A party applying for special leave to appeal to the Supreme Court must disclose all material facts and cannot withhold information that would have a bearing on the exercise of the Court's discretionary powers.

Judgment

SHAH, J. : (for himself and A. K. Sarkar J.) For reasons which we will presently set out, special leave to appeal against the judgment of the High Court of Bombay granted by this Court must be vacated because it had been procured by the appellant without disclosing all the material facts.

2. Rajabhai Munshi who will hereinafter be referred to as the defendant is since 1935 a tenant of Vasudev Mody - hereinafter called the plaintiff - in respect of a piece of land situate in the town of Ahmedabad. The rent of the land as originally stipulated was Rs. 411/- per annum, and it was by mutual agreement enhanced to Rs. 851/- per annum in 1948. The plaintiff filed suit No. 2014 of 1952 against the defendant in the Court of Small Causes exercising jurisdiction under S. 28 of the Bombay Rents and Lodging House Rates (Control) Act, 1947 (Act 57 of 1947) for an order in ejectment against the defendant on the plea amongst others that the latter had made default in payment of rent due by him. The defendant contended inter alia that the rent stipulated was in excess of the standard rent payable by him. The Trial Court assessed the standard rent payable by the defendant at Rs. 446/- per annum and holding that the defendant had not made default in paying rent, dismissed the plaintiff s suit: Against that decree the plaintiff preferred Appeal No. 450 of 1953 to the District Court at Ahmedabad. On October 1, 1954 the defendant deposited in the District Court Rs. 400/- to the credit of the plaintiff. The appeal instituted by the plaintiff was not prosecuted, and the amount of Rs. 400/- deposited to the credit of the plaintiff remained deposited in Court.

3. The plaintiff commenced another action (Suit No. 3481 of 1955) against the defendant on the plea that the defendant had committed fresh defaults in payment of rent. The defendant deposited in Court from time to time between November 22, 1955 and January 16, 1957 Rs. 2,126/8/- towards rent due by him and costs of the suit. The learned Trial Judge by his order dated February 26, 1957 held that taking into account Rs. 400/- lying to the credit of the plaintiff in Appeal No. 450 of 1953 the defendant had deposited in Court Rs. 2,526/8/-, and that amount was sufficient to satisfy the arrears of rent due by the defendant and also the costs of the suit, and therefore no decree in ejectment could, in view of S. 12(3)(b) of Bombay Act 57 of 1947 be granted.

4. In appeal the Extra Assistant Judge, Ahmedabad, reversed the decree of the Trial Court. In his view the defendant had failed to deposit the full amount of rent due and costs of the suit as required by S. 12 (3) (b) and therefore a decree in ejectment must issue against the defendant. In making up the account of the rent due by the defendant, the learned Judge excluded the amount of Rs. 400/- deposited in Appeal No. 450 of 1953 on October 1, 1954, because the defendant had withdrawn that amount before the suit was disposed of by the Trial Court. Against the decree in ejectment the defendant invoked the revisional jurisdiction of the High Court of Judicature at Bombay. Before the High Court the advocate for the defendant contended that there was no evidence in support of the finding of the appellate Court that the amount of Rs. 400/- deposited by the defendant in Appeal No. 450 of 1953 stood withdrawn by the defendant. The High Court upheld the contention but proceeded to dismiss the petition filed by the defendant because the case did not fall strictly within S. 12(3)(b) of Bombay Act 57 of 1947 and the Court had jurisdiction, having regard to the circumstances and the conduct of the tenant, to refuse relief to him, and that the record showed that the defendant had by his conduct disentitled himself to discretionary relief. Against the order passed by the High Court, a petition for special leave to appeal to this Court was granted.

5. Section 12(1) of Act 57 of 1947 provides :

"A landlord shall not be entitled to the recovery of possession o