VIRENDRA NATH SORAL v. SAJJAN KUMAR JAIN — 1995 DIGILAW 1061 (RAJ)

Judgment ARUN MADAN, J. ( 1 ) THIS contempt petition filed on behalf of the petitioner, arises out of breach of undertaking dated 4-4-1995 furnished by the respondent-contemnor before this Court in Civil Review Petition No. 36 of 1995 arising out of S. . B. Civil First Appeal No. 57 of 1995 decided on 23-3-1995. The petitioner-plaintiff filed a suit for recovery of arrears of rent and eviction against the contemnor Sajjan Kumar Jain and M/s. Goyanka Exhibitors Pvt. Ltd. in the Court of District Judge, Jaipur City, Jaipur. The said suit was decreed on 13-1-1995 in accordance with law. ( 2 ) IT has been contended on behalf of the petitioner that a suit was filed in respect of a residential premises No. D-23, Sarswati Marg, Bani Park, Jaipur against the defendant-contemnor for his eviction on the ground that the suit premises were taken on rent @ Rs. 7000/- p. m. for the purpose of running guest house and office. Eviction was sought on the ground that the contemnor had violated the condition of the tenancy and the premises were not kept in proper condition and the arrears of rent w. e. f. 10th September, 1990 were due against the contemnor. It was further contended that the premises in question had been sub-let by the contemnor to M/s. Goyanka Exhibitors by parting with its possession during the subsistence of tenancy in violation of the terms of the agreement. Eviction was also sought on the ground of personal bona fide necessity. ( 3 ) AFTER framing the issues and hearing both the parties, learned trial Court vide its judgement and decree dated 13-1-1995 decreed the suit in favour of the plaintiff-petitioner. Being aggrieved by the aforesaid judgement and decree the defendant-contemnor filed an appeal in this Court which was registered as Regular First Appeal No. 57/95 and the said appeal was listed for hearing on 10th March, 1995 when the record was called for. The said appeal was finally heard and rejected by this Court vide its judgement dated 23rd March, 1995. Thereafter the appellant-contemnor preferred a review which was registered as S. B. Civil Review Petition No. 36/95. The said appeal was finally heard and rejected by this Court vide its judgement dated 23rd March, 1995. Thereafter the appellant-contemnor preferred a review which was registered as S. B. Civil Review Petition No. 36/95. During the course of hearing of the review petition an under-taking was given to this Court on 4-4-1995 by the contemnor to the effect that in the event of rejection of his review petition on merits by this Court, he will be bound by the decree and that the contemnor shall pay the decretal amount to the decree-holder-petitioner. Keeping this aspect of the matter in view this Court vide its order, dated 4-4-1995 had directed that it shall be open to the contemnor that if he intends to prefer a special appeal he will be at liberty to do so and while relying upon the undertaking given by the contemnor-respondent herein, stayed the execution of the decree by its order dated 4-4-1995. The undertaking dated 4-4-1995 of the contemnor was to the following effect :"the counsel for the petitioner have stated that in case of rejection of the review petition the petitioner shall make the payment of decreetal amount to the non-petitioner". IN view of the aforesaid undertaking, the earlier orders passed by this Court were kept in abeyance till 14-4-1995. The review petition was rejected by this Court by its order dated 24-4-1995. A special appeal was preferred by the contemnor which was registered as D. B. Special Appeal No. 23/95. During the course of hearing of the said appeal on 4-4-1995 the contemnor handed over a cheque of Rupees 1,00,000/- (One lakh) to the learned counsel for the petitioner against rent/damages which were due against the contemnor. It was specifically directed by this Court that the above amount shall be adjusted against the dues and subject to the decision of the special appeal. The matter was directed to be heard on 16th May, 1995 with a direction to the parties to maintain status quo regarding possession of the suit property. On 16th May, 1995 a request was made by the learned counsel for the contemnor that his possession be protected for some time so as to enable him to approach the Apex Court with a view to challenge the legality and validity of the judgements and orders passed in the proceedings. On 16th May, 1995 a request was made by the learned counsel for the contemnor that his possession be protected for some time so as to enable him to approach the Apex Court with a view to challenge the legality and validity of the judgements and orders passed in the proceedings. Keeping in view the facts and circumstances of the case six months time was granted to the contemnor on usual terms that he shall pay the amount of rent/mesne profits regularly to the petitioner. ( 4 ) IN the meanwhile an appeal was filed before the Apex Court by the contemnor vide S. L. P. (Civil) No. 18168/1995 against the order passed by this Court on 16-5-1995 which was rejected by the Apex Court vide order dated 25th September, 1995 thereby maintaining and affirming the order, dated 16th May, 1995 passed by this Court in the aforesaid appeal. ( 5 ) THIS contempt petition was filed by the petitioner in this Court on 25th July, 1995 in view of violation of the undertaking given by the contemnor on 4-4-1995. It has been stated in the contempt petition that the contemnor very well knew the implications of the undertaking and the assurance given by him during the course of hearing which have been recorded by this Court in its order dated 4-4-1995 and that the decretal amount exceeds to the tune of Rs. 4,04,060/- (Four lacs, four thousand and sixty) against which only a sum of Rs. 1,00,000/- had been paid by the contemnor to the petitioner. Thus, knowingly and wilfully the contemnor had made a breach of undertaking given by him to this Court on 4-4-1995 which came to be rejected by this Court on 14-4-1995. 5a. A review was also preferred by the contemnor against the order of this Court in First Appeal No. 57/95 vide Civil Review Petition No. 36/95 which was also heard and dismissed by this Court by its order dated 24-4-1995. ( 6 ) DURING the course of hearing learned counsel for the petitioner has contended at the bar that the contemnor was well aware of the implications of the undertaking and the assurance given by him not only to the petitioner but also to this Court which was binding on the contemnor. In view of the undertaking and in partial compliance of the decree the contemnor had made payment of Rs. In view of the undertaking and in partial compliance of the decree the contemnor had made payment of Rs. 1,00,000/- to the petitioner by way of a cheque before the Division Bench of this Court while hearing the special appeal on 4-5-1995 but the rest of the payment had not been made by the contemnor and subsequently in view of the mala fide intentions with a view to defeat the cause of justice he deliberately sent a money order of Rs. 2000/- on false ground that the rent of the suit premises was Rs. 2000/- only against the agreed amount of Rs. 7000/-, in acknowledgement of which rent had been paid earlier. The said money order of Rs. 2000/was not accepted by the petitioner on account of the fraud which had been perpetuated by the contemnor wilfully in disobedience of the decree. Thus knowing fully well the implications of the undertaking and the assurance the contemnor has not only wilfully made the breach of the undertaking given to this Court but has also tried to defraud the petitioner with a view to undermine the dignity of the Court which is highly contemptuous. As a result of the undertaking the petitioner had also been prevented from pressing the execution of the decree in the trial Court. It has been further stated that the petitioner has been put to great hardship as a result of violation of undertaking dated 4-4-1995 given to this Court on account of which execution of decree was kept in abeyance which is sufficient to punish the contemnor by this Court in view of the wilful disobedience of its order and the undertaking recorded on 4-4-1995. During the course of hearing it had transpired that the contemnor had parted with the possession of the suit premises in favour of some third party and in order to verify this position Smt. Yamini Agrawal Advocate of this Court was appointed as Local Commissioner to visit and inspect the suit premises - D-23, Sarswati Marg, Bani Park Jaipur and to submit her report regarding the factum of possession and the nature of activities which were being carried out by the contemnor in the suit premises. In compliance with the direction of this Court the local commissioner inspected the suit premises on 15-11-1995 in the presence of the petitioner as well as the learned counsel for the petitioner. In compliance with the direction of this Court the local commissioner inspected the suit premises on 15-11-1995 in the presence of the petitioner as well as the learned counsel for the petitioner. On 20-11-1995 the suit premises were again inspected by the learned counsel for the parties in the presence of the petitioner as well as the contemnor. The Commissioner in her report has mentioned that since the doors of the premises were found bolted from inside and not opened, the inspection could not be carried out inside the suit premises and there was no response to the repeated call bells. At the entrance of the suit premises she noticed a board bearing the caption "panditji Matrimonial Bureau established 1981 shadi-Ghar D-23 Sarswati Marg, Bani Park, Jaipur". This fact is also borne out from the photographs as well as the negatives filed along with the report of the Commissioner. ( 7 ) FROM the perusal of the report it is apparent, that the very attitude of the contemnor was not only to flout and disregard the earlier orders passed by this Court but also to part with the possession of the suit premises to some third party which he has successfully done by wilfully inducting a third party in the suit premises in contempt of the orders of this Court, as referred to above. ( 8 ) ON 17-11-1995 the contemnor failed to appear before this Court in pursuance of the contempt notice which was duly served on him. Instead of complying with the said order by making his presence before this Court, at the first instance a request was made on behalf of the contemnor by his counsel Shri Hanuman Chaudhary to condone his presence, since there was no violation of the undertaking dated 4-4-1995 nor there was any wilful disobedience or breach of the earlier orders of this Court as well as of the undertaking. It is a cardinal principle of law that whenever a notice of contempt is issued and served on the contemnor he has to make his presence before the concerned Court at the first instance and it is only thereafter that he can request the Court to purge himself from the contempt. It is a cardinal principle of law that whenever a notice of contempt is issued and served on the contemnor he has to make his presence before the concerned Court at the first instance and it is only thereafter that he can request the Court to purge himself from the contempt. Instead of adopting that course, which even on the merits of the case, is not open to him, the contemnor had surruptiously instead of handing over the possession of the suit premises to the petitioner had wilfully inducted some third party into the suit premises as referred to above. Bailable warrants were accordingly issued to the contemnor in the tune of Rs. 10,000/- with one surety in the like amount for procuring his presence in this Court on 20-11-1995 to the satisfaction of the Dy. Registrar (Judl.) of this Court. On 20-11-1995 the contemnor appeared and stated that he is ready and willing to hand over the possession of the suit premises to the petitioner on the said date and the keys of the suit premises were handed over to Shri P. C. Jain, learned counsel for the petitioner. With regard to the statement of accounts between the parties, it was directed that the petitioner will furnish the statement of accounts to the contemnor who will verify the position and inform this Court by the next date i. e. , 5-12-1995. Undertaking was given to this Court by learned counsel for the contemnor that whatever amount is found due on account of arrears of rent, will be paid to the petitioner positively by the next date. Instead of complying with this undertaking by 5-12-1995 learned counsel for the contemnor appeared alongwith the contemnor in person and contested the orders passed by this Court that the contemnor was not bound to comply with any such direction and nor he was bound by any undertaking furnished to this Court on 4-4-1995. ( 9 ) IN reply to the contempt petition it has been contended that the receipt regarding handing over the possession of the suit premises of the petitioner was duly issued but he is not bound to hand over the possession of the whole of the plot in question, since the remaining portion of the premises is subjudice before the Civil Court for which the contemnor is not concerned at all. ( 10 ) AFTER hearing learned counsel for the parties and examining their rival claims and contentions I am of the considered opinion that the contemnor has adopted the very contemptuous attitude that this Court has no jurisdiction to go into the question of payment of decretal amount to the petitioner which is apparent from the statement made in para 5 of the reply to the contempt petition that the question of giving any undertaking regarding payment of arrears of decretal amount to the petitioner does not arise as it is not a subject matter of the contempt petition and beyond the purview of undertaking given to this Court on 4-4-1995. He has further stated in the application filed under Section 151, C. P. C. for retrification/amendment of the order dated 20-11-1995 that the question of furnishing any undertaking to this Court for payment of decretal amount does not arise since the matter is subjudice before the First Appellate Court i. e. Addl. District Judge No. 7, Jaipur City, Jaipur in which process of execution has already commenced. This statement itself is contrary to the record, since the process of execution had to be kept in abeyance by the trial Court in view of the appeal, review as well as the special leave petition before the Supreme Court which all have been dismissed. 10a. After hearing learned counsel for the parties and after examining their rival claims and contentions I am of the considered opinion that breach of undertaking given to this court is a serious matter and itself amounts to contempt of court. I am further of the opinion that law has been well settled by the Apex Court that a party giving undertaking to the court based on implications or assumptions which are false to its knowledge is guilty of misconduct amounting to contempt of court within the ambit of Section 2 of the Contempt of Courts Act, 1971 (for short "the Act") as so held in Dr. (Mrs.) Roshan Sam Joyee v. S. R. Cotton Mills Ltd. AIR 1990 SC 1881 : (1990 Cri LJ 1770 ). I am further of the opinion that breach of undertaking in a consent decree has to be seriously dealt with since it has implications of far reaching consequence. (Mrs.) Roshan Sam Joyee v. S. R. Cotton Mills Ltd. AIR 1990 SC 1881 : (1990 Cri LJ 1770 ). I am further of the opinion that breach of undertaking in a consent decree has to be seriously dealt with since it has implications of far reaching consequence. ( 11 ) DURING the course of hearing Shri Hanuman Chaudhary, learned counsel for the contemnor has not advanced any argument to indicate the mitigating circumstances in favour of the contemnor but has taken a very surprising stand that his client is not bound by any undertaking furnished to this court on previous occasions. I am further of the opinion that the provisions of Section 12 of the Act are at once attracted and the maximum punishment which is provided under the said provision is simple imprisonment for a term which may extend to six months or with fine which may extend to Rs. 2000/- or with both. In view of the above discussions the application for rectification/amendment in the order sheet dated 20-11-1995 moved by the contemnor is rejected. ( 12 ) I accordingly convict the contemnor to undergo simple imprisonment for six months and a fine of Rs. 2000/- and in the event of default in payment of fine to further undergo simple imprisonment for one month. The contemnor be taken into custody forthwith and sent to Central Jail, Jaipur to undergo the imprisonment as indicated above. In the event of the contemnor complying with the undertaking furnished to this court on 4-4-1995, it shall be open to him to move this court in accordance with law. ( 13 ) AFTER pronouncement of the order in the open court the contemnor has moved an application for granting time of 15 days for filing appeal and also for stay of the impugned order. Keeping in view the facts and circumstances of the case and highly contemptuous attitude of the contemnor I find no merit in the application and the same is rejected. Application allowed.