Noorali Babul Thanewala Vs. Sh. K.M.M. Shetty & Ors.
Appeal: Civil Misc. Petition
(Civil) No. 13066 of 1989
IN
Civil
Appeal No.2628 of 1980.
Petitioner: Noorali Babul Thanewala
Respondent: Sh. K.M.M. Shetty & Ors.
Apeal: Civil Misc. Petition (Civil) No. 13066 of 1989
IN
Civil Appeal No.2628 of 1980.
Judges: SABYASACHI MUKHARJI, CJI. & V. RAMASWAMI, J.
Date of Judgment: Dec 20, 1989
Head Note:
CONTEMPT
OF COURT
Undertaking given to Court
in an eviction proceedings against tenant – Breach of undertaking – Misconduct
amounting to contempt – Mere imposition of imprisonment or fine will not meet
the ends of justice – Direction given to purge the contempt by delivering
vacant possession immediately.
Held:
When a
court accepts an undertaking given by one of the parties and passes orders
based on such 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
proceedings is, therefore, regarded as tantamount to a breach of injunction
although the remedies were not always identical. For the purpose of enforcing
an undertaking that undertaking is treated as an order so that an undertaking,
if broken, would involve the same consequences on the persons breaking that
undertaking as would their disobedience to an order for an injunction. It is
settled law that breach of an injunction or breach of an undertaking given to a
court by a person in a civil proceeding on the faith of which the court
sanctions a particular course of action is misconduct amounting to contempt.
The remedy in such circumstances may be in the form of a direction to the
contemnor to purge the contempt or a sentence imprisonment or fine or all of
them. On the facts and circumstances of this case in the light of our finding
that there was a breach of the undertaking we think that mere imposition of
imprisonment or fine will not meet the ends of justice. There will have to be
an order to purge the contempt by directing the first respondent-contemnor to
deliver vacant possession immediately and issuing necessary further and
consequential directions for enforcing the same. (Para 11)
JUDGEMENT:
V.
RAMASWAMI, J. :
1. In this petition the petitioner has prayed for convicting Respondents 1 and
2 for committing the contempt of this Court by violating the terms and
conditions of the undertaking filed in Civil Appeal No. 2628 of 1980 and for a
direction that whosoever is in possession of the suit premises be handed over
to the petitioner. The petitioner as the owner and landlord of the property,
Tika No. 3, City Survey House, bearing No. 344/345, Jambli Naka, Thane,
consisting of ground floor, first floor and second floor in which the business
of restaurant known as Ramakrishna Hindu Hotel or Ramakrishna Hotel is carried
on, 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 for eviction from the
above said premises. The suit was decreed by the Trial Court. The first
respondent who was the first defendant in the suit alone filed an appeal
against this decree before the District Court. The appeal was dismissed
confirming the order of eviction. Thereafter, the first respondent filed writ
petition No. 354 of 1975 in the High Court of Bombay and that writ petition was
also dismissed. Though defendants 2,3,4 and 5 did not file the appeal or take
the matter further to the High Court they were impleaded as respondents in the
appeal and the writ petition filed by the first respondent herein. The first
respondent thereafter filed Civil Appeal No. 2628 of 1980. The said appeal was
dismissed by this Court on 18th of August, 1987. However, at the request of the
appellant this Court allowed the appellant to continue to be in possession and
carry on the business till 31.3.1989 subject to the “appellant and all those
persons who are now occupying the premises as employees or staff and are
staying in the premises file an 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 indicated within the time aforesaid the decree of execution shall
become executable forthwith.”
2. In
pursuance of this order the first respondent K.M.M. Shetty filed an undertaking
on 5.10.1987. The first respondent through his advocate had produced the muster
roll showing the names of persons employed by him for running the hotel
business in the suit premises as well as a list of persons staying in the said
hotel. This list showed 17 persons as being the employees and persons staying
in the the hotel, and as directed by this Court the 17 persons also filed an
undertaking.
3. Some
time in the beginning of 1989 one Raghuram A. Shetty-second respondent in the
contempt application filed Civil Suit No. 306 of 1989 in the Thane Civil Court
before the IIIrd Joint Civil Judge, Senior Division, Thane, for a declaration
that the decree for eviction obtained in respect of the suit premises in Civil
Suit No. 213 of 1970 cannot be executed against him and for a permanent
injunction against the petitioner herein. Pending the suit he had also filed an
application under Order 39 rule 1 and 2 read with section 151 of CPC for a
temporary injunction from executing the decree for eviction. By an order dated
5.4.1989, the IIIrd Joint Civil Judge, Thane, granted a temporary injunction
against the petitioner herein restraining him upto the disposal of Civil Suit
No. 306 of 1989 from executing the decree for eviction given in Civil Suit No.
213 of 1970. Thereafter, the petitioner has filed this contempt petition both
against his original tenant – K.M.M. Shetty and also against the second
respondent who was the plaintiff in Civil Suit No. 306 of 1980.
4. The
second respondent has filed a reply statement in which he has contended that
P.A. Dange had taken over the hotel business which was being carried on by the
tenant-K.M.M. Shetty in the name and style of “Ramkrishna Hindu Hotel” at the
ground floor of the suit premises on 29.11.1986 and under an agreement dated
2nd January, 1967 the said P.A. Dange with the consent of the tenant
transferred the said business and the exclusive possession of the hotel to the
second respondent herein. Subsequently there was another agreement executed
between the tenant and the second respondent on 1.8.1972 under which the second
respondent was paying royalty to the tenant and that to the knowledge of the
petitioner he was in the occupation of the premises and carrying on the
business and that in spite of it he had not been impleaded in the eviction suit
or the subsequent proceeding and that therefore he was not bound by the decree
for eviction. A rejoinder has been filed by the landlord-petitioner to this
reply.
5. As
stated earlier the Suit No. 213 of 1970 was filed by the petitioner for
eviction not only against the original tenant- K.M.M. Shetty but also against
P.A. Dange, V.A. Dange and two others. The case of the petitioner-landlord was that
the tenant had sub-let the premises to the said P.A. Dange-defendant No. 2 and
V.A. Dange-defendant No. 3. This tenant filed written statement contending that
he had allowed the second defendant to manage and conduct the said hotel
business under the terms and conditions set out under an agreement made and
entered into between them and that Municipal licence for the business had
always been and still in the name of the tenant-first defendant. Neither P.A.
Dange nor V.A. Dange ever stated that they had parted with the possession to
the second respondent either as a licensee or in any other capacity. Again in
the Writ Petition No. 354 of 1975 filed in the High Court the first respondent
had stated that P.A. Dange was permitted to conduct the said business under an
agreement dated 29th February, 1970 on his paying the tenant a sum of Rs. 500/-
per month by way of royalty, that this agreement was subsequently renewed on
29th January, 1970 increasing the royalty amount from Rs. 500/- to Rs. 600/-
per month but, however, during the pendency of the appeal before the learned
District Judge, Thane, defendants 2 and 3 had returned the business together
with the premises, stock-in-trade, furniture, fittings and all paraphernalia
which were given to them for conducting the said business to the first
respondent herein and that the first respondent had been in sole possession and
occupation of the said premises and of the business conducted therein and he
himself had been carrying on the business from that time. Again in this Court
when he filed the special leave petition the first respondent prayed for stay
of dispossession. This Court by an order dated 5th November, 1980 granted stay
of dispossession on condition that the respondent will continue to pay
compensation equivalent to rent every month regularly to the petitioner herein
and that he shall not induct anybodyelse in the premises in question.
6. When
the petitioner received notice in Civil Suit No.306 of 1989 he sent the
lawyer’s notice dated 14th March, 1987 to the first respondent inviting his
attention to the undertaking given by him to vacate the premises before the
31st of March, 1989 and the consequences that may follow, if in breach of the
said undertaking, he does not hand over possession. In this notice he also
brought to the notice of the first respondent that the suit was filed at the
instigation of the first respondent and charged collusion between first and
second respondent and stated that the suit is based on false and fictitious
allegations intentionally made to postpone the date of delivery of the
premises. The first respondent sent a reply to this notice on 23.8.1989 stating
that he is not at all concerned in any manner whatsoever with the suit filed by
the second respondent, and that he would be filing necessary affidavit in the
Suit No. 306 of 1989. The first respondent filed an affidavit in the suit in
which also he stated that he had nothing to do with the suit filed by the
plaintiff and denied the claim of the plaintiff and further stated that the
suit premises had to be handed over to the petitioner by 31.3.1989 as per his
undertaking given in this Court. He had also prayed the Court to pass “such
suitable orders to facilitate compliance of the orders” of this Court in
respect of the suit premises. He had enclosed copy of his reply to the lawyer’s
notice sent by him to the petitioner along with this affidavit. However, for
the first time in the reply filed to the contempt application the first
respondent had stated that “the petitioner has with ulterior motives
deliberately withheld from this Hon’ble Court material facts i.e. the
respondent No.1 has not been (in landlord’s knowledge) in the suit premises
since 1967 i.e. even before the suit for eviction was filed in the trial court”
and that “at that time of final hearing of the appeal, it was landlord’s duty
to bring to the notice of this Hon’ble Court that the answering respondent is
not in possession of the dispute premises.” He had further stated that when the
undertaking was filed by him he was not in possession of the suit premises and
that it was well within the knowledge of the landlord. He had also stated that
the second respondent had been in possession of the suit property. We cannot
now accept this statement of the first respondent that he was not in possession
at the time when he gave the undertaking on the facts and circumstances stated
above. If the second respondent is in possession as he claims now, it would
mean that the first respondent had been playing a fraud on the Court, and swearing
false affidavits and making false statements and obtaining orders on the basis
of such false statements. It may be noted, however, that there was absolutely
no need for making such false allegations and obtain orders which are of no use
to him if he had not been in possession, as stated now. If it is said that he
might have been motivated by a desire to spite the landlord and to deprive him
of the possession it would clearly be an abuse of the process of the Court.
7. Throughout P.A. Dange and the first respondent who were stated to have given
a licence to the second respondent for carrying on the business were parties to
the proceedings but they never informed the Court about the possession being
with the second respondent. As already stated the learned counsel for the first
respondent produced in this Court at the time of hearing of the Civil Appeal
the muster roll for running the hotel as well as a list of persons who are
stated to be staying in the hotel. In the list the second respondent’s name did
not find a place. Now if the first respondent states that the second respondent
had been in the possession of the suit premises and carrying on the hotel
business ever since 2nd January, 1967 the first respondent is guilty of
deliberately suppressing the facts and giving a false undertaking to this Court
that he is in possession of the suit premises.
8. In the
Civil Suit No.306 of 1989, the Second respondent had prayed for the injunction
on the basis that he was a licensee originally from P.A. Dange and later under
the tenant himself and that though there was no privity between the petitioner
and the second respondent, by reason of certain amendments to the Bombay Rents,
Hotel and Lodging House Rates Control Act he had become the tenant directly
under the petitioner herein and entitled to protection. An interim injunction
has been granted by the IIIrd Joint Civil Judge, Thane, on the ground that it
is necessary, till the plaintiff establishes his right, to allow him to be in
possession. The learned Judge was not well-founded in this view. In the light
of the earlier statements made by the first ~4~ K.M.M. Shetty, P.A. Dange and
V.A. Dange in the eviction proceedings and in this Court and in the light of
the undertakings given by the first respondent and 17 others the learned Judge
should have directed the plaintiff to prove his claim in the suit first before
any relief is given against the defendants pending the suit. It may be
mentioned that the argument of the learned counsel of the petitioner was that the
first respondent had falsely instigated the second respondent to file the suit
and obtain an injunction. If this contention is true then the first respondent
is guilty of contempt in not handing over vacant possession as per the
undertaking and in fact the second respondent would equally be guilty as abetor
of the breach. However, we are not going into the question of the second
respondent’s right in Civil Suit No.306 of 1989 and that may have to be decided
after trial. Suffice it to say that we are of the view that the order of
injunction against the petitioner from executing the decree against the second
respondent is not justified in this case. We would like to add that as the
facts of the undertaking given and the various statements made by the tenant in
the eviction proceedings were before him, we would have expected the learned
Civil Judge, Thane, to have directed the parties to obtain a clarification from
this Court, if there was any doubt as to the executability of the decree passed
by this Court.
9. Be that
as it may, we now direct that that portion of the order granting injunction
against the petitioner from executing the eviction decree against the second
respondent, on the facts and circumstances of this case, shall not be operative
and that petitioner is entitled to execute the decree for eviction against all
persons who are in possession of the property.
10. Now
coming to the question of relief that is to be granted to the petitioner and
the punishment to be imposed on the first respondent, the learned counsel for
the first respondent contended that his client is an old man of more than 84
years and that in fact though he was willing to hand over vacant possession, on
the facts and circumstances he could not comply with undertaking bona fide.
11. When a court accepts an undertaking given by one of the parties and passes
orders based on such 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
proceedings is, therefore, regarded as tantamount to a breach of injunction
although the remedies were not always identical. For the purpose of enforcing
an undertaking that undertaking is treated as an order so that an undertaking,
if broken, would involve the same consequences on the persons breaking that
undertaking as would their disobedience to an order for an injunction. It is
settled law that breach of an injunction or breach of an undertaking given to a
court by a person in a civil proceeding on the faith of which the court
sanctions a particular course of action is misconduct amounting to contempt.
The remedy in such circumstances may be in the form of a direction to the
contemnor to purge the contempt or a sentence imprisonment or fine or all of
them. On the facts and circumstances of this case in the light of our finding
that there was a breach of the undertaking we think that mere imposition of
imprisonment or fine will not meet the ends of justice. There will have to be
an order to purge the contempt by directing the first respondent-contemnor to
deliver vacant possession immediately and issuing necessary further and
consequential directions for enforcing the same.
12. In the foregoing circumstances, we find the first respondent guilty of
committing contempt by wilful disobedience of the undertaking given by him in
this Court and accordingly we convict him and sentence him to pay a fine of
Rs.500/- within the period of four weeks, failing which he shall suffer simple
imprisonment for one month, and also direct him to deliver vacant possession of
the premises forthwith to the petitioner to the extent possible by him. We
further direct 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 give vacant possession of the premises to
the petitioner forthwith.
13. However, we discharge the rule issued against the second respondent.
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