* 1 * N/M-1099.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1099 OF 2010 IN APPEAL (LODG) NO. 608 OF 2007 IN S.C. SUIT NO. 435 OF 1980 ALONGWITH NOTICE OF MOTION NO. 1101 OF 2010 IN NOTICE OF MOTION NO. 2687 OF 2007 IN APPEAL (LODG) NO. 608 OF 2007 IN S.C. SUIT NO. 435 OF 1980 Madhu Fantasy Land Pvt.Ltd & Ors. .. Appellants/ Orig.Plaintiffs. :VERSUS: Mrs. Maki Homi Chibber and Ors. .. Respondents/ Orig.Defendants. ***** Mr. Kevin Setalwad i/by. M/s. M.V. Kini & Co.,Advocate for the appellants. Mr. Girish Desai i/by. M/s. Hooseini Doctor & Co., ,Advocate for respondent no.1. Mr. Rahul Narichania i/by. B. Amin & Co.,Advocate for * 2 * N/M-1099.2010 the respondent no.4. CORAM : D.K. DESHMUKH, & SMT. R.P. SONDURBALDOTA, JJ. DATED : 22nd JUNE, 2010. P.C. :- 1. The above two Notice of Motions are taken out by appellant no.2-Mrs. Bilquees Begum for condonation of delay of 598 days in taking out Notice of Motions for setting aside the order dated 13th June, 2008 passed in Appeal (Lodg) No. 608 of 2007 and restoration of the said appeal to file. 2. The material and relevant facts are that :- . Suit No.435 of 1980 was filed by (1) Madhu Fantasy Land Pvt Ltd (2) Mrs. Bilquees Begum Syed (3) Mr. Mohamed Naeem Merchant. Prayer clause (a) reads as under :- “(a). that the 1st Defendant be ordered and * 3 * N/M-1099.2010 decreed to specifically perform the agreement for sale dated 22nd September, 1977 in favour of the 1st plaintiff or in favour of the 2nd and 3rd plaintiffs as stated in the plaint.” 3. Thus a decree of specific performance of agreement of sale was sought in favour of plaintiff no.1 i.e. Madhu Fantasy Land Pvt.Ltd or in the alternative jointly in the name of Bilquees Begum and Mohamed Naees Merchant. By prayer clause (b), a money decree in the alternative for return of Rs.60,000/- with interest was sought. The suit was decided by judgment dated 25th April, 2007. The decree for specific performance of the agreement was not granted. Instead, a money decree in the amount of Rs.60,000/- with interest was passed. Appeal (Lodg) No.608 of 2007 was filed by all the three plaintiffs challenging the judgment and decree dated 25th April, 2007. There was delay in filing that appeal. Therefore, Notice of Motion No. 2686 of 2007 was filed. That * 4 * N/M-1099.2010 Motion came before a Division Bench of this court on 13th June, 2008 and as none appeared for the appellants, the Motion was dismissed for default. On the same day, it appears that an order was passed on Appeal (Lodg) No.608 of 2007 dismissing the appeal. This Notice of Motion is taken out only by the 2nd plaintiff for condonation of delay of 598 days and the prayer in the Motion is for recalling of the order dated 13th June, 2008 passed in Notice of Motion No.2687 of 2007 and for restoration of the appeal. 4. We have heard the learned counsel for both sides. The explanation for the delay is to be found in paragraph-4. It reads as under :- “4. I say and submit that M/s. Bantawala & Co.,advocates were representing the appellants all along right from the suit and they were pursuing the proceedings before the Hon’ble Appeal Court. I say that since the appellant nos.2 and 3 are the interested parties as the right of the agreement dated 22.09.1977 has been assigned in favour of appellants no.2 and 3 by * 5 * N/M-1099.2010 the appellant no.1 vide a further agreement dated 3.3.1978, which was with the consent of the respondents. I say and submit that I am 70 years old and moreover suffering from High Blood Pressure, Diabetics and Osteoporosis and due to my indifferent health, I specifically requested my Advocates to take care of the matter. I say and submit that since my Advocates are pursuing the matter even in the suit stage, therefore, I had absolute faith with my advocate. I say and submit that my advocates were not calling me to the court and they themselves are looking after the case proceedings, all along. I say and submit that when there was no communication of whatsoever nature for a considerable time, then, I started enquiring from my Advocate but there was no proper reply and the said Advocates are insisting upon clearing all their professional fees etc. Thereupon, I decided to change the Advocate and by my letter dated 2.2.2010, I while settling the dues of my earlier advocate, took the case papers from the said advocate and handed over the same to my present advocates on 10.2.2010. Annexed hereto and marked as Exhibit-B is the copy of the letter dated 2.2.2010.” 5. The plaintiff no.2 has thus tried to blame the * 6 * N/M-1099.2010 advocate. However, what is pertinent to be noted is that she has nowhere stated in the Affidavit, when she came to know that her Notice of Motion is dismissed for default of appearance of the lawyer,? why she did not make inquiries with the lawyer for his non-appearance before the court? What is further to be seen here is that, though the appellant no.2 is making complaint against the Advocate for not keeping her informed about the progress in the suit and the Notice of Motion, she has suppressed the fact that she had in her deposition in the civil suit stated that she is not aware of the subject matter of the suit and that the entire matter was handled by her husband. In the Affidavit, she has not stated, whether her husband was being informed by the lawyer or not about the matter. On behalf of the respondents, reply has been filed and this fact has been pointed out that appellant no.2 has herself stated in her deposition, that it was it her husband who * 7 * N/M-1099.2010 was looking after the litigation. It is thus clear that an attempt to mislead the court has been made by appellant no.2. The Supreme Court in its judgment in the case of Oswal Fats and Oils Ltd V/s. Additional Commissioner (Administration), Bareilly Division, Bareilly and Others , Civil Appeal No. 7982 of 2002 decided on 1 st April, 2010 has held that a litigant owes a duty to the court to bring out before the court all the facts and refrain from concealing/suppressing material facts within his knowledge and if a litigant is found to be guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person. The Supreme Court has made observations to the similar effect, in its judgment in the case of Dalip Singh V/s. State of Uttar Pradesh and Others reported in (2010)2 S.C.C. page 114. The Supreme Court in paragraph-2 of its judgment in Dalip Singh’s case * 8 * N/M-1099.2010 has observed thus :- “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.” 6. What is further to be seen is that, though the Suit was filed by three plaintiffs and the appeal is also filed by three appellants, the present Notice of Motion is taken out only by appellant no.2. But in the affidavit filed in support of the Motion, this fact that the restoration of the motion for condonation of delay and appeal is * 9 * N/M-1099.2010 sought only by the second appellant is not mentioned anywhere. We find that the second appellant who has taken out these proceedings is not only guilty of making false and misleading statements, but, has suppressed material and relevant facts from the court and therefore in view of the law laid down by the Supreme Court is not entitled to any relief. What is further to be seen is that the learned counsel for the second appellant, candidly stated before us that the second plaintiff is also not aware as to who is in-charge of the first plaintif. In any case, the first and the third plaintiff, do not appear to be interested in the proceedings. We have quoted prayer clause (a) of the suit above. The plaintiffs are claiming a decree in favour of the first plaintiff or in the alternative, a decree jointly in favour of the 2nd and 3rd plaintiff. The 3rd plaintiff has chosen not to join the 2nd plaintiff in seeking restoration of the appeal. * 10 * N/M-1099.2010 In the absence of the 3rd plaintiff as per the plaint as it stands today, the 2nd plaintiff is not likely to get any decree of specific performance of the agreement of sale in her favour alone. Therefore, as the things stand now pursuing this litigation by original plaintiff no.2 alone is an exercise in futility. 7. Taking overall view of the matter, therefore, in our opinion, it will not be in the interest of justice to condone the delay. The Notice of Motions are therefore disposed off. [D.K. DESHMUKH, J] [SMT. R.P. SONDURBALDOTA, J]