9911796707
TMI Blog1997 (12) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complex. Between Cottage No. 6 and Cottage No. 7 there is a big lawn. The dispute between the parties is about the letting out and use and enjoyment of the said lawn by the occupants of Cottage No. 6, namely, the respondent. 3. By a lease deed entered into between the parties on 2nd September, 1996, Cottage No. 6 at the Shanti Sports Club Complex, Vasant Kunj, New Delhi consisting of six bedrooms, one drawing-cum-dining room, one entrance lounge, kitchen, seven bathrooms and servant room was let to the respondent by the appellant for the residence of its Managing Director Mr. Christopher J. Shaw and his family members. Simultaneously with the execution of the lease deed, certain other documents, namely, the Hire Agreement for hiring of the furniture, fittings, carpets, rugs, geysers, air-conditioners, refrigerators, etc., Agreement for Security Services and Maintenance and Service Agreement for providing maintenance for the house, furniture, electrical equipments, lawn and plants etc. were also entered into between the parties. 4. It appears that the lawn between Cottage Nos. 6 and 7 was being given on hire for marriages and private parties by the appellant which allegedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said cottage. (emphasis supplied) 8. On 6th February, 1997, the Hon'ble Single Judge passed the order of injunction in favor of the respondent No. 1 and against the appellant, in the following terms: "IA.1124/97 Issue notice to the defendant for 13th May, 1997. I have perused the plaint, the application, the affidavit and the documents produced. Having regard to the contentions in the plaint and the averments in the application, and also in the light of the documents produced, I am satisfied that the plaintiff has made out a strong, prima facie, case for an ex-parte interim order. Delay in passing the order will defeat the object of granting the injunction. Hence, there will be an ex-parte interim order of injunction restraining the defendant, his agents, employees and servants, from in any manner disturbing or interfering with the quiet and peaceful possession, use and occupation of the demised premises, Cottage No. 6, Shanti Sports Club, Vasant Kunj, New Delhi and the appurtenant lawn and also from in any manner hindering, or obstructing free and unrestricted access and approach to the said cottage. Provisions of Order 39, Rule 3 of the Code of Civil Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the second suit by the respondent is an abuse of the process of the Court, and an attempt has been made to obstruct the administration of justice, and whether in the facts and circumstances of the case the said respondent was at all entitled to the grant of injunction, it will be proper to compare the pleadings in both the suits and to also see whether the respondent had disclosed the pendency of the earlier suit while filing the second suit and whether it was also informed to the court that in the earlier suit the Court had not granted any stay in favor of the respondents. 11. The paragraphs 5 to 8 of the plaint in Suit No. 3064/96 and paragraphs 8 to 11 of the plaint in Suit No. 261/97 are almost identical. The following table will show the respective contentions. Paragraphs 5 to 8 of Suit No. 3064/96 Paragraphs 8 to 11 of Suit No. 261/97 5. "It is stated that appurtenant to the Demised Premises, there is a garden and at the end of the garden there is another Cottage identical to that of the plaintiffs. At the time of the lease, the defendant had represented to the plaintiffs that the garden would always remain vacant and is meant to be used for the families and the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights assured to the plaintiff. 7. As a consequence of this, there is hardly any moment when plaintiff No. 2 Mr. Christopher J. Shaw and his family have been able to have free and unobstructed access to the leased premises or enjoy quite and peaceful possession of the Demised Premises. 10. As a consequence of this, there is hardly any moment when plaintiff's Managing Director Mr. Christopher J. Shaw and his family have been able to have free and unobstructed access to the leased premises or enjoy quiet and peaceful possession of the Demised Premises. 8. It is stated that 30-40 people come during the day either to install or remove temporary structures for the functions and in the evening there are more than 400-500 people attending the functions. All these parties and functions go on until 5 O'Clock in the morning. Further, it is stated that the band and loud music on the loudspeakers is played at these functions and despite the requests of the plaintiff No. 2, nothing has been done to stop these functions being held adjoining the Demised Premises. As a result of this, the said Mr. Christopher J. Shaw is unable to use his study room or watch TV or invite any guest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent after making a grievance about the appellant having permitted use of the lawn to the outsiders for marriages and other functions which resulted in obstructions to the free and unrestricted access and approach to the cottage, did not mention anything about the Court having not granted any stay in favor of the respondent. 12. At this stage, we may also compare the relief's claimed by the plaintiff/respondents in the respective applications for injunction in Suit No. 3064/96 as well as in Suit No. 261/97: Relief claimed in Suit No. 3064/96 Relief claimed in Suit No. 261/97 restrain the defendant, his employees, servants, agents, successors, assigns etc. from holding functions on the garden as shown in the site plan (Annexure-A hereto) during the period of the said lease agreement dated September 2, 1996 and further restrain the defendant, his employees etc. from causing any obstruction in the ingress and egress of the plaintiffs to the demised premises Cottage No. 6, Shanti Sports Club, Vasant Kunj, New Delhi. In the circumstances, the plaintiff submits that this Hon'ble Court may be pleased to order and direct and restrain the Defendant his agents, employees a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint and the application in the earlier suit from the court and by not disclosing to the Court about the proceedings in the earlier suit and the stay having not been granted to it, the plaintiff/respondent had tried to get an advantage from the Court and was, Therefore, guilty of playing fraud on the Court as well as on the respondent. The following observations of the Supreme Court in the aforesaid case are relevant for purposes of present case : "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 preliminary 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 becomes an 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier suit was almost similar to the relief which had been claimed in the subsequent suit. In our opinion, it was obligatory upon the respondent to disclose to the Court that in the application filed in the earlier suit a similar relief had been claimed, however, the Court had not granted the said relief. In our view, if these facts were before the Court on February 6, 1997 when the second suit came up for hearing before it, may be Hon'ble the Single Judge was persuaded not to grant any ex parte stay in favor of the respondent. Moreover, in a suit for specific performance of an agreement to register the agreement of lease, it appears to us that the plaintiff could not claim an injunction which had already been claimed in Suit No. 3064/96. We are, Therefore, of the opinion that the respondent has not come to the Court with clean hands and has also suppressed material facts from the Court with a view to gain advantage in the second suit. This in our view is clearly over reaching the Court. 17. As held by the Supreme Court in Advocate General, State of Bihar v. M/s. Madhya Pradesh Khair Industries and Another, 1980 3 SCC 311, every abuse of the process of the Court may not n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
