Swarn Singh vs Surinder Kumar & Ors. on 22 December, 2010

[Cites 15, Cited by 3]

Delhi High Court

Swarn Singh vs Surinder Kumar & Ors. on 22 December, 2010

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 CS(OS) No. 166/1997 Page 1 of 20 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 CS(OS) No. 166/1997 Page 2 of 20 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 CS(OS) No. 166/1997 Page 3 of 20 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. CS(OS) No. 166/1997 Page 4 of 20

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 CS(OS) No. 166/1997 Page 5 of 20 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 CS(OS) No. 166/1997 Page 6 of 20 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."

CS(OS) No. 166/1997 Page 7 of 20

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 CS(OS) No. 166/1997 Page 8 of 20 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 CS(OS) No. 166/1997 Page 9 of 20 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 CS(OS) No. 166/1997 Page 10 of 20 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-

CS(OS) No. 166/1997 Page 11 of 20

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 CS(OS) No. 166/1997 Page 12 of 20 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 CS(OS) No. 166/1997 Page 13 of 20 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 CS(OS) No. 166/1997 Page 14 of 20 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 CS(OS) No. 166/1997 Page 15 of 20 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 CS(OS) No. 166/1997 Page 16 of 20 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 CS(OS) No. 166/1997 Page 17 of 20 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 CS(OS) No. 166/1997 Page 18 of 20 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 CS(OS) No. 166/1997 Page 19 of 20 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 CS(OS) No. 166/1997 Page 20 of 20

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