Ld. Counsel for the plaintiff Sh. J.K. Jain has shown some
Page No. 1 of 22
urgency in the matter on the issue relating the registration of the sale deed
before the Sub Registrar and has requested the court to ensure that when the
final Judgment & Decree is passed on the basis of the statements made by
the plaintiff and the defendant no.1, the time schedule with regard to the
registration of Sale Deed may also be fixed and specified to avoid
complications in future. He has also submitted the plaintiff is ready to make
the payment of the remaining agreed amount by cheque and is also ready to
transfer the same in the individual accounts of the defendants no.1 to 3 in
equal proportion i.e. 1/3rd share each. The defendant no.1 has informed the
Court that the plaintiff already has the details of his account and submits
that in so far as the details of the accounts of the defendants no.2 and 3 are
concerned, the same shall be provided in the post lunch session during the
day.
I have considered the requests made before me. Though the
statements of the parties have been formally recorded and typed, yet in view
of the fact that the details of the accounts of the defendants 2 and 3 have not
been submitted to the plaintiff, the case is kept pending for 2:30 PM to
enable the defendant no.1 to first provide the details of the bank accounts to
the plaintiff only after which the parties shall sign their respective
statements.
Be awaited.
(Dr. Kamini Lau)
ADJII(Central)/ 13.01.2016
Page No. 2 of 22
2:30 PM
Present: Plaintiff in person with Sh. J.K. Jain Advocate.
Defendant no.1 Rajneesh Gupta in person.
At this stage, I am informed by the Reader that another suit
between the same parties under the title 'Mukesh Kumar Gupta Vs.
Rajneesh Gupta, Smt. Nirmala Bansal and Smt. Madhu Loyalka' has
been assigned to this Court bearing CS No. 12/2016 which case was put up
before me at 2:00 PM and was directed to be taken up at 2:30 PM. The said
suit bearing CS No. 12/2016 which is for Specific Performance of
Agreement to Sell dated 28.11.2014 in respect of Mezzanine Floor of
property No. 459C, Main Bazar, Khari Baoli, Delhi - 110006 is also being
taken up along with the present case.
After going through the pleadings, I note that the suit bearing
CS No. 12/2016 has been filed on pleadings which are identical to the
present suit bearing No. 74/2015 except that it relates to Specific
Performance of Agreement to Sell dated 28.11.2014 in respect of Mezzanine
Floor of property No. 459C, Ground Floor, Main Bazar, Khari Baoli,
Delhi - 110006. I also note that both the cases involve same parties and
property and also relate the same agreement to sell of the same date and the
counsel who is representing the plaintiff is also the same.
I further note that that when suit No. 74/2015 was taken up in
the morning, Sh. J.K. Jain Advocate despite being aware that he had filed
Page No. 3 of 22
another suit (i.e. CS No. 12/2016) in respect of the same property on
12.01.2016 which had been assigned to this Court by the Ld. District Judge
(HQ), did not make a whisper of this fact, while he was desperately trying to
push this Court into passing a decree in the present suit on the ground of
failure of the defendants to file the Written Statement and on the basis of a
consensual statement of the defendant no.1.
At this stage, an application under Order 1 Rule 8A and 10
read with Section 151 CPC has been filed seeking impleadment of
applicant Vinay Gupta S/o Late Ghanshyam Dass Gupta. Sh. Manu Shisodia
Advocate is appearing from the applicant and has alleged that the present
suit has been filed by the parties in collusion with each other and by
concealing and withholding material facts from this Court relating to the
other litigation in respect of the same property pending before the Delhi
High Court wherein one Ghanshyam Dass i.e. father of the applicant Vinay
Gupta had filed a suit for Partition bearing CS (OS) No. 2365/1986 and in
the said suit interim orders have been passed by the Hon'ble Delhi High
Court on 28.11.1995 by way of which the parties have been specifically
restrained from dealing with the properties, subject matter of the suit,
or part with possession of any of the properties till the disposal. He has
informed this Court that the said suit was dismissed in default on 13.11.2014
immediately after which an application for restoration of the suit was filed
on 18.11.2014 which was listed on 24.11.2014 and the suit was finally
Page No. 4 of 22
restored on 19.05.2015 but during this period vide order dated 08.12.2014
the Delhi High Court has been pleased to hold that the order of injunction
dated 28.11.1995 shall remain in operation. Ld. Counsel for the applicant has
submitted that there has been a deliberate concealment of this material
fact and the parties in collusion with each other in order to secure an
order behind the back of the applicant in gross violation of the
directions of the Delhi High Court, were hurriedly trying to push this
Court into passing a decree which would have been contrary to the
specific directions of the Delhi High Court in pending suit of which the
parties are aware. He has placed on record the various orders of the Delhi
High Court in this regard.
I have duly perused the documents placed before me and also
the directions issued by the Delhi High Court in pending litigation between
the parties relating to the same property. The disclosure now made by the
applicant has shocked me and explains the urgency which the parties were
trying to secure a consent decree from this Court by concealing the facts
relating to the restoration of the suit and all interim orders in the suit
pending before Delhi High Court in respect of the same property. The
conduct of the parties raises two important issues. Firstly as to whether
there has been a concealment or suppression of material facts and the
effect thereof and Secondly as to whether the suits filed by the plaintiff
i.e. CS No. 74/2015 & CS No. 12/2016 would be maintainable or not.
Page No. 5 of 22
The Hon'ble Apex Court has time and again stressed upon the
obligation of the litigants to approach the court with clean hands and has
come down heavily upon those who have tried to abuse the Judicial Process
by suppressing material facts with a design to seek advantage or even as a
technique for advocacy and have held such parties and litigants nonsuited to
any relief. While dealing with this aspect of Concealment in the case of
K.D. Sharma Vs. Steel Authority of India Ltd. & Ors. in Civil Appeal No.
4270 of 2008 arising out of Special Leave Petition (Civil) No. 17005 of
2006 decided on dated 09.07.2008 the Hon'ble Apex Court had observed
that:
"....... It is, therefore, of utmost necessity that the
petitioner approaching the Writ Court must come with
clean hands, put forward all the facts before the Court
without concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of
relevant and material facts or the petitioner is guilty of
misleading the Court, his petition may be dismissed at
the threshold without considering the merits of the
claim.
The underlying object has been succinctly stated by
Scrutton, L.J., in the leading case of R. v. Kensington
Income Tax Commissioners, (1917) 1 KB 486 : 86 LJ KB
257 : 116 LT 136 in the following words:
"[I]t 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 it says facts, not law.
Page No. 6 of 22
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)
Under similar circumstances, a Three Judges Bench of the
Hon'ble Supreme Court in the case of Hari Narain v. Badri Das, reported in
1964 (2) SCR 203 revoked the special leave granted to the appellant and
dismissed the appeal for making inaccurate, untrue and misleading
statement in SLP observing that:
".....It is of utmost importance that in making material
statements and setting forth grounds in applications for
special leave, care must be taken not to make any
statements which are inaccurate, untrue or misleading.
In dealing with application for special leave, the Court
naturally takes statements of fact and grounds of fact
contained in the petitions at their face value and it would
be unfair to betray the confidence of the Court by making
statements which are untrue and misleading. That is why
we have come to the conclusion that in the present case,
special leave granted to the appellant ought to be
revoked. Accordingly, special leave is revoked and the
appeal is dismissed. The appellant will pay the costs of
the respondent....."
Again in Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody, reported in 1964 (3) SCR 480, the Hon'ble Supreme Page No. 7 of 22 Court has observed that:
"....... exercise of the jurisdiction of the Court under Article 136 of the Constitution is discretionary; it is exercised sparingly and in exceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice. A party who approaches this Court invoking the exercise of this overriding discretion of the Court must come with clean hands. If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal......."
In the same judgment, Hon'ble Mr. Justice Hidayatullah, added that:
"....... I have considered the matter carefully. This is not a case of a mere error in the narration of facts or of a bona fide error of judgment which in certain circumstances may be considered to be venial faults. This is a case of being disingenuous with the Court by making out a point of law on a suppositious state of facts, which facts, if told candidly, leave no room for the discussion of law. The appellant has by dissembling in this Court induced it to grant special leave in a case which did not merit it. I agree, therefore, that this leave should be recalled and the appellant, made to pay the costs of this appeal......"Page No. 8 of 22
Again, a Three Judges Bench of Hon'ble Supreme Court in the case of Udai Chand v. Shanker Lal and Ors., reported in 1978 2 SCR 809 revoked the special leave and dismissed it after referring to the decisions in Hari Narain and Rajabhai Abdul Rehman Munshi (supra). It was further observed that this Court cannot permit abuses of the process of law and of law courts.
In the case of Vijay Syal and Anr vs State Of Punjab And Ors. in Appeal (Civil) No. 812 of 2002 decided on 22.05.2003 the bench comprising of Hon'ble Mr. Justice Shivaraj V. Patil and Hon'ble Mr. Justice Arijit Pasayat observed as under:
"...... In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity Page No. 9 of 22 and grace in the administration of justice......."
In the case of Kishore Samrite Vs. State of U.P. & Ors. in Criminal Appeal No. 1406 of 2012 decided on 18.10.2012 the Bench comprising of Hon'ble Mr. Justice B.S. Chauhan and Hon'ble Mr. Justice Swatanter Kumar observed as under:
"......... 29. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
(ii) The people, who approach the Court for relief on an Page No. 10 of 22 ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have overshadowed the old ethos of litigative values for small gains.
(v) 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.
(vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
(vii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis welljustifies it. [Refer : Dalip Singh v. State of U.P. & Page No. 11 of 22 Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
30. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R. Sadhanantham v.
Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:
"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human right' of a system which purports to guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."
Page No. 12 of 22
31. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
32. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.
33. The party not approaching the Court with clean hands would be liable to be nonsuited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot Page No. 13 of 22 claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer : Tilokchand H.B. Motichand & Ors. v. Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v.
Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1 421]; Abhyudya Sanstha v. Union of India & Ors.
[(2011) 6 SCC 145]; State of Madhya Pradesh v.
Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639];
Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC
287)].
34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equifundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and Page No. 14 of 22 approach the court with clean hands.
35. No litigant can play 'hide and seek' with the courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. {K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481].
36. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) v. K. Parasaran, (1996) 5 SCC 530).
37. In light of these settled principles, if we examine the facts of the present case, next friends in both the petitions are guilty of suppressing material facts, approaching the court with unclean hands, filing petitions with ulterior motive and finally for abusing the process of the court....."
Applying the settled principles of law to the facts of the present case I may at the very Outset observe that as per the facts which have now been placed before me by the applicant which have not been denied by the Page No. 15 of 22 plaintiff or the defendant no.1, one Ghanshyam Dass Gupta the predecessor in interest of the applicant Vinay Kumar Gupta had filed a Partition Suit bearing CS (OS) No. 2365/1986 under the title 'Ghanshyam Dass Gupta Vs. Rajnish Gupta & Ors.' before the Delhi High Court in the year 1986, which was against the various defendants (including the defendants/ predecessor in interest of the defendants before this Court) which suit was in respect of the various properties including the suit property in question i.e. 459C, Main Bazar, Khari Baoli, Delhi - 110006. It is also reflected from the proceedings of the High Court suit now placed before me, that in the said suit interim orders were passed by the Delhi High Court on 15.05.1990 which order was thereafter confirmed vide order dated 28.11.1995 whereby the parties were prohibited from dealing with the properties (including the suit property) or parting with possession of the same.
Secondly it is also admitted that the above suit pending in the Delhi High Court was dismissed in default on 13.11.2014 (a fact of which even the plaintiff was aware as evident from the Agreement to Sell upon which the plaintiff has filed the present suit) and an application for restoration was filed on 18.11.2014 which was listed on 24.11.2014. However, hurriedly during this period the mother of the defendants entered into an agreement with the plaintiff on 28.11.2014 which fact was in full knowledge of the defendants. In the meantime, pursuant to the notice issued Page No. 16 of 22 on the application for restoration, the defendant no.1 Rajneesh Gupta had also appeared before the Delhi High Court and vide order dated 08.12.2014 the Hon'ble Delhi High Court directed that the injunction order dated 28.11.1995 shall remain in operation. Therefore by virtue of the restoration of the interim orders on 19.05.2015 no further steps in respect of the suit property could have been taken and by concealing these orders and proceedings the plaintiff and the defendants in the present suit were trying to push this Court into doing something which was impermissible and would have tantamount to violation of the interim orders of the Delhi High Court in the suit pending before it. All these aspects were in the knowledge of the defendants particularly the defendant no.1 Rajneesh Gupta who has been regularly appearing before the Delhi High Court but despite the same neither the plaintiff (who was aware of the Delhi High Court petition as reflected from the documents of sale) nor the defendant no.1 made a whisper of the said suit pending in the Delhi High Court wherein the Hon'ble High Court has prohibited the parties to deal with the properties subject matter of the suit or part with possession of any of the properties till the disposal of the suit before it.
Thirdly during the course of arguments on the application under Order I Rule 8 (A) and 10 CPC, I am also informed that another Civil Suit in respect of the same property had been filed and is pending before the court of Sh. Raj Kumar, Ld. ADJ, Delhi details of which have again been withheld by the parties.
Page No. 17 of 22
Lastly in so far as the conduct of the counsel for the plaintiff is concerned, I am compelled to note that the same is highly questionable. Today, when the suit came up for hearing today, Sh. J.K. Jain Advocate for the plaintiff Mukesh Kumar Gupta despite being aware that he had filed another Civil Suit against the same parties on 12.01.2016 in respect of the Mezzanine Floor of the property in question, again concealed this fact from the Court and hurriedly tried to push this Court into passing a Decree in their favour on the ground of the defendants were not opposing their claim and it was in this background that the statements were recorded in the morning. Had it not for this Court not permitting the parties to sign their statements till such time the details were obtained, that the plaintiff and the defendant no.1 would have succeeded in their illmotives and pushed this Court into passing an order/ judgment which would have been in complete violation of the interim orders passed by the Delhi High Court in CS (OS) No. 2365/1986. Incidentally the suit bearing CS No.12/2016 filed on 12.01.2016, was marked to this Court and this Court got suspicious as to why the parties particularly the plaintiff did not inform this Court in the morning session when their statements were being recorded that another suit had also been filed where even the counsel was the same, after which the counsel Sh. J.K. Jain was questioned on the said aspect. The response of Sh. J.K. Jain Advocate for the plaintiff again was unconvincing and he simply remarked that "...it must have slipped my mind...." which under the given circumstances seems impossible. When the counsel himself is prodding the Page No. 18 of 22 Court to do something which would be in grossviolation of the interim directions passed by the Delhi High Court in the suit pending before it and he himself has filed another suit in respect of the same property just a few hours back, it is impossible that he would have forgotten to mention the same.
This being the background, I hereby conclude that on the face of it, the litigation is collusive and deliberately initiated behind the back of the applicant Vinay Gupta a coowner in the property. The plaintiff as well as the defendants in collusion with each other have tried to obtain an order by design firstly by filing two separate suits wherein no mention has been made about the pending litigation in the Delhi High Court and the interim directions issued by the Hon'ble High Court in respect of the suit property duly restraining the parties from dealing with the property and parting with the possession. The defendant no.1 who is personally appearing before this Court not only on his own behalf but also on behalf of the defendants no. 2 and 3, deliberately did not file any written statement but orally conceding to the case of the plaintiff as evident from his statement that he made in the morning which this court did not permit him to sign unless the complete details were available. He also concealed the fact that another litigation in respect of the first and second floor of the same property which is being put to commercial use, had been filed which is pending before the court of Sh. Raj Kumar, Ld. ADJ, Delhi information of which has now been given to me by the Ld. Counsel for the applicant. I may further note that the entire Page No. 19 of 22 property is comprising of ground floor, mezzanine floor, first floor and second floor, which the parties are admitting before me, is a commercial property and is being used for purposes of trade and commerce and the relief in respect of each floor has been deliberately split so as to create a jurisdiction in this Court which jurisdiction would not be there had it been consolidated, the Specified Value of the property in terms of provisions of Section 12 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 would have been more than Rs. One Crore as per the existing circle rates. This would have taken away the jurisdiction of this Court to try the said disputes which by virtue of the above Act would lie with the Commercial Division and this explains why separate suits are being filed in respect of each floor.
Sh. J.K. Jain Ld. Counsel for the plaintiff has vehemently argued that he forgot to inform the court about the filing of another suit which was incidentally marked to this court today itself and is now listed as CS No. 12/2016 and is being taken up together which cannot be taken as concealment. He further submits that there has been no concealment because the suit in Delhi High Court had been dismissed and till date the interim orders have not been revived. In this regard I may note that even if there was no revival the details of the ligation should have been placed before this Court. Even otherwise, his argument is factually incorrect because the perusal of the order dated 08.12.2014 shows that the Delhi High Court directed that the injunction order dated 28.11.1995 shall remain in Page No. 20 of 22 operation confirming the restoration and revival of the interim orders though the suit was restored on 19.05.2015. Even otherwise, even if assuming that there was no order of restoration as is being claimed by the parties, the principles of lispendense would apply and even if there are no specific orders at the time of restoration, all interim orders would automatically stand revived on restoration of the suit. On the face of it, this excuse so given is totally flimsy and untenable and it is evident that the plaintiff and the defendant no.1 have colluded with each other and by concealment and suppression of material facts relating to previous litigations connected with the suit property pending before the Delhi High Court and the court of Ld. ADJ, Delhi. The Delhi High Court having already restrained the parties from dealing with the properties, subject matter of the suit, or part with possession of any of the properties till the disposal of the suit, any Agreement to Sell knowingly entered into between the parties hurriedly in violation of such an order cannot be implemented and the plaintiff derives no right to approach this Court seeking Specific Performance of the agreement to sell which is in violation of the directions passed by the Delhi High Court. A person who seeks equity must do equity. There has been a suppression and concealment of material facts relating to the earlier partition suit pending before the High Court in which there is an order restraining the parties from transferring the property or possession thereof. By concealing this fact the parties have tried to obtain an order in their favour which would have been contrary to and in complete negation and Page No. 21 of 22 violation of the Injunction Order of the Delhi High Court on 28.11.1995. This they have done malafidely to suit their private/ commercial interests and have polluted the stream of justice and hence they are not suited for the reliefs sought for in both the suits i.e. CS No. 74/ 2015 and CS No. 12/2016. Further, no litigant has a right to unlimited drought upon the court time and public money and easy access to justice cannot be used as a licence to file misconceived and frivolous petitions. Suppression and Concealment of material facts is impermissible to a litigant or even as a technique of Advocacy.
Hence, in the light of the above both the suits i.e. CS No. 74/2015 and CS No.12/2016 are hereby dismissed on cost of Rs.50,000/ (Rupees Fifty Thousand only) to be deposited by the plaintiff and the defendant no.1 in equal proportion i.e. 50% each before the Delhi Legal State Authority, within a period of one month from today failing which the DLSA shall be at liberty to initiate recovery proceedings in accordance with law.
A copy of this order is directed to the placed Secretary, DLSA for information and necessary action in accordance with law.
File be consigned to the Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 13.01.2016 Page No. 22 of 22