Suit: Suppression of material fact – Dismissal of the previous suit as withdrawn without liberty and this fact not presented before the Court in a subsequent suit – Effect of – On facts, plaintiff initially filed a suit for declaration against the appellant/defendant which came to be dismissed as withdrawn – Thereafter, the plaintiff filed suit for specific performance on the basis of alleged agreement to sell without disclosing the fact of earlier suit – Trial court dismissed the suit on the ground that the past litigation has direct bearing on the merits of the present controversy and the plaintiff was bound to plead the same – Aggrieved, respondents-legal representatives of the plaintiff filed an appeal which was allowed, as also upheld by the High Court – On appeal, held: ‘Material fact’ would mean material for the purpose of determination of the lis – On facts, filing of the earlier suit and withdrawal thereof without liberty to file another suit was a material fact – Respondents/plaintiffs failed to approach the court with clean hands – Statement in the plaint regarding the earlier suit was made as a trickery so as to obtain the judgment by misleading the Court – Thus, the appellate court has grossly erred in reversing the judgment and decree of the trial court – Further, there is total non-application of mind, by the High Court as it did not refer to the grounds raised in appeal with regards to the effect of non-disclosure of filing and withdrawal of the earlier suit – Thus, the judgment passed by the appellate court as also the High Court, quashed and set aside and that of the trial court is upheld.
Allowing the appeal, the Court
HELD: 1.1 The present suit bases its claim only on the agreement to sell. 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 counsel for the respondents- plaintiffs that the statement in 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. [Para 16][40-A-C]
1.2 After the appellant--defendant took objection with regard to the earlier suit being withdrawn, the plaintiff came with the replication application wherein, for the first time, he came up with a story that the earlier suit was filed only to save the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 plaintiff withdrew the suit. It is thus clear that the replication was filed as an after-thought only to cure the lacuna as pointed out in the written statement. The trial court found that a person cannot be permitted to assume inconsistent positions in the court of law to play fast and loose and to blow hot and cold. The trial court also found that 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 trial court found that the past litigation has a direct bearing on the merits of the present controversy. It observed that the plaintiff was duty 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. The trial court therefore dismissed the suit, though it had answered the other issues in favour of the respondents-plaintiffs. [Para 18][41-A-E]
1.3 This well-reasoned judgment of the trial court came to be reversed by the appellate court. Accepting the explanation 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. [Para 20][42-A-C]
1.4 It could be seen that there is total non- application of mind by the High Court. The High Court did not even care to refer to 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. [Para 22][42-D-F]
1.5 There is an essential distinction between mistake and trickery. In the instant case, it is sought to be argued on behalf of the respondents--plaintiffs that the averment in 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. The submission is unsustainable. Such a statement was made as a trickery so as to obtain the judgment by misleading the court. [Para 25][45-B-C]
1.6 The appellate court grossly erred in reversing the judgment and decree of the trial court which had dismissed the suit taking into consideration the conduct of the respondentsplaintiffs. [Para 27][47-D-E]
1.7 What would be a ‘material fact’ would depend upon the facts and circumstances of each case. ‘Material fact’ would mean material for the purpose of determination of the lis. A person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. In the instant case, filing of the earlier suit and withdrawal thereof without liberty to file another suit was a material fact. Undisputedly, the respondents-plaintiffs had failed to approach the court with clean hands. [Para 29][48-A-C]
1.8 The appellate court grossly erred in reversing the wellreasoned judgment and decree of the trial court. The judgment 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. Thus, the judgment and decree passed by the appellate court and the judgment passed by the High Court are quashed and set aside. The judgment and decree passed by the trial court in the Suit thereby dismissing the suit of the respondents- plaintiffs is upheld. [Para 33, 34][49-A-D] Arunima Baruah v. Union of India and Others (2007) 6 SCC 120 : [2007] 5 SCR 904; Harjas Rai Makhija
(Dead) Through Legal Representatives v. Pushparani Jain and Another (2017) 2 SCC 797 : [2017] 1 SCR 1; Union of India v. M/s Chaturbhai M. Patel and Co. (1976) 1 SCC 747 : [1976] 2 SCR 902; Svenska
Handelsbanken v. M/s Indian Charge Chrome and
Others (1994) 1 SCC 502 : [1993] 3 Suppl. SCR 323 – held inapplicable.
Jaspal Singh v. Sardul Singh 1994 (3) Recent Revenue Reports 106 (Punjab and Haryana); S.P.
Chengalvaraya Naidu (Dead) By LRs. v. Jagannath (Dead) By LRs. and Others (1994) 1 SCC 1 : [1993] 3 Suppl. SCR 422; A.V. Papayya Sastry and Others v. Govt. of A.P. and Others (2007) 4 SCC 221 : [2007] 3 SCR 603; H.N. Jagannath and Others v. State of
Karnataka and Others (2018) 11 SCC 104 : [2008] 13 SCR 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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