AYISSA BIBI UMMA v. ABOOBACKER — 1971 DIGILAW 323 (KER)

Judgment :- 1. The respondent is sought to be committed for contempt of court for committing breach of an undertaking given by him to this Court. We issued notice, in the first instance, dispensing with personal appearance, but, after hearing arguments of both sides, directed the respondent to appear in person on 291h November 1971. The respondent failed to appear; and we issued a non-bailable warrant to have him arrested and produced before us today. After knowing about the warrant, the respondent has appeared. 2. The petitioners filed a petition before the Rent Control Court in 1961 for evicting the respondent from a building. The Rent Control Court dismissed the petition; but, on appeal, the Appellate Authority allowed the petition and ordered eviction. The respondent took up the matter in revision before the District Judge; and the District Judge reversed the decision of the Appellate Authority and restored the decision of the Rent Control Court. Against that, there was a further revision to this Court; and this Court set aside the decision of the District Judge and remanded the matter for fresh disposal. The District Judge once again came to the same conclusion and dismissed the petition for eviction. There was another revision against that order; and the same learned judge of this Court again set aside the judgment of the District Judge and ordered eviction. The respondent then moved this Court to grant him some time for vacating the premises which the learned judge granted. And the respondent moved the Supreme Court for a special leave, wherein also he did not succeed. Then he moved the Single Judge of this Court once again for granting him some time more; and when the matter came for hearing, the counsel of the petitioners also agreed for granting time. And the learned judge granted time for two months, viz., till 5th May 1971. 3. Now, the contempt proceedings have been started by the petitioners on the allegation that the undertaking given by the counsel of the respondent was an undertaking to this Court and the respondent committed breach of that undertaking. We may extract hereunder the undertaking: "Without any demur or objection the petitioner (the respondent before us) will unconditionally surrender the building to the respondents in this C.M.P. (the petitioners before us) on or before May 5th 1971. We may extract hereunder the undertaking: "Without any demur or objection the petitioner (the respondent before us) will unconditionally surrender the building to the respondents in this C.M.P. (the petitioners before us) on or before May 5th 1971. I have necessary instruction from my party to make this submission." The counsel of the respondent signed, and then followed "In view of the above undertaking, I agree to the grant of time to the petitioner in this C. M. P. to surrender the building till 5th May 1971." And the counsel of the petitioners signed. After these endorsements, the learned judge passed the order "Time is granted up to 5th May 1971." 4. After obtaining this order, the respondent filed a suit before the Additional Munsiff's Court, Kozhikode on 7th April 1971, just before that court closed for the midsummer recess. The respondent also obtained an ex parte order of interim injunction in an interlocutory application restraining the petitioners from executing the decree and recovering possession of the building. The suit was one for a declaration that the order of eviction passed by the Sub Court and confirmed by this Court was invalid and unexecutable and also for a permanent injunction restraining the petitioners from executing the order. The petitioners when they knew about this, moved the Vacation Judge of this Court; and the learned judge sent back the proceedings to the Additional Munsiff, Kozhikode directing him to dispose of the petition for injunction on the reopening day, viz., 22nd May 1971. The Additional Munsiff beard the petition on the reopening day, and on 1st June 1971, pronounced orders vacating the interim injunction and dismissing the petition. Immediately thereafter, the respondent filed another petition before the Principal Munsiff and obtained another ex parte order of interim injunction. Pending the said order, the respondent filed a Civil Miscellaneous Appeal before the District Court against the order of the Additional Munsiff dismissing the injunction petition. And pending the said miscellaneous appeal, the petitioners have come to this Court with the present petition praying that this Court be pleased to if sue notice to the respondent and commit him for contempt of court for committing breach of the undertaking he gave to this Court. 5. And pending the said miscellaneous appeal, the petitioners have come to this Court with the present petition praying that this Court be pleased to if sue notice to the respondent and commit him for contempt of court for committing breach of the undertaking he gave to this Court. 5. The contention of the counsel of the respondent has been that the undertaking given by the counsel was not as undertaking to this Court, but was only an undertaking to the other side, so that committing breach of such an undertaking was not contempt of court. 6. A few decisions have been brought to our notice by the counsel on both sides. The first decision is the decision of the Calcutta High Court in Nisha kan Roy Chowdhury v. Smt. Saroji Bashini Ooho (AIR. 1948 Cal. 294). Harries C. J. who spoke for the Division Bench observed that the promise or undertaking in each case should be interpreted on its particular facts and upon the precise words used in the compromise and every undertaking made before the court should not be construed as an undertaking made before the court. In that case, the owner of certain premises brought a suit on the Original Side of the High Court for ejectment against another on the ground that the latter had installed the images of Kali and Siva on the premises without the former's consent. The suit was compromised; and under the compromise, the tenant undertook to remove the images before giving up possession or at any time prior thereto on demand by the landlord. The said compromise was presented to the Court; and the Court passed a decree in terms of the compromise. The tenant failed to remove the images, when the landlord moved the High Court alleging that such failure on the part of the tenant was a breach of the undertaking he gave to the Court so that he committed contempt of court. Harries C. J. held that, in the particular circumstances of the case the undertaking given by the tenant was an undertaking to the landlord and not an undertaking to the Court. Gentle J., who heard the matter on the Original Side, held that the undertaking given by the party was an undertaking to the Court; but Harries C. J. (in appeal) observed that the word 'undertakes' did not mean undertakes to Court.' 7. Gentle J., who heard the matter on the Original Side, held that the undertaking given by the party was an undertaking to the Court; but Harries C. J. (in appeal) observed that the word 'undertakes' did not mean undertakes to Court.' 7. The next decision is the decision of the Bombay High Court in Bajranglal Gangadhar Khemka v. Kapurchand Ltd. (AIR. 1950 Bom. 338). Chagla C. J. and Gajendragadkar J. constituted the Division Bench; and the learned Chief Justice who spoke for the Bench held that, although the court might be bound to record a compromise, still, when the court passed a decree it put is imprimatur upon the terms of the compromise and made the terms a rule of the court; and that if such an undertaking was later on not acted upon by the party who gave the undertaking, the party was liable to be committed for contempt of court Chagla C. J. did not agree with the view expressed by Harries C. J. The Bombay Chief Justice was of the opinion that, once the compromise was accepted by the court and a decree passed in terms thereof, the undertaking which was the basis of the compromise became an undertaking to the court. It was also pointed out by Chagla C J. that, on the Original Side of the High Court, whenever the expression'a party undertakes' had been used, it had always borne the meaning that undertaking was to the Court. 8. The next decision is again of the Calcutta High Court the decision in Sukumar Mitra v. Tarasankar Ghosh (AIR. 1952 Cal. 591). A Division Bench of the Calcutta High Court held in this case that, if in the compromise decree, the consequences for breaking the undertaking were provided, the court should not, in such a case, exercise the discretionary powers to order committal for contempt of court and the party who committed breach of the undertaking should be visited only with such consequences as provided in the decree. It was also held in this case that, if there was any reasonable doubt whether the undertaking was an unqualified one or not, then also the court should be reluctant to take proceedings for contempt. 9. The next decision cited is also of the Calcutta High Court viz., Em. Lajuklata v. Mrtshingha Prasad (AIR. 1952 Cal. It was also held in this case that, if there was any reasonable doubt whether the undertaking was an unqualified one or not, then also the court should be reluctant to take proceedings for contempt. 9. The next decision cited is also of the Calcutta High Court viz., Em. Lajuklata v. Mrtshingha Prasad (AIR. 1952 Cal. 669), where a Division Bench laid down that, in cases of contempt of court, though the court should not be vindictive, still a litigant should understand that he would not be permitted to break with impunity the undertaking he gave to the court. In that case as in the present case, there was an attempt to move a lower court (the Small Cause Court) to get an order of stay of execution against the decree of the High Court. And the Calcutta High Court pointed out that that attempt made the position much worse. 10. The next decision too is of the Calcutta High Court in Suretennessa Bibi v. Chintuharan Das (AIR. 1955 Cal. 182). The Division Bench which beard the case laid stress on the fact that the court should consider whether the undertaking was an unconditional undertaking or only a qualified one, and whether the consequences of default were provided for either in the undertaking or in the order that followed. 11. The next decision is again of the Calcutta High Court, the decision in Chhay Debi v. Lahoriram Prashar (67 C.W.N. 819). A Division Bench observed that the remedy by committal for contempt of court should be jealously and carefully watched and should be awarded only with great reluctance. The Division Bench also warned that any doctrinaire approach might have its own pitfalls and that the word "undertaking" should be construed in a natural sense. This was a decision in which the learned judges considered several decisions in considerable detail. However, it is not necessary for us to go into all the aspects considered in this decision. Still another decision cited is the decision of the Calcutta High Court in Lal Shayam Sundar v. Lal Baij Nath Prasad (68 C.W.N. 148). wherein it was held that the breach of an undertaking given to the court on the faith of which the court sanctioned a particular course of action or inaction was misconduct amounting to contempt. 12. Still another decision cited is the decision of the Calcutta High Court in Lal Shayam Sundar v. Lal Baij Nath Prasad (68 C.W.N. 148). wherein it was held that the breach of an undertaking given to the court on the faith of which the court sanctioned a particular course of action or inaction was misconduct amounting to contempt. 12. Next we come to the decision of the Patna High Court in Bukhtiparpur Bihar Light Rly Co. Ltd. v. State of Bihar (AIR. 1951 Patna 231). This decision pointed out that unintentional and technical contempts should not be punished. The learned judges also pointed out that the mere fact that there was an attempt to overreach the court should not make the guilty party liable to proceedings for contempt. Again, it was pointed out that the order of the court which a party was bound to follow to the letter should be strictly interpreted and the interpretation should not be open to any doubt or difference of opinion. 13. The next decision is of the Punjab High Court in Badri Dass v. Labhu Mal( AIR. 1959 Punjab 322). This is a decision of a Single Judge, and it is a very short decision, wherein the learned judge observed that if there was a compromise or an understanding between the parties, previously and the court merely accepted such compromise, then a breach of such undertaking would not be contempt of court. 14. And the last decision we would refer to is the decision of the High Court of Madhya Pradesh Ram Juwan v. Devendra Nath Gupta (AIR. 1960 M. P. 280). This is again by a Single Judge; and the learned judge disagreed with the views expressed by Chagla C. J. in the Bombay decision and the views expressed in the Calcutta decision in Suretennessa Bibi v. Chintaharan Das. (AIR. 1955 Cal. 182). The learned judge referred to Oswald on Contempt of Court and observed that an undertaking given to the court was different from what the parties agreed between themselves. 15. From the several decisions cited above, we have been able to gather the main principles in a case like this; and we may just enunciate them. 16. (AIR. 1955 Cal. 182). The learned judge referred to Oswald on Contempt of Court and observed that an undertaking given to the court was different from what the parties agreed between themselves. 15. From the several decisions cited above, we have been able to gather the main principles in a case like this; and we may just enunciate them. 16. Every undertaking given by a party to a litigation is not an undertaking to the court: there is difference between an undertaking given to the other party and an undertaking given to the court. The breach of an undertaking given to the other party will not constitute contempt of court: only the breach of an undertaking given to the court will constitute contempt of court. Whether a particular undertaking is an undertaking to the court or to the opposite party must depend upon the facts and circumstances of each case and the language used. Normally, if the parties agreed to a compromise outside court and reported the same to the court and the court passed a decree in terms of the compromise, then the under-taking given by a party to the compromise is not an undertaking given to the court unless the order passed by the court in pursuance of the compromise indicates that the court treated the undertaking as one given to it a compromise come to in the presence of the court may not stand on the same footing. Similarly, if, in pursuance of an undertaking, a compromise decree was passed and provision was also made in the decree that if a breach of the undertaking was committed a particular consequence would follow, in such a case also even if the undertaking was to the court, the court should not treat it as a matter for contempt of court but should leave the party who committed the breach to suffer the consequence mentioned in the decree. And the undertaking should be an unqualified undertaking: and if there is any reasonable doubt regarding its meaning as to whether it is unqualified or not, then the court should be reluctant to take proceedings for contempt. The court should exercise the power to commit for contempt only sparingly, but should never fail to guard it jealously. And the undertaking should be an unqualified undertaking: and if there is any reasonable doubt regarding its meaning as to whether it is unqualified or not, then the court should be reluctant to take proceedings for contempt. The court should exercise the power to commit for contempt only sparingly, but should never fail to guard it jealously. And the court should not be vindictive or over-sensitive and if there is reasonable scope for doubt or difference of opinion as to whether a particular undertaking was an undertaking to the opposite party or to the court or whether it was an unqualified undertaking or not, the court should treat the undertaking as an undertaking given to the party and only a qualified undertaking. Still, the court should not allow a party to treat the court lightly or to commit breach of an undertaking given to the court with impunity: none should be allowed to have such a feeling. 17. Bearing these principles in mind, if we analyse the position in this case, what follows is that the undertaking given by the counsel of the respondent was in fact an undertaking given to the court. The respondent filed a petition for extension of time; and when the matter was being heard, during the discussion at the bar, the respondent agreed that be would unconditionally surrender the premises on or before a particular day and the petitioners also agreed to give time till that day. This agreement was in the presence of the Court; and it was not an agreement come to by the parties outside Court and reported to the Court. It is therefore not correct to treat the undertaking given by the respondent before the Court only as an undertaking given to the other side. Subsequent to his undertaking, the respondent filed a suit before the Additional Munsiff, Kozhikode for a declaration that the order of eviction passed by the High Court was invalid and unexecutable And he also obtained an interim ex parte order of injunction restraining the petitioners from executing the order of eviction. And when that order was vacated by the Additional Munsiff, the respondent went before the Principal Munsiff and obtained another similar order; and it was pending that order that he filed a civil miscellaneous appeal against the dismissal of his petition for injunction by the Additional Munsiff. And when that order was vacated by the Additional Munsiff, the respondent went before the Principal Munsiff and obtained another similar order; and it was pending that order that he filed a civil miscellaneous appeal against the dismissal of his petition for injunction by the Additional Munsiff. All this he did after he took time from this Court undertaking to surrender "unconditionally" and without "any demur or objection": it is therefore fairly apparent that the respondent had no intention to honour the undertaking even when be gave the undertaking: and this is clear from his subsequent conduct in approaching the Additional Munsiff first with his suit and interlocutory application and the Principal Munsiff next with a similar interlocutory application. 18. The respondent is thus guilty of contempt of court. We therefore convict him and sentence him to pay a fine of Rs. 250/-, in default to suffer simple imprisonment for two weeks.