V. K. GUPTA v. P. K. KHULLAR — 1994 DIGILAW 801 (DEL)

J. K. Mehra,j. ( 1 ) THIS is an application for stay of an order of punishment for civil contempt passed by the single Judge against the appellant. ( 2 ) BY the said order dated 18th July 1994, the appellant was found guilty of having committed contempt of Court, and was sentenced to undergo simple imprisonment for three months and a fine of Rs. 5000. 00 , and in default of the deposit of fine, he was to undergo further simple imprisonment for a period of 10 days. ( 3 ) THE impugned order further directed that in case the appellant handed over vacant possession within 10 days from the date of the impugned order, the penalty imposed under the said order will not operate. ( 4 ) THE main contention for admission of appeal was that under the provisions of Section 12 (3) of the Contempt of Court Act, in the case of civil contempt, the appellant could have been detained in civil prison, but no punishment of imprisonment could be imposed on him. ( 5 ) THE facts leading to the impugned order in brief are that the respondent had occupied the premises in dispute in his capacity as one of the employees of M/s. Karam Chand Thapar and Bros (Coal Sales) Ltd (R. O.) (hereinafter REFERRED TO to as "kct" under lease deed dated 11th March 1975 registered as No-2824 in Additional Book No. 1, at folio No. 3548 at pages 68 to 70 on 25. 7. 1975. ( 6 ) VARIOUS cases were instituted between the parties, some for recovery of arrears of rent, and others for eviction of the said tenant KCT from the premises in dispute wherein the present appellant had also been impleaded as a proforma defendant. In the case for eviction of the appellant and KCT the court had proceeded against exarte, the appellant and was decreed after contest by KCT. ( 7 ) THE appellant did not appear and contest the said action. ( 8 ) THE appellant, after the final disposal of the case, filed an application under Order 9 Rule 13 of Civil Procedure Code for setting aside the exparte order/decree, and in that very application he had also prayed for leave to defend the eviction petition claiming himself to be the tenant. ( 8 ) THE appellant, after the final disposal of the case, filed an application under Order 9 Rule 13 of Civil Procedure Code for setting aside the exparte order/decree, and in that very application he had also prayed for leave to defend the eviction petition claiming himself to be the tenant. It may also be noted that in another proceeding KCT, and not the appellant, was held to be the tenant. A challenge to that finding had failed before this court vide order dated 3. 5. 1993 passed by G. C. Jain, J. ( 9 ) WHILE the proceedings were pending, parties reached a settlement. Statements were recorded whereby the appellant had, inter alia, undertaken to handover peaceful vacant possession of premises in dispute to the respondent on or before 31st August 1993. He also undertook to pay the entire arrears of rent amounting to Rs. l,26,000. 00 by 18. 9. 91. The respondent on his part agreed to accept the appellant as his tenant for this period in place of KCT, and to withdraw all the cases pending against the appellant within 30 days if the appellant made the payment as above. The Respondent further stated that in the even cases were not withdrawn, he was not to remain bound by the undertaking given by him to the Court. ( 10 ) AT the time of hearing it was pointed out that the amount of arrears of rent was not paid within the time stipulated as the cheque for the amount of arrears was returned unpaid on the first occasion, but on representation it was encashed. Counsel for the respondent has drawn our attention to a chart wherefrom we find that there were five proceedings against the appellant initiated by the respondent. It is further pointed out that in all the five cases, necessary applications for withdrawal were moved and the proceedings were withdrawn before the agreed date of vacation of the premises. However, it took considerable time on account of various factors including frequent strikes by the lawyers, but the respondent had done all that he could to withdraw the cases. Thus all that could be done by the respondent had been done. However, it took considerable time on account of various factors including frequent strikes by the lawyers, but the respondent had done all that he could to withdraw the cases. Thus all that could be done by the respondent had been done. Of the 7 cases shown in the list filed with the Memorandum of Appeal, it is clear that two cases were instituted by KCT against the appellant and those could not have been withdrawn by the respondent as those were not instituted by him. ( 11 ) THE appellant failed to hand over the possession on or before 31st August 1993 which resulted in the filing of the application for contempt for breach of undertaking. ( 12 ) IN response to the said application, the appellant filed a reply taking up various pleas. The trial court took note of all the facts and circumstances as well as the evidence produced and came to the considered opinion that the appellant was guilty of civil contempt of court on the appellant s failure to deliver possession to the respondent. ( 13 ) IT is not disputed before us that major change had taken place following the settlement between the parties whereby the appellant who wag not the tenant came to be accepted as the tenant. The question that he was not the tenant stood decided even. in earlier proceedings to which a challenge had failed vide Judgment dated May 3, 1993 of this Court (G. C. Jain, J.) in which as already noted hereinabove KCT were held to be the tenants. The appellant also gained further period of 3 years of peaceful stay in the premises in question. Thus he took full advantage of the settlement and gave an undertaking to the court which was duly accepted by Court. ( 14 ) WE are of the view that by his conduct before the court the Appellant has been successful in delaying the delivery of vacant possession in terms of his undertaking. Prima facie his conduct appears to be in breach of the undertaking. ( 15 ) WE are not expressing any opinion at this stage on in the manner in which the learned single judge has construed the undertaking. We are, however, of the view that so far as the appellant is concerned his undertaking to vacate the premises by a specified date was categorical and ad mitted of no exception. ( 15 ) WE are not expressing any opinion at this stage on in the manner in which the learned single judge has construed the undertaking. We are, however, of the view that so far as the appellant is concerned his undertaking to vacate the premises by a specified date was categorical and ad mitted of no exception. The only rider to that was that the cases should be withdrawn before the premises are vacated so that appellant does not remain saddled with any litigation even after vacating the premises. The Respondent has, in the facts and circumstances of the case, met with his obligations contained in the rider. ( 16 ) COUNSEL for the appellant has Relied on upon the case of Babu Ram Gupta Vs. Sudhir Bhasin reported as 1979 SCR 685 . That case has no bearing on the facts of the present case. The Hon ble Supreme Court was dealing with the question of implied undertaking and had laid down that it was not open to court to assume an implied undertaking when there is none on record. The Hon ble Supreme Court laid down that in contempt matters, it has to be an express undertaking to the court, in case, there is an undertaking given to the opposite party, breach thereof is committed, the remedy lies with the opposite party in taking up appropriate proceedings against the person who is in breach of the conditions. Such is not the case here. Here the appellant has given an undertaking to the court itself, statements were recorded in Court, and is in breach of that undertaking. ( 17 ) IN that case Hon ble Supreme Court has quoted with approval, inter- alia, the following passage from its decision in The Aligarh Municipal Board and others Vs. Ekka Tanga Mazdoor Union and others, reported as 1970 (3) SCR 98 - ". . . . . . . . . . . . CONTEMPT proceeding against a person who has failed to comply with the Court s order serves a dual purpose: (1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. . . . . . . . CONTEMPT proceeding against a person who has failed to comply with the Court s order serves a dual purpose: (1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. It must also be clearly understood in this connection that to employ a subterfuge to avoid compliance of a Court s order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt. " THE Hon ble Supreme Court went on to further observe as under:- " In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making afalse representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the coure of justice and brings into disrepute the judicial institution. " ( 18 ) WE have already observed that in the present case, there was a specific undertaking given by the appellant which was recorded and accepted by the Court and there was no vagueness about it. ( 19 ) IN Noorali Babul Thanewala Vs. Sh. K. M. M. Shetty and others reported as AIR 1990 SC 464 , the Hon ble Supreme Court after noticing the facts leading to the breach of undertaking held that "the order passed on an undertaking of one of the parties, amounts in substance to an injunction restraining that party from acting in breach thereof" and further held that "breach of an undertaking given to court by or on behalf a party in civil proceedings is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. . . . . . . . . . . . . . . . . . . . . The remedy in such circumstances may be in the form of a direction to the contemner to purge the contempt or a sentence of imprisonment or fine or all of them. . . . . . . . . . . . . . . . . . . . . The remedy in such circumstances may be in the form of a direction to the contemner to purge the contempt or a sentence of imprisonment or fine or all of them. " In that case, the Hon ble Supreme Court, apart from imposing punishment also directed the contemnor to deliver vacant possession of the premises forthwith to the petitioner and directed the District Magistrate, Thane, to evict all those who are in physical possession of the property includinig the 2nd respondent and his men and if necessary with police help and give vacant possession of the premises to the petitioner forthwith. ( 20 ) IN the present case, however, the Single Judge imposed only the punishment, but had not ordered delivery of peaceful vacant possession or restoration of the possession to the aggrieved party, which in our opinion, the Single Bench should have also directed rather than to leave it to the appellant that in case he vacates within 10 days of the impugned order, the misconduct/offence of contempt would be deemed to have been mitigated. ( 21 ) TO the same effect are the decisions of this Court in Lila Wanti Vs. C. P. Prabhakar reported as 1980 Rajdhani Law Reporter 465, Saleemuddin and another Vs. Sharfuddin and others reported as AIR 1980 Delhi 39, wherein apart from awarding the maximum punishment, the Court also ordered delivery of possession with police aid, if necessary. In another decision of this Court by one of us (Mahinder Narain, J.) in the case of Brij Bhushan ]aidka Vs. Smt. Sneh Verman and another reported as 1991 (2) RCR 195, where also the delivery of possession was ordered. Yet another decision of this Court in the case of Smt. Satya Wati Vs. O. N. Sehgal reported as 1986 (2) ILR 60, wherein after noticing the fact of breach of undertaking, the court ordered punishment of simple imprisonment for a term of one month and in addition to a fine of Rs. 2000. 00 ordered the Addl. Rent Controller concerned to issue warrants of possession with respect to the possession immediately and get the possession delivered to the petitioner in that case. ( 22 ) IN the case of Phonographic Perfornwnce Ltd. Vs. 2000. 00 ordered the Addl. Rent Controller concerned to issue warrants of possession with respect to the possession immediately and get the possession delivered to the petitioner in that case. ( 22 ) IN the case of Phonographic Perfornwnce Ltd. Vs. Amusement Caterers (Peckham) Ltd. , (1963) 3 All E. R. 493 (2) the two-fold character of civil contempt has been spelt out. This was a case in which a notice of motion was taken out by the plaintiffs by which they asked the property of the defendant be sequestered and the defendant s Directors be committed to prison and their property sequestered for their contempt of the court in wilfully disobeying an order made in the action. The learned Judge after reviewing the course of events and of the proceedings, REFERRED TO to Halsbury s Law of England (Volume VIII 3rd Edition) and observed that where there has been wilful disobedience to an order of the court and a measureof contumacy on the part of the defendants, then civil contempt, "bears a twofold character, implying as between the parties to the proceedings merely a right to exercise" and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the court in the public interest. " ( 23 ) SINCE the main question of order of imprisonment in place of detention in civil prison has not been argued at full length before us, the main appeal is not being disposed of. But we consider it in the interest of justice and keeping in view the fact that breach of undertaking has taken place, to order eviction of the appellant from the premises in dispute, if necessary by breaking open of the locks and with the police help, and restoration of the peaceful vacant possession to the respondent forthwith. We order accordingly. ( 24 ) IN view of the pendency of the main question on which the appeal was admitted, the sentence of imprisonment shall remain stayed till the disposal of the appeal. ( 25 ) IN view of facts of the case, it will also be in the interest of justice to expedite the hearing of this appeal. As such, we direct that this appeal be listed for hearing in the week commencing 6th February 1995. ( 25 ) IN view of facts of the case, it will also be in the interest of justice to expedite the hearing of this appeal. As such, we direct that this appeal be listed for hearing in the week commencing 6th February 1995. C. M. is disposed of in the above terms with no order as to costs.