Manorama Devi v. Kokila Devi — 1992 DIGILAW 1399 (ALL)

JUDGMENT B.C. Saxena, J. - Notice was directed to be issued to opposite party No. 1 to show cause why she be not punished for committing contempt of this Court by failing to vacate Ganga Bhavan situated at Naka Hindola Crossing, Lucknow despite undertaking given by her Counsel in writ petition No. 9147 of 1988. No notice was issued to opposite parties 2 and 3 since they could not be said to have committed contempt. 2. Opposite party No. 1 filed her return and the applicant has filed reply thereto. I had heard the Learned Counsel for the parties on 11th September, 1992 and orders were reserved which are being given hereunder. The brief facts may be noted. The applicants allege that they are owners-landlords of the said building Ganga Bhavan. One late Sri Sarjoo Prasad husband of opposite party No. 1 was the tenant in one shop in the said building. Late Gangasharan, husband of applicant No. 1 and father of applicants 2 and 3 filed a suit for ejectment being Suit No. 16 of 1969 in the Court of Munsif South, Lucknow for the ejectment of the said Sri Sarjoo Prasad from the shop. The suit was dismissed by the learned Munsif, Lucknow by a Judgment dated the 14th May, 1971. The Late Gangasharan filed an appeal against the said judgment which was Civil Appeal No. 296of 1971- It was transferred to the Court of Civil Judge, Mohan-lalganj, Lucknow. The learned Civil Judges by a judgment dated 28-4- 1972 allowed the appeal and set aside the judgment and decree, passed by the learned Munsif, South, Lucknow. Against the said judgment and decree, Sarjoo Prasad filed second appeal in this Court which was numbered as second Appeal No. 300 of 1974. During the pendency of the Appeal Gangasharan also died. His heirs were not got substituted. Hence Second Appeal was dismissed as having abated on 6th August, 1975. 3. Thereafter the applicants moved an application for execution being Execution Case No. 7 of 1984. Objections u/s 47, C.P.C. were filed by present application No. 1 and it was registered as Misc. Case No. 32 of 1985. The objection inter alia was that the decree has become non est and was not executable. The said objections were however rejected by the Munsif South, Lucknow and the execution case proceeded. Objections u/s 47, C.P.C. were filed by present application No. 1 and it was registered as Misc. Case No. 32 of 1985. The objection inter alia was that the decree has become non est and was not executable. The said objections were however rejected by the Munsif South, Lucknow and the execution case proceeded. Against the rejection of the objections opposite-party No. 1 filed a revision before the District Judge, Lucknow on 13-2-1978 being Civil Revision No.34 of 1987. After hearing the parties the revision was dismissed on 15-12-1989 against which opposite-party No. 1 filed a writ petition in this Court and through an interim order the execution proceedings were stayed. The writ petition was registered as W.P. No. 9147 of 1988. By a judgment dated 15-12- 1989 a learned Single Judge of this Court dismissed the writ petition. In the said judgment the operative portion reads as under: For the reasons here-in-above the writ petition is devoid of merit and it is accordingly dismissed. Learned Counsel for the petitioner undertakes that he will vacate the possession of the house in question just after completion of three months from today and deliver the possession to the opposite-parties 3 to 5 and also pay the damages for use and occupation during the said period to opposite parties 3 to 5. Learned Counsel for the opposite parties 3 to 5 has no objection to the said suggestion. (Emphasis Supplied). In case the petitioner does not vacate the premises within three months from today, opposite parties 3 to 5 shall have a right to execute the decree but this benefit would be available to the petitioner if she either pays to the petitioner (sic) or deposits the damages for use and occupation of the aforesaid period. 4. The applications allege that opposite-party No.1 had failed to deliver the possession to the applicants, hence she is guilty of wilful disobedience of the undertaking given to the Court by her Counsel. 5. The opposite-party in her return has inter alia taken up the plea that the property in question falls within the jurisdiction of Munsif, North, Lucknow and thus the proceedings on the basis of the said suit right upto the stage of the second appeal were without jurisdiction. It was also been pleaded that the writ petition was heard on 31st March. 1989 and judgment was delivered on 15th December, 1989. It was also been pleaded that the writ petition was heard on 31st March. 1989 and judgment was delivered on 15th December, 1989. Her Counsel did not inform her about the alleged underking and as such there was no undertaking. It has also pleaded that the execution proceedings starting from filing of regular Suit No. 16 of 1989 were illegal and without jurisdiction and nullity by reason of the fact indicated here-in-above 6. Rejoinder affidavit in relply has been filed. It has been denied that the property in suit was situated within Ward Yahiyaganj and thus fell within the territorial jurisdiction of Munsif North. It is averred that the property in suit is situated within the Ward Hazaratganj and was within the jurisdiction of Munsif, South. In any view of the matter it was pleaded that this point has got no relevancy since at no time the proceedings were challenged on the ground of want of jurisdiction. 7. The Learned Counsel for the applicant has placed reliance on two Supreme Court decisions (i) reported in 1990 (1) All RC 131; (1990) (1) CRC 378 (SC) , Noorali Babul Thanewala v. K.M.M. Shetty and others, (ii) Firm Ganpat Rajkumar v. Kalu Ram and others, reported in 1990 (1) ARC 253. He has also cited a decision of this Court reported in 1984 (1) All RC 501 Sukhdeo Prasad v. Chetu Ram. 8. In the first case the Apex Court took the view that "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 any 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 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 sanction a particular cause 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 of imprisonment or fine or all of them." 9. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sentence of imprisonment or fine or all of them." 9. In the second case an undertaking was required to be given, but infact no undertaking was given. On consideration of the facts of the said case the Supreme Court dismissed the special leave petition, granted time of six months and had directed that the petitioner firm would file an undertaking. "All this could not happened if the present plaintiff had not consented or allowed the said order to be passed or stood by." It was held that the plaintiff deliberately did not object to the court passing the order in the SLP and thereby allowed and firm to mislead the court. It was therefore held that they are, therefore, bound to see that the order of the Court is complied with. It was further observed that, though contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, of Court can allow any party to mislead the Court and thereby frustrate the order. 10. In the case of Sukhdeo Prasad (supra) an undertaking was given and it was not honourable. The opposite-party was found guilty of having committed contempt and imprisonment of three months was imposed. 11. The law on the question as observed by the Apex Court in Noorali Babul's case (Supra) is fairly well settled. The breach of an undertaking given to the 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. 12. However, in the facts of each case the nature and strength of the undertaking is still required to be considered besides determining whether there has been wilful disobedience of the same amounting to an act of contempt. The operative part of the judgment in the writ petition has been quoted verbatim here-in- before. The contents of the said operative portion needs to be analysed to determine whether it can be said that an undertaking was given to the Court and whether the same would amount to an injunction, restraining the party from acting in breach thereof. The operative part of the judgment in the writ petition has been quoted verbatim here-in- before. The contents of the said operative portion needs to be analysed to determine whether it can be said that an undertaking was given to the Court and whether the same would amount to an injunction, restraining the party from acting in breach thereof. After having given my serious consideration to the facts in the instant case I am unable to hold that any undertaking to the Court amounting to an injunction restraining, the opposite party No. 1 herein, from acting in breach thereof was given. As would be noted, the learned Single Judge was pleased to observe in the next sentence that" the Learned Counsel for opposite parties 3 to 5 has no objection to the said suggestion.' (Emphasis supplied) 13. An unilateral undertaking by a party binding, itself and on the strength of the said undertaking, requiring the Court to grant him concession viz. sometime to vacate the premises as in the instant case will not depend on the consent or no objection by the Counsel for the other side. The use of the word 'suggestion' dilutes the effect of 'undertaking'. In my opinion on a true construction of the operative part of the Judgment it must be held that the use of word 'undertaking' did not mean a promise to the Court. It was simply a solemn promise by the lessee to the owner and the nature of that promise or undertaking could never be changed on its having not been objected to by the Learned Counsel for the present applicant. If is difficult to hold in the facts and circumstances of the present case that any decree was passed in terms of the said undertaking by the Court. The order relied upon by the applicant only contains 'a solemn promise' to vacate the premises in question within three months and does not contain any undertaking, by the present opposite party No. 1 or her Counsel, to that effect to the Court. The view taken herein is fortified by a decision of this Court reported in 1967 ALJ 442, Amarchand Kapoor v. Roshan Lal. 14. The view taken herein is fortified by a decision of this Court reported in 1967 ALJ 442, Amarchand Kapoor v. Roshan Lal. 14. It is further relevant to note that the order in the writ petition further provided that "In case the petitioner does not vacate the premises within three months from today, the opposite parties 3 to 5 shall have a right to execute the decree." This stipulation in the order in my opinion supports the view taken here-in-above that mere use of the word 'undertaking' in the order cannot be construed as an undertaking to the Court. It cannot be said that this Court was misled on the basis of the said that this Court was misled on the basis of the said 'undertaking' to provide for three months' time. The said stipulation in the order clearly gives an insight into the nature of the so-called undertaking. It was only a 'solemn promise' and the court naturally felt that it would not be proper to leave the matter at that and therefore it was provided that opposite parties 3 to 5 shall have the right to execute the decree and this clearly brings out the vagueness and non-clinching effect of the 'undertaking'. 15. As held by Hon'ble the Supreme Court in the decision referred to here-in-above contempt is a serious matter. In another decision reported in Babu Ram Gupta Vs. Sudhir Bhasin and Another, AIR 1979 SC 1528 the Apex Court held that an undertaking given by one of the parties should be carefully construed by the Court to find out the nature and extent of the undertaking given by the person concerned. It is open to the Court to assume an implied undertaking when there was none on the record. 16. In view of the tenor of the operative part of the judgment in the writ petition I am inclined to take the view that there is a reasonable doubt that the undertaking was not qualified. The undertaking as recorded in the judgment was that within three months opposite party No. 1 would vacate the premises failing which it was also provided that the decree may be executed. Thus in the facts of the instant case, the failure to give possession merely leads to a right to execute. The undertaking as recorded in the judgment was that within three months opposite party No. 1 would vacate the premises failing which it was also provided that the decree may be executed. Thus in the facts of the instant case, the failure to give possession merely leads to a right to execute. It was qualified undertaking and that too not given to the Court and a breach of which will not attract the contempt proceeding. 17. I am persuaded to take the view as above more so by reason of "the conduct of the appellants. According to the undertaking the opposite party was to handover vacant possession by the 15th March, 1990 when three month's period was to expire. The applicants have not approached this Court immediately thereafter. On the contrary, they chose to exercise the right given under the said judgment to execute the decree and they on 18th of March, 1990 moved an application before the Munsif south, Lucknow praying that since the time granted by this Court had expired and the opposite parties have failed to vacate the premises, the execution may kindly proceed and possession be delivered to the applicants. It was only on 11th of September, 1990, that is to say after lapse of about six months thereafter the present application was filed. In between 18th of March, 1990 and 11th of September, 1990 several proceedings between the parties were taken. Objections u/s 47 of the CPC were filed. The learned Munsif South granted a stay. The applicant thereafter moved Hon'ble Chief Justice for transfer of the executive case to some other Court. It was transferred to the other Court. It is not relevant to detail all those facts. 18. The purpose of making reference to those facts is to highlight the conduct of the applicants which makes it doubtful that the present proceedings had been initiated by them bona fide. The proceedings have not been instituted with a view to have the prestige of this Court vindicated. 19. Section 2(1) of the Contempt of Court's Act defines the 'Civil Contempt' as wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. The essential ingredient is wilful disobedience or breach of an undertaking. 19. Section 2(1) of the Contempt of Court's Act defines the 'Civil Contempt' as wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court. The essential ingredient is wilful disobedience or breach of an undertaking. If immediately; after expiry of three months the applicant had moved this Court for initiating contempt proceedings against the opposite parties, may be it was possible to take a different view. The conduct of the applicants themselves shows that they had a serious doubt about the enforcement of the undertaking. In view of the chose to exercise the right to execute the decree. Finding some difficulties in their way in getting in the decree executed they have resorted to this proceeding. 20. As has been held, contempt proceedings should not be permitted to be used as a thum screw. When there are other remedies available there should be no recourse to contempt action which after all is discretionary. The remedy in contempt should be sparingly used and jealously guarded. Contempt action is not an alternative nor even cumulative remedy to ordinary exaction of decree. Private vengeance cannot be ventilated and the Court should refuse to exercise its discretion to commit for contempt when all the party wanted was execution of a decree. 21. Contempt of Court is not an ordinary proceeding and the question involved is a serious one. These has jurisdiction must be exercised with care and the disobedience must be wilful. The power of committal for contempt must be wielded with greatest care and caution, should be exercised with the greatest reluctance and greatest of anxiety and only with the object of seeing that the dignity and authority of the Court be not impaired. It is only when a clear case of contumacious conduct not explainable otherwise arises, that the contemnor must be punished. The punishment under the law of contempt is called for when the lapse is deliberate and disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged. 22. The punishment under the law of contempt is called for when the lapse is deliberate and disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged. 22. It is further well settled that the conduct of a party may be relevant for the purpose of determining whether the purpose of an application for contempt is a genuine one and the application itself is given to vindicate the cause of jeopardized justice or whether it is given for an ulterior purpose and purports to ventilate a fancied grievance sought to be paraded merely for the purpose of securing the punishment of the other party. The proceedings for contempt of Court cannot be used as a lever to obtain relief in accordance with the decree from the judgment- debtor. These proceedings have not been resorted to uphold the dignity of the Court. The Court acts in a contempt case only to preserve the flow of the steam of justice in its unsullied form and in unstained purity. It is to sub serve. 23. In view of the discussion here-in-above the application lacks merit and not case is made out grant of relief prayed for. The application is accordingly rejected. Notice to opposite party No.1 is discharged.