Noorali Babul Thanewala v K.M.M. Shetty & Ors
BY: LEXPEEPS
ON: AUGUST
25, 2022
CASE NUMBER
Civil
Misc. Petn. (Civil) No. 13066 of 1989 in Civil Appeal No. 2628 of 1980
EQUIVALENT
CITATIONS
1990
AIR 464, 1989 SCR Supl. (2) 561, 1990 SCC (1) 259, JT 1989 (4) 573, 1989 SCALE
(2)1426
BENCH
Sabyasachi
Mukharji, V. Ramaswami, JJ
DECIDED
ON
20th December 1989
RELEVANT
ACT
Contempt
of Courts Act, 1971
OVERVIEW
The
petitioner, in this petition, has prayed the court for convicting Respondents 1
and 2 for having committed contempt of court through violation of terms and
conditions of the undertaking filed in the Civil Appeal No. 2628 of 1980.
ISSUE
Whether
the Respondents 1 and 2 are guilty of contempt of court for violating the terms
and conditions of the undertaking of the Civil Appeal No. 2628 of 1980?
BRIEF
FACTS
Noorali
Babul Thanewala, the petitioner has filed a suit against Respondents 1 and 2 of
the Civil Appeal No. 2628 of 1980 for contempt of court stating that the terms
and conditions of the undertaking have been violated and prayed the Hon’ble
Supreme Court to direct to hand over the suit premises possession to the
petitioner.
The
petitioner, who is the owner and landlord of the Tika No. 3 City Survey House,
bearing Nos. 344/345, Jambli Naka, Thane property, where the Ramakrishna Hindu
Hotel or Ramakrishna Hotel restaurant is operated, filed Civil Suit No. 213 of
1970 in the Court of Civil Judge, Senior Division, Thane, against the first
respondent and four others, by name P.A. Dange, V.A. Dange, Haribhan Shivale,
and Giri Anna Shetty. The suit was decreed by the Trial Court.
Respondent
1 has alone filed an appeal against the decree before the district court and it
was dismissed by confirming the order of eviction. He further approached the
High Court of Bombay under writ petition No. 354 of 1975 and the court upheld
the lower court’s decree and dismissed the appeal. Finally, on approaching the
Supreme Court, the appeal was dismissed on 18th August 1987. However, the court allowed the appellant
to continue the business till 31st March 1989, stating, “appellant and all those
persons who are now occupying the premises as employees or staff and are
staying in the premises file a usual undertaking in this Court within eight
weeks from today stating inter alia that they will hand over and deliver over
vacant possession of the premises on the expiry of the period mentioned above
and also indicate that they will go on depositing the mesne profits until the
possession is delivered. In default of furnishing or filing the undertaking in
the manner indicating within the time aforesaid the decree of execution shall
become executable forthwith.”
Raghuram
A. Shetty, the second respondent in this petition, filed Civil Suit No. 306 of
1989 in the Thane Civil Court sometime in the early months of 1989 asking for a
declaration that the eviction order obtained concerning the subject premises in
Civil Suit No. 213 of 1970 cannot be executed against him and for a permanent
injunction against the petitioner. He also filed a request for a preliminary
ban on carrying out the aforementioned decree. An interim injunction was
granted as requested by the Thane Civil Court. This is how the petitioner, in
this case, filed this contempt petition against the first respondent, the
plaintiff in Civil Suit No. 306 of 1989, as well as the original tenant, K.M.M.
Shetty.
The
second respondent has filed a reply statement in which he contended that
on November 29, 1986, P.A. Dange acquired the hotel business that was being
operated by the tenant, K.M.M. Shetty, on the ground floor of the suit premises
under the name and style of Ramkrishna Hindu Hotel, and that, according to an
agreement dated January 2, 1967, the said P.A. Dange, with the tenant’s
consent, transferred the said business and the exclusive possession of the
later, on January 8, 1972, the tenant and the second respondent signed a new
agreement under which the second respondent agreed to pay the tenant a royalty.
To the petitioner’s knowledge, the second respondent was still occupying the
property and operating a business, but he was not named as a party in the
eviction suit or the subsequent proceeding, so he was not subject to the
eviction decree. The landlord-petitioner has submitted a reply to this
response.
This
Court stated “the order granting the injunction against the petitioner
from executing the eviction decree against the second respondent shall not be
effective and that the petitioner is entitled to execute the decree for
eviction against all people who are in possession of the property after
discussing in detail the various developments of the case brought about by the
first respondent as well as by the second respondent herein. The court found
the first respondent guilty of contempt for wilfully disobeying the undertaking
he made in front of the court.”
DECISION
The
question that had been raised in front of the Hon’ble Supreme Court was the
punishment to be given to the first respondent and the relief to the
petitioner. The learned counsel for the first respondent had stated on behalf
of his client stated that his client was an 84-year-old man, and was willing to
hand over vacant possession to the petitioner and that he was unable to comply
with the undertaking bona fide given the facts and circumstances.
The
court stated, “When an order is given on the basis of an undertaking,
the order amounts in substance to an injunction restraining that party from
acting in breach thereof. The breach of an undertaking given to the Court by or
on behalf of a party to a civil proceeding is, therefore, regarded as
tantamount to a breach of injunction although the remedies were not always
identical.”
The
court further stated, “To enforce an undertaking, it is treated as an
order and if the terms and conditions of the undertaking are not complied by
the party, there would be consequences upon them for the disobedience of an
order for an injunction. It is established law that misconduct amounting to
contempt includes violating an order of a court or an undertaking made by a
party to a civil case in whose favour the court sanctions a certain course of
action. In these situations, the remedy could be a warning to the contemnor to
stop, a jail sentence, a fine, or any combination of those. We believe that a
simple sentence of imprisonment or a fine will not serve the interests of
justice in this case given the facts and circumstances and the fact that the
undertaking was broken.”
The
court decided that the first respondent is guilty of contempt of court due to
the wilful disobedience of the undertaking. Accordingly, he was convicted and
sentenced to pay a fine of Rs.500 within four weeks, failing which he would
suffer simple imprisonment for one month, and also directed to deliver vacant
possession of the premises forthwith to the petitioner to the extent possible
by him. The court also further directed the District Magistrate, Thane, to
evict all those who are in physical possession of the property including the
2nd respondent and his men, and if necessary, with police help and hand over
the vacant possession of the premises to the petitioner. However, the court
discharged the rule issued against the second respondent.
CONCLUSION
The
courts are considered to be the administrators of justice in the nation. The
order or decree passed by them is required to be followed. Apart from the
Contempt of Courts Act 1971, the Constitution prioritizes the process of
contempt of court to maintain justice and equality in society. Under the Indian
Constitution, the Supreme Court of India, i.e., the Court of Record can hold
any party liable for contempt of court, if anything wrong has been committed
against the decision of the courts under Article 129.
Also,
Article 142 (a) states that the Supreme Court has the full authority to issue
an order securing anyone’s attendance, the production of any documents, or the
ability to penalize anybody for disobeying any law passed by the Parliament
regarding the requirements specified in clause 1 of this Article. Since the
Supreme Court has the authority to impose penalties for contempt of court, this
does not imply that it can take any action that violates an individual’s right
to personal liberty. We are aware that because the Indian Constitution is the
custodian of all our rights, it must protect them and cannot infringe on them
directly.
The
Hon’ble Supreme Court made it clear that any person disobeying the decree of
the court would be tried for contempt. The party’s non-compliance with the
decree would disrupt the process of justice. The court has also made it clear
that any undertaking given by the parties to the court will be considered an
order and not adhering to the terms and conditions would also be considered
contempt of court.
This article is written by K. Mihira
Chakravarthy, 2nd year, B.A. L.L.B student from Damodaram Sanjivayya
National Law University.
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