JUDGMENT HIMA KOHLI, J. (Oral) 1. The present suit is listed in Court pursuant to the order dated 03.09.2012. 2. The plaintiff has instituted the present suit against his brother, the defendant, seeking the following reliefs:- (a) Pass a decree of permanent injunction against the defendant or his servant or agent from entering into the business premises of the plaintiff and the business itself which is being run in the name and style of M/s Narula Bakery in the premises No.3/38-A, Nehru Bazar, Paharganj, New Delhi. (b) Restrain the defendant from dispossessing the plaintiff from his business of M/s Narula Bakery being run in the above said premise or any other appropriate order/orders which this Hon’ble Court may deem fit in the wake of the facts and circumstances of the case. (c) That the cost of the litigation be also decreed and awarded in favour of the plaintiff. 3. Alongwith the aforesaid suit, the plaintiff had filed an application for stay under Order XXXIX Rules 1 and 2 CPC, registered as I.A. No.16070/2012. The relief prayed for in the aforesaid application is as below:- “In the above said facts and circumstances it is, therefore, most respectfully prayed that this Hon’ble Court may please grant the temporary injunction to the plaintiff during the pendency of this suit restraining the defendant from interfering in the business of Narula Bakery and from dispossessing the plaintiff from the premises as described Narula Bakery 3/38-A, Nehru Bazar, Paharganj, New Delhi-110055.” 4. When the suit was listed in Court on 03.09.2012, the same was registered and summons were issued to the defendant, returnable before the Joint Registrar on 20.11.2012, for completion of service and pleadings. Further, the suit was directed to be placed before the Court on 04.03.2013, i.e., today, for purposes of framing of issues. Contemporaneously, while issuing notice on the interim application for stay filed by the plaintiff, directions were issued to the parties to maintain status quo with regard to the title and possession of the suit premises and the plaintiff was called upon to comply with the provisions of Order XXXIX Rule 3 CPC within one week. 5. Contemporaneously, while issuing notice on the interim application for stay filed by the plaintiff, directions were issued to the parties to maintain status quo with regard to the title and possession of the suit premises and the plaintiff was called upon to comply with the provisions of Order XXXIX Rule 3 CPC within one week. 5. It is relevant to note that the case set up by the plaintiff in the present suit is that the premises bearing No.3/38-A, Nehru Bazar, Paharganj, New Delhi, was given by MCD on license to the father of the parties, who had expired in the year 1985 and thereafter, the plaintiff had been running a bakery business in the said premises. In para 4 of the plaint, the plaintiff refers to another property opposite the aforesaid premises, being shop No.25, Nehru Bazar, Paharganj, New Delhi, which is a three storeyed building, in the joint names of the wives of the plaintiff and the defendant. It is averred in the aforesaid para that the defendant is running his business from the said shop, in the name and style of “Virender Confectionery” and both, the plaintiff and the defendant have been running their respective businesses separately in separate premises and that there has not been any dispute between the parties in that regard. In para 5 of the plaint, the plaintiff has averred that he has been exclusively running his business of bakery in the name of “Narula Bakery” from the suit premises and has been paying the fees for the health trade license and trade license to the MCD. 6. In para 8 of the plaint, the plaintiff reiterates the fact that he is running the aforesaid business from the suit premises, whereas the defendant has his own separate premises, i.e., shop No.25, Nehru Bazar, Paharganj, New Delhi, from where he is running his business in the name of “Virender Confectionery”. Thereafter, a passing reference is made to a settlement in the family regarding ownership of the properties being in the offing and the plaintiff goes on to state that the same has no bearing insofar as the businesses being run by the parties in their two separate premises are concerned. Thereafter, a passing reference is made to a settlement in the family regarding ownership of the properties being in the offing and the plaintiff goes on to state that the same has no bearing insofar as the businesses being run by the parties in their two separate premises are concerned. In the cause of action para, the plaintiff has averred that the defendant had tried to take over the actual physical possession of the business of the plaintiff and oust him from the suit premises and since his shop is situated opposite the shop of the defendant, he was under a constant threat of dispossession by the defendant, thus compelling him to institute the present suit. 7. It is relevant to note that the documents filed by the plaintiff alongwith the suit include receipts of the license fees of premises No.3/38-A, Nehru Bazar, Paharganj, New Delhi, copies of his income tax returns and a copy of the order passed by the learned ACMM on 24.10.2010, in respect of an offence under Section 7/16 of the Prevention of Food Adulteration Act. However, the plaintiff did not file any document relating to the family settlement with the defendant. 8. After perusing the averments made in the plaint and the documents placed on record and in the light of the submissions made by the counsel for the plaintiff on 03.09.2012, the court deemed it appropriate to direct the parties to maintain status quo with regard to the title and possession of the suit premises, till the next date of hearing, i.e., 4.3.2013. 9. In the month of November 2012, the defendant approached this Court by filing an application under Order XXXIX Rule 4 CPC, registered as I.A. No.20372/2012 seeking vacation of the aforesaid ex-parte ad interim injunction order on the ground that the plaintiff had approached the Court with unclean hands and had withheld material information at the time of instituting the suit. In the month of November 2012, the defendant approached this Court by filing an application under Order XXXIX Rule 4 CPC, registered as I.A. No.20372/2012 seeking vacation of the aforesaid ex-parte ad interim injunction order on the ground that the plaintiff had approached the Court with unclean hands and had withheld material information at the time of instituting the suit. Counsel for the defendant submitted that contrary to the averments made by the plaintiff in the plaint to the effect that he was running his business in the name and style of “Narula Bakery” from the suit premises and that the defendant was carrying on his bakery business from shop No.25, Nehru Bazar, Paharganj, New Delhi, in the name and style of „Virender Confectionery’, on 27.06.2012, i.e., prior to the date of institution of the present suit, an Exchange Agreement had been executed by the plaintiff and the defendant, whereunder the defendant had received exclusive possession of the properties bearing No.3/38-A and 3/38-B, Nehru Bazar, Paharganj, New Delhi, wherefrom he had been carrying on his business in the name and style of „Narula Bakery’ and it was the plaintiff, who had in fact received the exclusive possession of the shop bearing No.25, Nehru Bazar, Paharganj, New Delhi. Counsel for the defendant pointed out that the plaintiff had failed to place on record a copy of the Exchange Agreement dated 27.06.2012, much less mention the same in the body of the plaint. 10. Learned counsel had further submitted that upon the defendant paying a sum of Rs.25 lacs to the plaintiff in terms of the Exchange Agreement, the plaintiff had vacated the suit premises and premises No.3/38-B, Nehru Bazar, Paharganj, New Delhi, and he had handed over possession thereof to the defendant. Pursuant thereto, the parties had proceeded to execute a Confirmation Deed dated 16.09.2012, whereunder the plaintiff had demanded and received an additional sum of Rs.15 lacs from the defendant and both the parties confirmed having executed the earlier Exchange Agreement. It was submitted on behalf of the defendant that the plaintiff had deliberately concealed from the Court all the aforesaid events and the documents executed by the parties and after the ex-parte ad interim injunction order dated 03.09.2012 had been granted in his favour, he had started to threaten the defendant with dispossession, thus compelling him to file I.A. No.20372/2012. 11. 11. Mr.Aneja points out that even after the ex-parte injunction order dated 3.9.2012 was granted by this court, the plaintiff had deliberately failed to apprise the defendant about the said order and served the defendant on an incorrect address of Shop No.25, as mentioned in the memo of parties, knowing very well that the said shop was not in the possession of the defendant, but exclusively in his own possession. 12. It is pertinent to note that when the aforesaid application was listed in Court on 07.11.2012, the plaintiff was duly represented through counsel and an advance copy of the said application had been duly served on him a day in advance on 06.11.2012. However, learned counsel for the plaintiff had sought time to file a reply to the application, which was so granted to her. At the same time, in view of the submission made by the counsel for the defendant, a Local Commissioner was appointed to visit premises No.3/38-A and 3/38-B, Nehru Bazar, Paharganj, New Delhi, and shop No.25, Nehru Bazar, Paharganj, New Delhi and file a status report as regards the possession/occupation of the said shops. The fees of the Local Commissioner was fixed at Rs.50,000/- apart from actual expenses and it was made clear that in case the report of the Local Commissioner would bear out the submissions made by the counsel for the defendant, then the fees and expenses incurred by him, would be reimbursed by the plaintiff. 13. Pursuant to the aforesaid order, the Local Commissioner executed the commission and submitted a report dated 22.11.2012 stating inter alia that the defendant was in possession of shops No. 3/38-A and 3/38-B, Nehru Bazar, Paharganj, New Delhi, and the plaintiff was in possession of shop No.25, Nehru Bazar, Paharganj, New Delhi, comprising of three floors. The report mentions that the plaintiff was present at the spot when the commission was executed and he had stated that he was in exclusive possession of shop No.25, Nehru Bazar, Paharganj, New Delhi, on the basis of some compromise arrived at with the defendant but claimed that he did not remember the exact date when the compromise was arrived at, except for stating that the same had taken place in the first week of July, 2012 as well as in September, 2012. 14. 14. Today, learned counsel for the plaintiff starts by stating that he may be permitted to withdraw the present suit in view of the settlement arrived at with the defendant. The said request is, however, vehemently opposed by the counsel for the defendant, who submits that the plaintiff ought to be visited with heavy costs for having mislead the Court and for withholding material information at the time of instituting the present suit. 15. Counsel for the plaintiff denies the aforesaid submission and states that the present suit instituted by the plaintiff is only in respect of the business being run in the name and style of “Narula Bakery” and not in respect of the premises that have been mentioned in the plaint. When confronted with the documents filed by the defendant under index dated 31.10.2012, including the Exchange Agreement dated 27.06.2012 and the Confirmation Deed dated 16.09.2012, learned counsel for the plaintiff does not deny the execution of the aforesaid documents but seeks to explain that the Exchange Agreement had not been acted upon at the time of institution of the suit and therefore, the plaintiff did not deem it necessary to advert to the said document or even file a copy thereof at the time of instituting the suit. He further states that in terms of the Exchange Agreement, the defendant was required to pay a sum of Rs.25 lacs to the plaintiff, whereas till the date of institution of the suit, the plaintiff had received only a sum of Rs.23.5 lacs and as a balance sum of Rs.1.5 lacs had remained outstanding, it could not be presumed that the Exchange Agreement had been acted upon. 16. It may be noted that under the aforesaid Exchange Agreement, the plaintiff and the defendant had agreed to exchange their ownership in the suit premises, i.e., premises No.3/38, Nehru Bazar, Paharganj, New Delhi and shop No.25, Nehru Bazar, Paharganj, New Delhi, so that the plaintiff would become the owner of shop No.25, Nehru Bazar, Paharganj, New Delhi, and the defendant would become the owner of property No.3/38-A, Nehru Bazar, Paharganj, New Delhi. On a query posed to learned counsel as to why the plaintiff did not approach the Court immediately after executing the Confirmation Deed dated 16.09.2012, which was only a couple of weeks after summons had been issued in the suit, counsel for the plaintiff replies that he thought it fit to await the actual date of hearing fixed in the matter before the Court for making such a submission. 17. The Court has heard the counsels for the parties and after considering their submissions, is of the considered opinion that undoubtedly, the plaintiff has tried to mislead the Court, withheld material information and has tried to abuse the process of the Court. The aforesaid observations have been made in view of the fact that the averments that have been made by the plaintiff in para 8 of the plaint with regard to a settlement that was arrived at with the defendant are found to be extremely evasive, if not deliberately ambiguous. The said observation is also made for the reason that at the time of institution of the present suit, i.e., on 31.08.2012, the plaintiff was well aware of the fact that he had executed an Exchange Agreement with the defendant on 27.06.2012 and in terms thereof, he had admittedly received a sum of Rs.5 lacs from the defendant on 29.06.2012, a further sum of Rs.5 lacs on 03.07.2012 and a third installment of a sum of Rs.5 lacs on 05.07.2012. Apart from the aforesaid amounts, at the time of execution of the Exchange Agreement, i.e., on 27.06.2012, out of the total sale consideration of Rs.25 lacs, the plaintiff had received a sum of Rs.10 lacs from the defendant as earnest money. Further thereto, a Confirmation Deed dated 16.09.2012 had been executed where under the plaintiff had received an additional sum of Rs.15 lacs taking the total sale consideration to a substantial amount of Rs.40 lacs. Thus, it was incumbent on the plaintiff to have specifically mentioned having received the aforesaid amounts from the defendant under the Exchange Agreement dated 27.06.2012. 18. Assuming that the plaintiff did not make any averment with regard to the aforesaid sequence of events in the body of the plaint, the least that was expected of him was to have placed on record the Exchange Agreement that had been executed between the parties. 18. Assuming that the plaintiff did not make any averment with regard to the aforesaid sequence of events in the body of the plaint, the least that was expected of him was to have placed on record the Exchange Agreement that had been executed between the parties. While filing a series of documents, which are as many as seventeen in number, the plaintiff has deliberately withheld the aforesaid material documents from the Court. Further, if the plaintiff claims to be bonafide, then he should have demonstrated his bonafides by approaching his counsel immediately upon execution of the Confirmation Deed dated 16.09.2012 and ought to have requested him to withdraw the suit. However, no such steps were taken by him till as late as today. 19. In the meantime, the defendant had approached the Court on 07.11.2012 by filing an application for vacation of the ex-parte interim order and it was only then that notice was issued to the plaintiff. On the said date, instead of admitting as true, the averments made by the defendant in the said application and the documents filed by him including the Exchange Agreement and the Confirmation Deed, and accepting the aforesaid sequence of events, counsel for the plaintiff, who had appeared on advance copy, sought time to file a reply to the application. Incidentally, the said reply has yet to see the light of the day. 20. Even if the counsel for the plaintiff was unaware of the sequence of events that had transpired between 03.09.2012 and 07.11.2012, nothing precluded him from calling upon his client to give a clarification in respect of the events mentioned by the defendant in his application. If the intention of the plaintiff was truly bonafide, he ought to have approached the Court in the first instance and apprised it of the aforesaid events and sought leave to withdraw the suit. Instead, the plaintiff found it convenient to remain silent and resultantly, the interim order continued to operate to the detriment of the defendant. Later on, when the Local Commissioner proceeded to execute the commission, the correct status as to the possession of the suit premises and the shop No.25, Nehru Bazar, Paharganj, New Delhi emerged. Pertinently, even after the commission was executed at the end of November, 2011, the plaintiff did not make any effort to approach the Court for withdrawal of the present suit. Pertinently, even after the commission was executed at the end of November, 2011, the plaintiff did not make any effort to approach the Court for withdrawal of the present suit. In such circumstances, the Court is simply unconvinced by the submissions made by the counsel for the plaintiff today that he had thought it would be appropriate to seek withdrawal of the suit on the date fixed, as nothing precluded the plaintiff from filing an application for seeking withdrawal of the suit much earlier, particularly after the parties had acted upon the Exchange Agreement dated 27.06.2012 and thereafter, the plaintiff had received a substantial amount from the defendant and then the parties had executed the Confirmation Deed within two weeks from the date of issuance of summons in the suit. 21. In view of the aforesaid facts and circumstances and the conduct of the plaintiff, his request for withdrawal of the suit is allowed subject to payment of costs of Rs.1 lac to the defendant within four weeks. Besides the above, the plaintiff shall also reimburse the defendant for the fees paid to the Local Commissioner and the out of pocket expenses incurred by him, which are to the tune of Rs.55,000/-. The said amount shall also be paid within the same timeline. The suit is dismissed alongwith the pending applications. 22. At this stage, counsel for the defendant points out that the court fees paid by the plaintiff is deficient for the reason that the amendment to the Court Fees Act had been given effect to w.e.f. 01.08.2012 and the present suit had been instituted by the plaintiff on 31.08.2012 and on the said date, he was required to pay ad valorem court fee calculated @ 4% on the sum of Rs.21 lacs, as mentioned in para 13 of the plaint. However, the plaintiff has paid court fees of Rs.22,850/- as against the court fees of Rs.84,000/- actually payable by him post amendment to the Act. 23. In view of the aforesaid position, the plaintiff is further directed to make good the deficiency in the court fees as pointed out above within two weeks. In case the plaintiff fails to make good the deficiency in the court fees, then the same shall be treated as arrears of the land revenue and recovered from him in accordance with law. 24. In case the plaintiff fails to make good the deficiency in the court fees, then the same shall be treated as arrears of the land revenue and recovered from him in accordance with law. 24. List before the Joint Registrar on 9th April, 2013 for compliance of this order. 25. The date fixed before the Joint Registrar, i.e., 9th September, 2013 stands cancelled.