Dr. Mukundakam Sharma, J.

1. The present appeals are directed against the judgment and order passed by the learned Additional District Judge, Delhi whereby the suit filed by the appellant herein was dismissed on the ground that the appellants/plaintiffs have played fraud on the Court by withholding material informations.

2. The appellants as plaintiffs filed a suit for recovery of possession of immovable property under the provisions of Sections 5 and 6 of the Specific Relief Act and also for decree of recovery of mesne profits and for a decree of permanent injunction in respect of premises described as 8/289, Sunder Vihar, Paschim Vihar, New Delhi. In the said suit following reliefs were sought for:

(a) a decree jointly or severally may kindly be passed in favour of the plaintiffs and against the defendants directing defendants jointly or severally to vacate the suit property bearing municipal No. 8/289, Sunder Vihar, Paschim Vihar, New Delhi - 110 087, measuring 267 sq. yards of land and hand over vacant peaceful possession to the plaintiffs.

(b) in an alternate, plaintiffs may be restored back possession of the suit property bearing municipal No. 8/289, Sunder Vihar, Paschim Vihar, New Delhi- 110 087, measuring 267 sq. yards, in terms of Section 6 of the Specific Relief Act and the defendants may kindly be directed jointly and severally to hand over vacant peaceful possession of the suit property to the plaintiffs.

(c) alternatively, in the event of any controversy, a decree of specific performance may kindly be passed against the defendants directing the defendants to perform the sale in terms of documents dated 12.5.2004 for which the sale consideration has already been paid by delivering the possession of the suit property to the plaintiffs.

(d) mesne profits as on the date of institution of the suit amounting to Rs. 15,000/- may kindly be awarded to the plaintiffs and against the defendants.

(e) pendente lite and future mesne profits @ Rs. 15000/- for the unauthorized use and occupation of the suit may also awarded to the plaintiffs and against the defendants, jointly or severally as the case may be.

(f) a decree of permanent injunction may be passed restraining the defendants, their agents, representatives, family members, attorneys, from selling, alienating or parting with possession of either the whole or part of the suit property bearing municipal No. 8/289, Sunder Vihar, Paschim Vihar, New Delhi-110 087, measuring 267 sq. yards, to any third party including sisters of defendant No. 1.

3. The aforesaid reliefs are sought for on the basis of the cause of action as stated in the plaint as follows:

22. That the cause of action has arisen in favour of the plaintiff to bring the present suit against the defendants when the defendants sold, transferred and conveyed the suit property on 12.5.2004 and when the sale consideration was received and delivery of possession of the suit property was effected and delivered to the plaintiffs. It further arose when various sale documents as mentioned in the plaint were executed by the defendants to conclude the sale on 12.5.2004. It arose when defendant No. 1 sought permission to store his stuff in one of the rooms in the suit premises with an assurance to remove the same within a short time. The cause of action has arisen when defendant No. 1 sought further time to remove the stuff from the said room. The cause of action has finally arose when the plaintiff No. 1 visited the suit premises on 24.7.2004 and found that his locks were removed and the entire property was found to be occupied by defendant No. 1 and defendant No. 2 refused to look into the matter and colluded with defendant No. 1 on the said issue. It arose when defendant Nos. 1 and 2 committed act of trespass in the suit property after selling the suit premises to the plaintiff. It lastly arose when on 3.8.2004, defendant No. 1 disclosed many information about the suit property including pendency of Court case initiated by his sisters seeking partition as well as dismissal of the probate petition filed by defendant No. 1. The cause of action is a continuing one inasmuch as defendants are not vacating the suit property on one pretext or the other and instead of vacating the property, defendant No. 1 filed a civil suit being Civil Suit No. 376 of 2004 in collusion with his sisters. Hence this suit.

4. Besides, the present suit was filed also under Section 6 of the Specific Relief Act seeking to recover possession on the ground that the respondents were trespasser without their consent of the immovable property. Sub-section (3) of Section 6 of the Specific Relief Act clearly stipulates that no appeal would lie from any order or decree passed in any suit instituted under the aforesaid section nor any review of any such order or decree would be allowed.

5. The aforesaid provision came to be considered by the Supreme Court in the case of Sanjay Kumar Pandey and Ors. v. Gulbahar Sheikh and Ors., reported as III (2004) SLT 749=II (2004) CLT 298 (SC)=(2004) 4 SCC 664 [LQ/SC/2004/465] . In the said decision it was laid down by the Supreme Court that the remedy of a person unsuccessful in a suit under Section 6 of theis to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the. It was also held in the said decision that the remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of theexcept on a case for interference being made out within the wellsettled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.

6. In the said suit written statement was filed by the respondents/defendants along with an application under Order 7 Rule 11, CPC seeking for rejection of the relief. The learned Trial Court took up the application filed by the appellants under Order 39 Rules 1 and 2, CPC seeking for an interim injunction and also the application under Order 7 Rule 11, CPC filed by the respondent No. 1 for dismissal of the plaint.

7. The case as pleaded in the plaint and as disclosed from the aforesaid cause of action stated in paragraph 22 of the plaint seeking relief of possession under Sections 5 and 6 of the Specific Relief Act is that the appellant No. 1, who is the husband of appellant No. 2, is the bona fide purchaser of the property bearing municipal No. 8/289, Sunder Vihar, Paschim Vihar, New Delhi - 110 087, measuring 267 sq. yds. in the name of appellant No. 2. It was also alleged in the plaint that the respondent No. 1 executed a General Power of Attorney in favour of the appellant No. 2 on 12th May, 2004 pursuant to which respondent No. 2 executed sale documents including registered Power of Attorney dated 12th May, 2004 and 16th June, 2004 whereas agreement to sell, receipt, affidavit, etc. were executed in favour of appellant No. 2 towards the sale of the suit property for a sum of Rs. 5,00,000/- which was paidvide cheque No. 822282 dated 12th May, 2004. It was also alleged that vacant possession of the suit property had been delivered to the appellants on 12th May, 2004 itself and that the respondent No. 1 was allowed to keep some goods in one room for short time and that on 24th July, 2004 appellant No. 1 visited the suit property and discovered that respondent Nos. 1 and 2 in collusion and connivance had trespassed into suit property and dispossessed the appellants and have cheated them.

8. In the aforesaid application filed by respondents No. 1 under Order VII Rule 11, CPC it was, inter alia, stated that there is no cause of action against him and he never executed any documents in favour of the appellants and that the entire transaction, if any, was entered into between the respondent No. 2 and the appellants. It was also stated by him that the respondent No. 2 had always been in possession of the suit property and never handed over the same to the appellants. It was also stated by him that he had struck a deal and accordingly executed an agreement to sell and a General Power of Attorney dated 12th May, 2004 in favour of respondent No. 2, which was subsequently cancelledvide cancellation deed dated 19th August, 2004 duly registered with the Sub-Registrar on 23rd August, 2004. The respondent No. 2 filed a written statement in the suit resisting the said suit both on preliminary grounds as well as on merits. He has stated in the written statement that appellant No. 2 entered into a collaboration agreement dated 18th May, 2004 with him for construction of property in dispute and that no title was ever transferred in his favour. It was also alleged that respondent No. 1 and the respondent No. 2 entered into a commercial transaction whereby the respondent No. 1 had agreed to sell the suit property to him on 12th May, 2004 consequent upon which he executed a General Power of Attorney dated 12th May, 2004 in favour of appellant No. 1 and agreement to sell, but the said General Power of Attorney dated 12th May, 2004 was subsequently cancelled by respondent No. 1, and that the respondent No. 1 always remained in physical possession of the property. He also stated that respondent No. 1 had already handed over possession to respondent Nos. 3 to 5 on 14th September, 2004 and that possession of the suit property was never handed over to the appellants at any point of time and that the agreement to sell dated 12th May, 2004 relief upon by the respondent No. 1 being unregistered is inadmissible.

9. During the pendency of the aforesaid suit, the respondent Nos. 3 to 5 were also impleaded in the suit as defendant Nos. 3 to 5 on the basis of the application filed under Order 1 Rule 10, CPC. When the aforesaid two applications, namely, under Order 39 Rules 1 and 2, CPC and under Order 7 Rule 11, Code of Civil Procedure were listed for hearing, the preliminary objections raised by the remaining respondents were also considered. The case of the appellants as plaintiffs as stated in the plaint has been dealt with hereinbefore. The clear case made out by them in the plaint is that the suit property was purchased by them on 12th May, 2004 upon execution of various documents by respondent No. 2 in their favour with a specific averment that even the sale consideration of Rs.5,00,000/- was paid to respondent No. 1 by means of a cheque bearing No. 822282 dated 12th May, 2004. A collaboration agreement dated 18th May, 2004 is also on record, which is produced by the respondent No. 2. The signature of the appellant No. 1 appearing on the said document is not disputed. He had stated in his statement recorded in the Court on 28th September, 2004 that he had seen the collaboration agreement dated 18th May, 2004 running into four pages and that the signatures at point A thereon appear to be his. The said statement being very relevant is extracted below:

I have seen collaboration agreement dated 18.5.2004, running into four pages and the signatures at point A thereon appear to be mine. I am not aware as to how defendant No. 2 obtained my signature thereon. It is for him to explain.

10. On the basis of the aforesaid statement recorded by the Court on 28th September, 2004, the said document was marked Ex. C-1 for the purpose of identification. The signature of the appellant No. 1 appearing on the said document is not disputed. The appellant No. 1 also got an opportunity to explain the circumstances under which the aforesaid document came to be executed by him. He had the opportunity to explain the circumstances as to how his signature appears in that agreement. If the collaboration agreement was not meant to be executed he could have explained as to how he came to put his signature on the said document. Instead of availing the aforesaid opportunity to explain the circumstances under which the aforesaid document was executed, he shirked his responsibility and obligation by stating that it is for the respondent No. 2 to explain as to how the signature of the appellant No. 1 was obtained in the said document by the respondent No. 2. Interestingly, the appellant No. 1 has not denied that he did not intend to enter into a collaboration agreement with the respondent No. 2 in respect of the suit property. He rather admits his signatures in the document. Therefore, execution of the collaboration agreement by the appellant No. 1 cannot be disputed and impliedly stands proved on application of the provisions of Section 58 of Evidence Act. The said document, a copy of which is also placed on record as Annexure-J requires some consideration particularly with reference to the terms and conditions incorporated therein. Relevant part of the same is extracted below:

The expression of first and second parties wherever occur in this collaboration agreement shall mean and include their legal heirs, successors, nominees, assigns, legal representative and administrators.

Whereas the first party is/are the absolute owner/s of property bearing No. 8/289, Built on land measuring 267 sq. yds. situated at Sunder Vihar (Paschim Vihar), New Delhi hereinafter called the property.

And whereas the first party is the sole and absolute owner/s of the said property and has full powers to deal the said property to any person(s).

xxx xxx xxx xxx

xxx xxx xxx xxx

1. That the second party shall raise construction on the said PROPERTY BEARING NO. 8/289, BUILT ON LAND MEASURING 267 SQ. YDS., SITUATED AT SUNDER VIHAR, (PASCHIM VIHAR), NEW DELHI with his own funds and will raise Three Storeys i.e., ground floor, first floor and second floor on the said property within 10 months from the date of approved sanctioned plan along with two months grace period.

2. That the second party has paid a sum of Rs. 5,00,000/- (Rupees five lac only)vide cheque No. 22282, dated 12.5.2004, drawn on Punjab National Bank, Rajouri Garden, New Delhi to the first party as non refundable security.

xxx xxx xxx xxx

xxx xxx xxx xxx

9. That this agreement is solely for the purpose of construction on the said property, the First Party (OWNER/s) shall allow the use of the premises to the second party (BUILDER/s) immediately on the signing of this Agreement and the second party shall be entitled to demolish the structures already existing and to commence construction of the building as per this agreement.

10. That the second party shall be entitled to deal with the proposed Ground Floor, and First Floor without roof rights of the building in any manner during the course of constructions and or after completion of the construction.

xxx xxx xxx xxx

xxx xxx xxx xxx

13. That the 1st party (owner/s) shall also sign, execute and get register a GPA in favour of the 2nd party (builder) or its nominee/s regarding ground floor and 1st floor without roof rights.

xxx xxx xxx xxx

xxx xxx xxx xxx

15. That whenever any disputes or differences arise between the parties, the same shall be got decided by an arbitrator under Arbitration Act, whose award will be binding upon both the parties and could be made by the rule of the Court, with the mutual consent of the parties, has been appointed as arbitrator.

xxx xxx xxx xxx

xxx xxx xxx xxx

17. That it is agreed and understand between the parties that this agreement shall be binding upon all concerned and the members of first party (owner/s) have also signed this agreement in token of their acceptance of the terms thereof.

11. A bare perusal of some of the aforesaid terms and conditions would indicate that on consideration of the execution of the aforesaid collaboration agreement appellant No. 1 has paid a sum of Rs. 5,00,000/-vide cheque No. 822282 dated 12th May, 2004 to the respondent No. 2 as non-refundable security. In the plaint it is stated that upon execution of agreement to sell, power of attorney and Will, the entire sale consideration of Rs. 5,00,000/- was paid by the appellant No. 1 to the respondent No. 2 by the same cheque No. 822282 dated 12th May, 2004. It, therefore, cannot be denied that collaboration agreement was executed by the appellant No. 1 with the respondent No. 2 whereby the appellant No. 1 undertook to develop the said property by raising three storeys, namely, ground floor, first floor and the second floor with a clear stipulation that the respondent No. 2 would sign, execute and register a general power of attorney in favour of the appellant No. 1 / builder or its nominees regarding ground floor and first floor without roof rights. It is thus established from the aforesaid stipulations that some of the terms incorporated therein nullify the pleadings in the plaint. The recitation made in the collaboration agreement is very material and relevant for the purpose of deciding the suit. Act of suppression of the said material and relevant facts and withholding of the said collaboration agreement by the appellants in the plaint was definitely for ulterior motive. There is not even a whisper in the plaint regarding the said vital document. The appellants withheld vital documents from consideration of the Court deliberately. It is in this context that the trial Court has held that the appellants have played fraud on the Court.

12. In this context we may appropriately refer to the several decisions of the Supreme Court. In S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and others, reported as II (2004) SLT 735=II (2004) CLT 78 (SC)=(2004) 7 SCC 166 [LQ/SC/2004/371] the Supreme Court, in paragraph 13, has held that as a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. It was also held that the aforesaid rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. The Court held that once it is found that the suppressed fact is material one in the sense that had it not been suppressed it would have had an effect on the merits of the case, in that event the aforesaid suit could be dismissed. In S.P. Chengalvaraya Naidu v. Jagannath, reported as II (1993) BC 546 (SC) [LQ/SC/1993/933] =AIR 1994 SC 853 [LQ/SC/1993/933] also the Supreme Court dealt with the case of suppression of material facts by a party in a civil proceeding. It was held that if there is any suppression of material fact and such relevant material facts are not disclosed in that event the proceeding is liable to be dismissed. Paragraph 8 of the said judgment being relevant, we are tempted to quote the relevant portion thereof:

8. ........A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. ............ Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the Court. We do not agree with the observations of the High Court that the appellant-defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.

13. The appellants have come to the Court with unclean hands. There is also a Division Bench judgment of this Court in Satish Khosla v. M/s. Eli Lilly Ranbaxy Ltd. & Another, reported in 71 (1998) DLT 1 (DB)=I (1998) CLT 1 [LQ/SC/1998/829 ;] =1998 (I) AD (Delhi) 927 laying down similar law. We may also refer to the decision of the Supreme Court in Commissioner of Customs, Kandla v. M/s. Essar Oil Ltd. and Ors., reported as VII (2004) SLT 273=JT 2004 (9) SC 12 [LQ/SC/2004/1180] , wherein the Supreme Court has held that a fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It was also held that an act of fraud on Court is always viewed seriously. The Supreme Court went on to hold that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.

14. The aforesaid position clearly establishes that there was a deal struck between the appellant No. 1 and the respondent No. 2 that they would reconstruct the property after demolishing the existing structure of the ground floor and the ownership of the property was put in the manner as stated in collaboration agreement signed between the parties on 18th May, 2004. In terms of the aforesaid collaboration agreement, appellant No. 1 was required to pay a non-refundable security of Rs. 5,00,000/- to the respondent No. 2. In that view of the matter it is established that the appellant No. 1 obtained a security for the deposit in the form of an agreement in favour of him by the respondent No. 2 in lieu of making a payment of Rs. 5,00,000/- by way of cheque. The aforesaid agreement to sell, etc. were signed by the respondents in view of receipt of Rs. 5,00,000/-. Definitely, therefore, on signing of the collaboration agreement after six days thereafter the earlier documents of agreement to sell, etc. got substituted by the new agreement, which is entered into and, therefore, in our considered opinion the principle of novation as laid down under the provisions of Section 62 of the Contract Act would be applicable.

15. In this connection, we may rely upon a decision of this Court in M/s. Dadri Cement Co. and Anr. v. M/s. Bird and Co. Pvt. Ltd., reported as AIR 1974 Delhi 223. In the said decision, a Division Bench of this Court has held that the parties by entering into the new arrangement intended to substitute the original contract of sale by substituted arrangement consisting of the agreement, the deed of guarantee, the deed of pledge and the irrevocable power of attorney. It was also held that the aforesaid substitution operated to bring about novation of the original contract and that the original contract of sale became inoperative and unenforceable.

16. In the present case also the original agreement to sell, the power of attorney and the Will, all the aforesaid agreements which were executed on 12th May, 2005 appear to have been substituted by the subsequent contract of collaboration. Consequently, the original agreement to sell etc. became inoperative and unenforceable with the execution of the subsequent collaboration agreement on the basis of the principles of law laid down by the Division Bench of this Court in M/s. Dadri Cement Co. and Anr.v. M/s. Bird and Co. Pvt. Ltd. (supra).

17. There are umpteen number of cases supporting the aforesaid principle of law laid down by the Division Bench of this Court. We are not required to refer to all of them except for giving citation of the same, which, in our considered opinion, are applicable to the facts and circumstances of this case.

18. Taking all the facts into consideration we are of the considered opinion that the learned trial Court did not commit any mistake or error in holding that the appellants by filing the suit and by suppressing material and relevant facts and keeping the said relevant facts out of consideration of the Court tried to play a fraud on the Court. We also hold that the appellants came to the Court with unclean hands and suppressed material and relevant facts which were relevant and necessary for effective determination of all the issues in the suit and in view of the aforesaid suppression of material facts the appellants disentitled themselves to pursue the suit. We find no error in the judgment and order passed by the learned trial Court. We find no merit in this appeal and the same is dismissed.