1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.95 OF 2008 IN SUIT NO.25 OF 2008 Harbhagwan P. Kandhari ..Plaintiff. Vs. Smt. Rewoobai alias Bahmabai Pandharinath Dorge and others ..Defendants. .... Mr. Rajesh Kachare i/b M/s. A. Bharat & Co. for the Plaintiff. Mr. T.N. Subramanian, Senior Advocate i/b Mr. Ashok G. Purohit for the Defendants. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th February, 2008. P.C. : An ad interim order was passed by this Court on 16th January, 2008 in a Notice of Motion that was taken out for interlocutory relief in a suit for specific performance. The order of this Court records the statement of Counsel appearing for the Plaintiff to the effect that though service was attempted on the Defendants, the premises were found to be closed on both the occasions. An affidavit of service dated 16th January, 2008 was 2 filed of the Plaintiff stating that on 14th and 15th January, 2008 service upon the Defendants was attempted at Flat No.6, Ankur Apartment, Vile Parle (East), Mumbai but the premises were found to be closed on both the occasions. The facts which have now been placed on the record before the Court show a material suppression of facts from the Court. The Court would be constrained to take a serious note of the manner in which an application for ad interim relief was made before the Court without disclosing all the relevant facts. Consequently, it would be the duty of the Court to remedy the situation which has arisen on account of the total abuse of the process of the Court on the part of the Plaintiff. 2. The suit in the present case is for specific performance of an agreement dated 19th February, 1987. The Defendants have filed an affidavit in reply to which the relevant correspondence between the parties has been annexed. At Exhibit 2 to the reply is a letter dated 25th November, 1998 addressed to the Plaintiff by which the agreement is terminated and the monies paid by the 3 Plaintiff were purported to be forfeited. There cannot be any dispute about the service of the letter of termination because the Plaintiff's advocates replied to the notice of termination on 2nd February, 1999. Thereafter on 29th January, 2001 the Defendants' advocate reiterated that the agreement was validly terminated and the amounts paid by the Plaintiff were forfeited. This letter was replied to by the advocate for the Plaintiff on 28th March, 2002. The suit has been instituted on 18th December, 2007 well over nine years after the agreement was terminated on 25th November, 1998. 3. The Court must take a serious note of the fact that all the aforesaid correspondence has been suppressed from the Plaint. It needs no great emphasis to note that a party which seeks relief before the Court must make a full and candid disclosure of all the relevant facts. That has evidently not been done and facts which have been within the knowledge of the Plaintiff have been withheld from the pleadings. Apart from the letter of termination, at Exhibit K to the Plaint is a letter dated 18th June, 2007 addressed to the tenants. This letter was duly replied to on 25th June, 2007. But 4 even that reply, which is annexed as Exhibit 7 to the reply has not been annexed to the Plaint. 4. The statement which was made in the affidavit in service was to the effect that the premises at Flat No.6 of Ankur Apartment constituted the only address of the Defendants available to the Plaintiff. This again is not a truthful disclosure of facts. The Defendants have annexed at Exhibit 8 a copy of the caveat which was lodged as far back as on 25th June, 2007 which contained a reference to the correct address. Again, this fact was not brought to the attention of the Court. 5. The narration of facts herein above would make it evidently clear that the Plaintiff's conduct is an abuse of the process of the Court. The basis on which the Court was persuaded to pass an ad interim ex parte order is factually without foundation since a solemn statement was made before the Court that despite two attempts the residential premises were found to be closed. Even on merits, the Plaint does not contain a reference 5 to the factum of termination which had taken place in 1998 and to the fact that the suit was instituted over nine years thereafter. In such a case, it is the duty of the Court to remedy the situation by vacating the ad interim order that was passed on 16th January, 2008. The Plaintiff by his conduct has clearly disentitled himself to the grant of any equitable relief in terms of an order of injunction. A fit and proper case is therefore made out where the Motion itself should be dismissed on account of the unfair conduct of the Plaintiff. The ad interim order dated 16th January, 2008 is accordingly recalled and the Notice of Motion (Notice of Motion 95 of 2008) shall stand dismissed.