Yashoda (alias Sodhan) v. Sukhwinder Singh and Others
B. R. GAVAI, J.
1. The appeal challenges the judgment dated 28 th January 2009
passed by the learned Single Judge of the High Court of Punja b and
Haryana at Chandigarh in Regular Second Appeal No. 3205 of 2007
(O&M), thereby dismissing the appeal filed by the present appellant.
2. Brief facts giving rise to the present appeal are as under:
As per Kartar Singh, the original plaintiff (since dece ased), the
grandfather of respondent Nos.1 and 2, he had entered into an agreement
to sell the agricultural lands on 10 th January 1993. As per the said
agreement, the sale deed was to be executed before 15 th March 1994.
According to the plaintiff, a family settlement also took place between
him and the appellant-defendant in the month of November 1993. It is to
be noted that the plaintiff initially filed a suit for declaration against the
appellant-defendant being Civil Suit No. 141 of 1994 on 10 th February
1994. The said suit was filed on the basis of the said family settlement
that took place in the month of November 1993. On the basis of the
application filed by the plaintiff, the said suit was dismissed as withdrawn
on 7 th May 1994.
3. The plaintiff filed the present suit on 2 nd June 1994 being Suit
No. 536 of 1994 seeking specific performance on the basis of a lleged
agreement to sell dated 10 th January 1993. The appellant-defendant
resisted the suit by filing written statement on 29 th October 1994. In the
written statement, the appellant-defendant categoricall y denied the
existence and/or the execution of any agreement to sell. It was specifically
contended by the appellant-defendant that the second suit was not
maintainable in view of withdrawal of the first suit. The plaintiff filed his
Replication on 14 th November 1994 contending that the first suit for
declaration was filed only to avoid payment of stamp duty and registration
charges.
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS
4. The learned Additional Civil Judge (Senior Division), Sunam
(hereinafter referred to as the “trial court”) vide jud gment and decree
dated 6 th August 1997 dismissed the suit for specific performance. Being
aggrieved thereby, the respondents, i.e., the legal representatives of the
plaintiff filed an appeal before the learned Additional Dis trict Judge,
Sangrur (hereinafter referred to as the “Appellate Court”). The Appellate
Court vide its judgment and decree dated 26 th July 2007 allowed the
appeal and decreed the suit of the plaintiff for specific perf ormance of
agreement to sell dated 10 th January 1993. Being aggrieved thereby, the
appellant-defendant preferred an appeal before the High Court . The
High Court vide impugned judgment dated 28 th January 2009 dismissed
the appeal. Hence, the appellant-defendant has approached this C ourt.
5. We have heard Shri Sidharth Luthra, learned Senior Counsel
appearing on behalf of the appellant-defendant and Shri Narender Hooda,
learned Senior Counsel and Shri Gagan Gupta, learned counsel appearing
on behalf of the respondents-plaintiffs.
6. Shri Luthra, learned Senior Counsel submitted that the tr ial
court, finding that the plaintiff had suppressed the fact w ith regard to
filing of the earlier suit and further that the plaintiff had resiled from the
stand taken by him in the earlier litigation and taken a co ntrary stand,
had dismissed the suit. He submitted that however, the learned Appellate
Court erroneously accepted the stand of the plaintiff in Replication that
the earlier suit was filed only in order to save the s tamp duty and
registration charges and allowed the appeal.
7. Shri Luthra submitted that the perusal of the evidence of the
plaintiff would show that he had not stated anything regarding the earlier
suit in his evidence. He submitted that, the learned Appellate Court has
failed to take into consideration that all the witnesses were closely
associated with the plaintiff and therefore, their e vidence was not
trustworthy. He further submitted that the appellant -defendant had
specifically put up a case that she was a parda-nasheen l ady and that
the plaintiff was her cousin and she had blind faith on him. He submitted
that, taking disadvantage of such a blind faith, the plaintiff had taken her
thumb impression on some paper and used it to create an agreement to
sell. He further submitted that, as a matter of fact, an ap plication for
partition was also filed by the appellant-defendant on 4 th July 1994. He
therefore submitted that the appeal deserves to be allowed and the suit
deserves to be dismissed.
37
8. Shri Luthra relied on various judgments of this Court in support
of the submission that, since the act of the respondents-pl aintiffs of
suppression of material facts amounted to fraud, he was not entitled to a
discretionary relief.
9. Shri Gupta, learned counsel appearing on behalf o f the
respondents-plaintiffs submitted that all the three courts have concurrently
found that the execution of the agreement to sell dated 10 th January
1993 was duly established. He submitted that the trial court as well as
the Appellate Court and the High Court have also found that the appellant-
defendant has failed to establish the fact that the agreement to s ell is a
result of fraud or misrepresentation. Having decided these issues in favour
of the respondents-plaintiffs, the trial court had erred in non-suiting the
respondents-plaintiffs on a technical ground. Shri Gupta, relying on the
judgment of this Court in the case of Arunima Baruah v. Union of
India and Others 1, submitted that, unless the suppression of filing of an
earlier suit is a material fact, such non-disclosure would not be fatal to
the case of the plaintiff. Relying on the judgment of this Co urt in the
case of Harjas Rai Makhija (Dead) Through Legal Representatives
v. Pushparani Jain and Another 2, he submitted that a mere concealment
or non-disclosure of relevant facts without intent to deceive or a bald
allegation of fraud without proof and intent to deceive, would not render
a decree obtained by a party as fraudulent. Shri Gupta submitted that in
the present case, the trial court itself has found that the plaintiff had
failed to establish fraud and as such, the Appellate Court h as rightly
allowed the appeal. He also relies on the judgment of this Court in t he
case of Svenska Handelsbanken v. M/s Indian Charge Chrome and
Others 3. Shri Gupta further relies on the judgment of this Court in the
case of Union of India v. M/s Chaturbhai M. Patel and Co. 4 in support
of his submission that fraud has to be proved beyond reasonable doubt.
10. Shri Gupta further submitted that the earlier suit for declaration
was filed on the claim that the respondents-plaintiffs were ow ner in
possession of the suit property on the basis of settlement deed, whereas
the second suit was filed on the basis of agreement to sell dated
10 th January 1993. He submitted that there is nothing on record to show
1 (2007) 6 SCC 120
2 (2017) 2 SCC 797
3 (1994) 1 SCC 502
4 (1976) 1 SCC 747
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GA V AI, J.]
that the respondents-plaintiffs had any intention to defraud the appellant-
defendant.
11. Shri Hooda, learned Senior Counsel submitted that after the
Replication was allowed by the trial court, it became a part of the plaint.
As such, the respondents-plaintiffs had sufficiently proved a s to the
circumstances in which the earlier suit was filed. He therefore submitted
that the trial court had erred in non-suiting the plaintiff on a trivial ground.
Shri Hooda further submitted that after holding that the res pondents-
plaintiffs had proved the agreement to sell, that the appellant-defendant
had failed to prove that any fraud was played on her and that the issue
under Order II Rule 2 of the Civil Procedure Code, 1908 (for short ,
‘CPC’) was also in favour of the respondents-plaintiffs, the t rial court
had grossly erred in dismissing the suit. He submitted that the said error
has been rightly corrected by the Appellate Court.
12. It is not in dispute that the plaintiff had filed a suit for declaration
being Civil Suit No. 141 of 1994. It will be relevant to refer to some of
the averments in the said plaint:
1. “That previously the defendant was owner to the extent of
1/3 rd share in land measuring 205 Kanal 4 Marla mustatil &
killa numbers as detailed in the heading of the plaint. Copy
of Jamabandi is attached herewith.
2. That previously the defendant was also owner to the extent
of 1/6 share in land measuring 139 Kanal 2 Marla and land
gair mumkin plot measuring 9 Kanal 2 Marla mustatil &
kiolla numbers as detailed in the heading of the plaint. Copy
of Jamabandi is attached herewith.
3. ………
4. That about three months ago and a family settlement took
place between the plaintiff and defendant and the land in
dispute fallen into the share of the plaintiff and the defendant
had delivered the possession of the suit property to the
plaintiff after visiting the spot. In this now the plaintiff is
continuous in possession over disputed property as owner
since last three month. The defendant has remained no
concern.
39
5. That the defendant was requested to admit the claim of the
plaintiff and to get corrected the name of the plaintiff i n
revenue record as owner but the defendant after dilly-
dallying the matter had refused yesterday to do so from
which cause of action accrued to the plaintiff against the
defendant.”
13. The said suit for declaration was filed on 10 th February 1994.
It is to be noted that according to the respondents-plaintiffs, the alleged
agreement to sell was executed on 10 th January 1993. As such it is prior
in point of time to the date of filing of the suit for de claration i.e.
10 th February 1994. There is no mention with regard to the alle ged
agreement to sell in the said plaint.
14. The plaintiff filed an application on 7 th May 1994 for withdrawal
of the said suit for declaration. Vide order of the same dat e, the trial
court, after recording the statement of the plaintiff that he did not want
to proceed with the case, dismissed the same as withdrawn.
15. Within a period of one month, the plaintiff filed the present suit
for specific performance. It will be relevant to refer to some of the
averments in the plaint:
“2. That the defendant agreed to sell the above said suit land to
the plaintiff for a consideration of Rs. 6,50,000/- and the defendant
executed an agreement on dated 10.1.1994 at Patran in favour of
the plaintiff and received a sum of Rs. 50,000/- from the plaintiff
as earnest money and remaining amount was to be paid by t he
plaintiff to the defendant at the time of sale deed before the Sub-
Registrar. The agreement was read over to the defendant who
after admitting the same to be correct put her thumb impressions
in the presence of Lal Singh Lamberdar, Amolak Singh s/o Jagroop
Singh and Bhagwant Singh S/o Krishan Singh resident of Shadihari
and witnesses also attested the said agreement in the presence of
defendant. The plaintiff put his thumb impression in token of
correctness of the above said agreement.
……….
15. That there is no litigation pending or decided between t he
parties with regard to the agreement in question.”
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GA V AI, J.]
16. It could thus clearly be seen that, the present suit ba ses its
claim only on the agreement to sell dated 10 th January 1993. Leave
aside there being any reference to the earlier suit, the plaintiff baldly
stated that there was no litigation pending or decided between the parties
with regard to the agreement in question. No doubt that it is sought to be
argued by the learned counsel for the respondents-plaintiffs tha t the
statement in paragraph (15) of the plaint is only with regard to the litigation
with respect to the agreement in question. It is stated that the said
paragraph does not mention litigation with regard to the land in question
and as such, there is no suppression of material fact.
17. After the suit for specific performance was filed, the written
statement was filed by the appellant-defendant on 29 th October 1994. In
the written statement, the appellant-defendant has stated thus:
“3. That the plaintiff file the said suit no.141 dt. 10.2.1994 in the
Court of P .C.S. Sub Judge First Class Sunam on 10.2.1994 which
was dismiss on 7.5.1994, but the plaintiff ending between the
parties, on this ground only the suit of the plaintiff is liable to be
dismissed. In case any agreement executed earlier betw een the
parties, the plaintiff must mention about this in the suit, hence on
this alone ground the suit is liable to be dismissed.
4) That the plaintiff on 10.2.1994 in regard to the land filed Suit
for pre-emption Right against the defendant in which the plaintiff
shown himself owner in possession of the land in question, the
said suit was consigned to record on 7.5.1994. In the said suit the
defendant did not mention anything in regard to the agreement
DT 10.1.1994.
5) That the plaintiff did not come before the Hon’ble Court in
clean hand and he has concealed the matter before the Hon’b le
Court, hence the suit is liable to be dismissed.
6) That the plaintiff and Defendant are having close relations with
each other. The plaintiff is uncle’s son of Defendant. Defendant
has no brother, hence he treated plaintiff as her real brother an d
believe upon him. Defendant is aged lady her eye sight is very
week and villager lady, she has no legal knowledge. The plaintiff
getting the wrongful gain of her believe with the intention to grab
her share has taken the thumb impression on the writin g by
committing cheating and fraudulent means.”
41
18. After the appellant-defendant took objection with regard t o
the earlier suit being withdrawn, the plaintiff came with the Replication
application wherein, for the first time, he came up with a story that the
earlier suit was filed only to save the stamp duty and registration fee and
since the appellant-defendant became dishonest later on, the p laintiff
withdrew the suit. It is thus clear that the Replication was filed as an
after-thought only to cure the lacuna as pointed out i n the written
statement. The trial court found that a person cannot be per mitted to
assume inconsistent positions in the court of law to play fast and loose
and to blow hot and cold. The trial court, relying on the judgment of the
Punjab and Haryana High Court in the case of Jaspal Singh v. Sardul
Singh 5, held that a party cannot be permitted to approbate and reprobate
and resile from that position. The trial court has also found tha t the
explanation submitted by the plaintiff with regard to the circumstances
under which the earlier suit was filed, speaks volumes of the dishonest
intention of the plaintiff. The trial court also found that the plaintiff has
made an attempt to defraud the State of its revenue. The tri al court
found that the past litigation has a direct bearing on the mer its of the
present controversy. It observed that the plaintiff was dut y bound to
plead the same in the plaint. The trial court found that under Order VII
Rule 1 (j) of the CPC (as applicable in Punjab), the statement with regard
to earlier litigation has to be made in the plaint. It will be relevant to refer
to the said provision:
“ORDER VII
PLAINT
1. Particulars to be contained in plaint.
………….
(j) a statement to the effect that no suit between the same parties,
or between the parties under whom they or any of them cla im,
litigating on the same grounds has been previously institute d or
finally decided by a Court of competent jurisdiction or lim ited
jurisdiction, and if so, with what results.”
19. The trial court therefore, relying on the judgment of this Court
in the case of S.P. Chengalvaraya Naidu (Dead) By LRs. v.
5 1994 (3) Recent Revenue Reports 106 (Punjab and Har yana)
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GA V AI, J.]
Jagannath (Dead) By LRs. and Others 6, dismissed the suit, though it
had answered the other issues in favour of the respondents-plaintiffs.
20. This well-reasoned judgment of the trial court came to be
reversed by the Appellate Court. Accepting the explana tion of the
respondents-plaintiffs in Replication that the earlier suit was filed in order
to save the registration fee and the stamp duty, the Appellate Court held
that the non-disclosure of the plaintiff about earlier litigation in the plaint
but clarifying it later in the Replication, was not such a crucial point on
the basis of which he could be non-suited in toto.
21. Though the suit was dismissed by the trial court and decreed
by the Appellate Court, the High Court observed thus:
“The learned trial Court came to the conclusion that the
agreement to sell and the default on the part of the appellant has
been established and therefore directed the agreement to be
enforced by way of execution of the sale deed.
In appeal, the findings of the learned trial Court were
affirmed.”
22. It could thus be seen that there is total non-application of mind
by the High Court. The High Court did not even care to refer t o the
grounds raised in the appeal with regard to the effect of non-disclosure
of filing and withdrawal of the earlier suit. The High Court dismissed the
suit on the basis that it arises out of the concurrent findings of fact and
no question of law is involved.
23. What would be the effect of suppression of earlier proceedings
has been considered by this Court in the case of S.P. Chengalvaraya
Naidu (supra). The Court observed thus:
“5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether in the facts and
circumstances of this case, Jagannath obtained the prelimin ary
decree by playing fraud on the court. The High Court, however,
went haywire and made observations which are wholly perverse.
We do not agree with the High Court that “there is no legal duty
cast upon the plaintiff to come to court with a true case and prove
it by true evidence”. The principle of “finality of litigation” cannot
be pressed to the extent of such an absurdity that it becom es an
6 (1994) 1 SCC 1
43
engine of fraud in the hands of dishonest litigants. The courts of
law are meant for imparting justice between the parties. One who
comes to the court, must come with clean hands. We are
constrained to say that more often than not, process of the court
is being abused. Property-grabbers, tax-evaders, ba nk-loan-
dodgers and other unscrupulous persons from all walks of life
find the court-process a convenient lever to retain the illegal gains
indefinitely. We have no hesitation to say that a person, wh o’s
case is based on falsehood, has no right to approach the court. He
can be summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on
the court. A fraud is an act of deliberate deception with the design
of securing something by taking unfair advantage of another. It is
a deception in order to gain by another’s loss. It is a cheat ing
intended to get an advantage. Jagannath was working as a clerk
with Chunilal Sowcar. He purchased the property in the court
auction on behalf of Chunilal Sowcar. He had, on his own volition,
executed the registered release deed (Ex. B-15) in fav our of
Chunilal Sowcar regarding the property in dispute. He knew that
the appellants had paid the total decretal amount to his mas ter
Chunilal Sowcar. Without disclosing all these facts, he filed the
suit for the partition of the property on the ground that he ha d
purchased the property on his own behalf and not on behalf of
Chunilal Sowcar. Non-production and even non-mentioning of the
release deed at the trial is tantamount to playing fraud on th e
court. We do not agree with the observations of the High Court
that the appellants-defendants could have easily produced the
certified registered copy of Ex. B-15 and non-suited the plaintiff.
A litigant, who approaches the court, is bound to produce all the
documents executed by him which are relevant to the litigation. If
he withholds a vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on the court as
well as on the opposite party.”
24. Again in the case of A.V. Papayya Sastry and Others v.
Govt. of A.P. and Others 7, this Court observed thus:
7 (2007) 4 SCC 221
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GA V AI, J.]
“21. Now, it is well-settled principle of law that if any judgment
or order is obtained by fraud, it cannot be said to be a judgment or
order in law. Before three centuries, Chief Justice Edward Coke
proclaimed:
“Fraud avoids all judicial acts, ecclesiastical or temporal.”
22. It is thus settled proposition of law that a judgment, decree or
order obtained by playing fraud on the court, tribunal or authority
is a nullity and non est in the eye of the law. Such a judgme nt,
decree or order—by the first court or by the final court—has to
be treated as nullity by every court, superior or inferior. It can be
challenged in any court, at any time, in appeal, revision, writ or
even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956)
1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] Lord
Denning observed : (All ER p. 345 C)
“No judgment of a court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud.”
24. In Duchess of Kingstone, Smith’s Leading Cases , 13th Edn.,
p. 644, explaining the nature of fraud, de Grey, C.J. stated tha t
though a judgment would be res judicata and not impeachable
from within, it might be impeachable from without. In other words,
though it is not permissible to show that the court was “mistaken”,
it might be shown that it was “misled”. There is an ess ential
distinction between mistake and trickery. The clear implication of
the distinction is that an action to set aside a judgment cannot be
brought on the ground that it has been decided wrongly, namely,
that on the merits, the decision was one which should not have
been rendered, but it can be set aside, if the court was im posed
upon or tricked into giving the judgment.
25. It has been said : fraud and justice never dwell together ( fraus
et jus nunquam cohabitant ); or fraud and deceit ought to benefit
none ( fraus et dolus nemini patrocinari debent ).
26. Fraud may be defined as an act of deliberate deception with
the design of securing some unfair or undeserved benefit by taking
undue advantage of another. In fraud one gains at the loss of
another. Even most solemn proceedings stand vitiated if they are
45
actuated by fraud. Fraud is thus an extrinsic collateral act which
vitiates all judicial acts, whether in rem or in personam . The
principle of “finality of litigation” cannot be stretched to the extent
of an absurdity that it can be utilised as an engine of oppression
by dishonest and fraudulent litigants.”
25.As observed, there is an essential distinction between mistake
and trickery. In the present case, it is sought to be argued on behalf of
the respondents-plaintiffs that the averment in paragra ph (15) of the
plaint was with regard to a lis on the basis of the agreement. It is submitted
that the earlier suit was not based on the agreement and as such, there
was no suppression. We find the argument to be unsustainable. We are
of the view that such a statement was made as a trickery so as to obtain
the judgment by misleading the court.
26. In the case of H.N. Jagannath and Others v. State of
Karnataka and Others 8, the land owners filed civil suits one after other
in respect of acquired lands. The said suits were withdraw n without
liberty to approach the court again. Simultaneously, land owne rs also
filed writ petitions challenging the acquisition on different grounds. The
same were dismissed. Thereafter, the land owners su bmitted an
application to the State Government for denotification of the land. Since
it was not considered, one more writ petition came to be filed in which a
direction was issued for consideration of the representation. The said
representation was rejected in the year 1992. The land owners fil ed
another writ petition questioning the rejection of its representation. The
same was also dismissed. Thereafter, six more writ petitions were filed
again questioning the validity of acquisition proceedings and yet again,
they were dismissed. In an intra-court appeal, the Di vision Bench
relegated the parties to the civil court to work out their remedies. Criticizing
the approach of the Division Bench, this Court observed thus:
“14. It is not in dispute that the property in question alon g with
other properties was acquired by the BDA in accordance wit h
law by issuing notifications under Sections 17(1) and 19(1) of the
BDA Act as far back as in the year 1977 and in the year 1979.
BDA has formed and allotted the sites. Most of the allottees have
constructed houses and are residing peacefully. How ever,
Respondent 4 still contends that possession has remained with it
and therefore the acquisition needs to be set aside and tha t the
8 (2018) 11 SCC 104
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GAVAI, J.]
land should be denotified. As detailed supra, Respondent 4 has
already approached the civil court thrice and High Court on s ix
occasions. Whenever the suits are withdrawn, Respondent 4 has
not sought any liberty to approach the civil court once again. Thus,
it was not open for Respondent 4 to approach the civil court
repeatedly for the very same reliefs. Consistently, the civil court
on three occasions has negatived the contention of the appellant.
15. Even when Respondent 4 approached the High Court of
Karnataka by filing the writ petitions and writ appeals, it has failed.
Futile attempts have been made by Respondent 4 only to see that
the allottees are harassed and to keep the litigation pending. After
the final notification, an award was passed and compensation was
deposited. Possession was taken and the same was evidenced by
the panchnama prepared as far back as on 23-9-1986. The
notification under Section 16(2) of the Land Acquisition Act was
issued on 20-1-1987 disclosing the factum of taking possession of
the land in question. Attempt made by Respondent 4 for getting
the disputed land denotified has also failed as far back as on 15-1-
1993, when the State Government had rejected the representation
of Respondent 4 seeking denotification. The writ petition filed by
Respondent 4 challenging such order of dismissal of the
representation was also dismissed. Despite the same, Respondent
4 is pursuing the matter by filing writ petition after writ petition. It
is a clear case of abuse of process of law as well as the court.
16. We do not find any reason to interfere in the finding of fact
rendered by the learned Single Judge that possession was take n
by BDA on 23-9-1986. There is nothing to be adjudicated further
in respect of the title or possession of the property. Th e title as
well as the possession of the property has vested with BDA f or
about more than 30 years prior to this day and sites were formed
and allotted to various persons including the appellant herein. In
the light of such voluminous records and having regard to the fact
that Respondent 4 has been repeatedly making futile attempts by
approaching the courts of law by raising frivolous contentions, the
Division Bench ought not to have granted liberty to Respondent 4
to approach the civil court once again for the very same relief, for
which it has failed earlier. In view of this, the learned counsel for
the appellant is justified in contending that the Division Bench has
47
completely erred in reviving the dispute which had long been given
a legal quietus after a series of litigations. The judgm ent of the
Division Bench, if allowed to stand, will unsettle the settled state
of affairs involving hundreds of allottees of sites wh o have
constructed the houses and are residing therein. The impugned
judgment of the Division Bench virtually sets at naught a number
of judgments rendered by the civil court as well as the High Court
in the very matter (and was given without any reason much less a
valid reason).
17. ……..
18. ……..
19. Having regard to the discussion made supra, in our considered
opinion, it is a clear case of contempt committed by Respondent 4
by repeatedly approaching the courts of law for almost the same
relief which was negatived by the courts for three d ecades.
However, we decline to initiate contempt proceedings and to
impose heavy costs, under the peculiar facts and circumstance of
this case.”
27.We find that the Appellate Court has grossly erred in reversing
the judgment and decree of the trial court which had dismissed the suit
taking into consideration the conduct of the respondents-plaintiffs.
28. Insofar as the reliance placed by Shri Gupta on the judgment
of this Court in the case of Arunima Baruah (supra) is concerned, the
Court observed thus:
“12. It is trite law that so as to enable the court to r efuse to
exercise its discretionary jurisdiction suppression must be of
material fact. What would be a material fact, suppression whereof
would disentitle the appellant to obtain a discretionary relief, would
depend upon the facts and circumstances of each case. Material
fact would mean material for the purpose of determination of the
lis, the logical corollary whereof would be that whether the same
was material for grant or denial of the relief. If the fact suppressed
is not material for determination of the lis between the parties, the
court may not refuse to exercise its discretionary jurisdiction. It is
also trite that a person invoking the discretionary jurisdiction of
the court cannot be allowed to approach it with a pair of dir ty
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GAVAI, J.]
hands. But even if the said dirt is removed and the hands become
clean, whether the relief would still be denied is the question.”
29. It could thus be seen that this Court has held that what would
be a ‘material fact’ would depend upon the facts and circumstances of
each case. It has also been held that ‘material fact’ would mean material
for the purpose of determination of the lis. It has also been held that a
person invoking the discretionary jurisdiction of the court can not be
allowed to approach it with a pair of dirty hands. In the pr esent case,
filing of the earlier suit and withdrawal thereof without lib erty to file
another suit was a material fact. Undisputedly, the respondents-plaintiffs
had failed to approach the court with clean hands. As such, we find that
the said judgment would be of no assistance to the case of the respondents-
plaintiffs.
30. Insofar as the judgment in the case of Harjas Rai Makhija
(supra) is concerned, in the facts of the said case, the Court held that
though the appellant Makhija had an opportunity to prove the allegation
of fraud when he filed an application under Order XLI Rule 2 7 of the
CPC, he missed that opportunity right up to this Court. He took a second
shot at alleging fraud and filed another suit. However, he failed in the
trial court as well as the High Court as he could not produce any evidence
to prove that fraud was committed by the respondent when she obtained
the decree dated 4 th October 1999. As such, the said judgment would
not be applicable to the facts of the present case.
31. Insofar as the judgment in the case of M/s Chaturbhai M.
Patel and Co. (supra) is concerned, it was the case of defendant that
some amount of fraud had been played on the defendant by the collusion
of the plaintiff with his father. This Court, concurring with the findings of
the High Court, found that the circumstances relied on by the appellant
were not at all conclusive to prove the case of fraud. The presen t case
is a case of suppression of a material fact with regard t o filing and
withdrawal of earlier proceedings. As such, the said judgment would not
be applicable to the facts of the present case.
32. Similarly, the facts in the case of Svenska Handelsbanken
(supra) were also totally different and as such, reliance on the said
judgment is also of no assistance to the case of the respondents-plaintiffs
in the present case.
49
33. In that view of the matter, we find that the Appellate Court
has grossly erred in reversing the well-reasoned judgment and decree of
the trial court. As already observed hereinabove, the judgme nt of the
High Court is passed without application of mind. The High Court has
gone on a premise that the trial court had decreed the suit and the
Appellate Court has dismissed the appeal. This is factually erroneous.
34. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The judgment and decree dated 26 th July 2007 passed by
the Appellate Court in Civil Appeal No. 191 of 2006 and
the judgment passed by the High Court dated 28 th January
2009 in R.S.A. No. 3205 of 2007 (O&M) are quashed and
set aside; and
(iii) The judgment and decree dated 6 th August 1997 passed by
the trial court in Suit No. 536 of 1994 thereby dismissing
the suit of the respondents-plaintiffs is upheld.
35. Pending application(s), if any, shall stand disposed of in the
above terms. No order as to costs.
Nidhi Jain Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND
OTHERS [B. R. GAVAI, J.]