YASHODA (ALIAS SODHAN) versus SUKHWINDER SINGH AND OTHERS

Citation: [2022] 12 S.C.R. 31 · Decided: 12-09-2022 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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YASHODA (ALIAS SODHAN)
v.
SUKHWINDER SINGH AND OTHERS
(Civil Appeal No. 8247 of 2009)
SEPTEMBER 12, 2022
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
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suit as withdrawn without liberty and this fact not presented before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came to be dismissed as withdrawn – Thereafter, the plaintiff filed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
[2022] 12 S.C.R. 31
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
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

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