Non-disclosure of proceedings before the Division Bench amounted to suppression of material facts, leading to the dismissal of the writ petition and application.

Manmohan, J.

1. Present writ petition has been filed with the following prayers:-

“(i) To issue a writ in the nature of prohibition restraining the respondents, its agents, employees or servants from demolishing the toe wall and green areas in front of flat no. B-142, Mount Kailash, DDA (SFS) Colony, New Delhi pursuant to order dt. 21-10-10;

(ii) To restrain the respondents from uprooting the existing plants as planted in green area as per the development plan;

(iii) to award cost of the present petition in favour of the petitioner and against the respondent; and

(iv) to pass any other or further order(s), which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case, in favour of the petitioner and against the respondent.”

2. Along with the writ petition, a copy of the order dated 14th March, 2001 passed by learned Single Judge in W.P.(C) 1088/1997 was annexed.

3. Today, learned counsel for respondents have raised a preliminary objection to the maintainability of the present writ petition on the ground that petitioners have suppressed material and relevant facts. They submit that present petition amounts to re-litigation and has been filed in a bid to circumvent binding orders passed inter se between the parties by a Division Bench of this Court. In this connection, they have drawn this Court’s attention to various orders of the Division Bench, in particular, the order dated 31st January, 2007, which reads as under:-

“WP(C) 1088/1997 & CMs 15529-30/2006

In terms of our last order, Mr. Sidharth Mridul, Court Commissioner, has inspected the concerned area from where the writ petitioner was to remove side walls and cross walls. On inspection, he found that the said walls have been removed but a skirting wall of 6” height still exists in the said area. According to the counsel appearing for the MCD, the said skirting wall cannot be retained as it was a flat path earlier. We direct the petitioner to remove the said skirting wall also so as to bring the area to the same condition as it was existing earlier.

Renotify on 28th February, 2007.”

4. Learned counsel for petitioners, however, states that there has been no suppression of any material fact. He points out that petitioner had filed an application for clarification before the Division Bench and had even sought direction to MCD not to demolish the toe-walls, green patches and protective areas. He states that upon filing of such an application, the Division Bench had ultimately disposed of petitioner’s writ petition vide order dated 12th October, 2007, which is reproduced hereinbelow:-

“WP(C) 1088/1997 & CMs 15529-30/2006

The grievances raised in the accompanying applications already stand redressed, except the exclusion of the front wall. If the residents are facing certain problems because of the Delhi Public School in their area, it would be open for them to make a representation to the Municipal Corporation of Delhi and we are hopeful that the Municipal Corporation of Delhi and we are hopeful that the Municipal Corporation shall try to find out an amicable solution to this problem. In case the grievance of the residents will persists, it would be open for them to approach the Court again. With these observations, the writ petition as well as the applications stand disposed of.”

5. Learned counsel for petitioners also relies upon a judgment of Supreme Court in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, (2004) 7 SCC 166. The relevant portion of the said judgment reads as under:-

“13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material