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2001 DIGILAW 65 (HP)

RATTAN CHAND v. RAM LAL (RAM PAL)

2001-04-27

KAMLESH SHARMA

body2001
JUDGMENT Ms, Kmmlesh Sharma J,—The petitioner has filed this petition with the prayer that the respondents may be held guilty of civil contempt for wilfully disobeying the order dated 5.3.1999 passed by this Court in Civil Revision Petition No. 9 of 1999 titled Ram Pal and another v. Rattan Chand, and also for wilful breach of the undertaking given in pursuance of the said order. 2. The brief facts of the case are that the petitioner is the landlord and respondents were the tenants of the premises, that is, the shop situated at Mehatpur, Tehsil and District Una. On the grounds that the shop in dispute is in dilapidated condition and cannot be repaired without being vacated and also that the respondents-tenants were in arrears of rent, eviction order was passed by the Rent Controller (I), Una on 29.11.1997, which was affirmed by the Appellate Authority (District Judge, Una) and the appeal filed by the respondents-tenants was dismissed on 1.12.1998. The revision petition filed against the order of the Appellate Authority met with the same fate and the eviction order against the respondents-tenants was affirmed. However, with the consent of the parties, who were present in person, the execution of the eviction order dated 29.11.1997 passed by the Rent Controller and affirmed by the Appellate Authority by its order dated 1.12.1998, was stayed till 31.3.2000 on the following conditions:— "1. The petitioners-tenants will hand over vacant and peaceful possession of the demised shop to the respondent-landlord on or before 31.3.2000. 2. The rent of the shop in dispute is Rs. 120 p,m. as held by Rent Controller. The arrears of rent w.e.f. November, 1998 to 3L3.1999 i.e. Rs. 600 has been paid by the petitioner-tenant No. 1 to respondent-landlord in the Court. Future rent w.e.f. April, 1999 to 31st September, 1999 will be paid by the petitioners-tenants on or before 10th October, 1999 and from 1st October, 1999 to 31st March, 2000 on or before 31st March, 2000. 3. 600 has been paid by the petitioner-tenant No. 1 to respondent-landlord in the Court. Future rent w.e.f. April, 1999 to 31st September, 1999 will be paid by the petitioners-tenants on or before 10th October, 1999 and from 1st October, 1999 to 31st March, 2000 on or before 31st March, 2000. 3. The petitioners tenants will not pray for further time on any ground whatsoever." 3, The respondents-tenants were directed to file separate affidavits within one month from the date of the order stating, agreeing and undertaking as follows :— "(a) They alone in their individual capacity are in sole and exclusive possession of the demised shop and that the members of their family, and/or servant(s), if any, are working with them with their permission and that they have^ no joint or independent interest in the demised shop. (b) They will not part with the possession of the demised shop or any part thereof in favour of any person nor will they induct any one in the shop in dispute or any portion thereof or permit any person to work with them other than a member of their own family. (c) They will abide by conditions No. 1, 2 and 3 imposed in the previous paragraphs and hand over the vacant and peaceful possession and pay or deposit the rent accordingly. (d) All the adult members of the family of the petitioners-tenants will also file within a period of one month from today an affidavit agreeing and confirming what is stated in the petitioners affidavit to be filed as hereinabove ordered and undertake that they will not raise any obstruction or objection against the petitioners compliance with their undertaking or against the execution, if any, of the eviction order in respect of the shop in dispute." 4. The respondents-tenants were asked to file copies of the affidavits before the Rent Controller (I), Una with advance copies to the learned Counsel for the petitioner-landlord. This Court had categorically ordered that, "In case of breach of any one or more of the aforesaid conditions/undertakings/orders the stay of further proceedings in the execution petition shall stand automatically vacated and the person(s) committing the breach of the undertaking(s), which shall be treated as having been duly accepted if and when filed, will be liable to be dealt with in accordance with law." 5. In pursuance of order dated 5.3.1999 respondents tenants Ram Pal and Parkasho Devi, and Neelam Kumar wife of Ram Pal filed separate affidavits on 5.4.1999. 6. On 16.8.1999 the petitioner-landlord filed an application in the execution petition with the prayer that he may be put in possession of the shop in dispute by evicting the respondents-tenants on the ground that one of the adult members, namely, Madan Lal brother of respondent-tenant Ram Pal had not filed affidavit as per order dated 5.3.1999. The Executing Court declined to issue warrant of possession and adjourned the case to 31.5.2000 on the ground that there was no prima facie evidence on record that Madan Lal was one of the adult members of the family of the respondents-tenants and also that the remedy available to the petitioner-landlord was to bring this fact to the notice of this Court and get the stay of execution of eviction order vacated. Thereafter the petitioner-landlord has filed another application on 1.4.2000 before the Executing Court for issuing warrant of possession as the execution of eviction order was stayed till 31.3.2000 subject to the conditions stated in the order dated 5.3.1999, which were not fulfilled. 7. The petitioner landlord has also filed the present contempt petition complaining that the respondents-tenants have wilfully disobeyed order dated 5.3.1999 and breached the undertaking given by them in their affidavits 5.4.1999, inter alia, by not handing over vacant possession of the shop in dispute on or before 31.3.2000. Respondents-tenants 1 and 2 have filed reply to the petition on the affidavit of one of them, namely, Ram Pal. They have raised preliminary submissions that the present contempt petition is not maintainable in view of the pending execution proceedings for issuance of warrant of possession in which Madan Lal brother of respondent-tenant Ram Pal has filed objections under Order 21 Rules 97 and 98 CPC claiming that he is in possession as one of the heirs of deceased tenant, who was his father, in the shop in dispute with whom he was residing at the time of death and was running business in the shop in dispute. It is also alleged that since the Executing Court is seized of the matter wherein the status and nature of possession of Madan Lal would be determined, the present proceedings under the contempt of Courts Act may be dismissed. 8. It is also alleged that since the Executing Court is seized of the matter wherein the status and nature of possession of Madan Lal would be determined, the present proceedings under the contempt of Courts Act may be dismissed. 8. In reply on merits it is stated that they have deposited the arrears of rent upto date despite not being in possession of the shop in dispute. It is further stated in para 3 that:— “......It is worthwhile to submit here that after the decision of this Honble Court there was a dispute amongst the respondents and Shri Madan Lal alleging that the replying respondent got a collusive eviction order to defeat his right and moreover he is in possession since the time of his father and was residing and running the business with him......" And in para 4:— “......It is submitted that Shri Madan Lal is in present occupation and the status and character of his possession is being determined by the executing court which proceedings are like of a suit and the order of such proceedings amounts to a decree. Till the pendency of the execution proceedings the present petition is premature........" 9. In rejoinder to the reply, the petitioner landlord has reiterated the averments made in the petition and denied the contrary statements made in the reply. It is stated that either the affidavit filed by respondents-tenants wherein they had categorically stated that they were in possession of the shop in dispute, is wrong or the present reply affidavit is false wherein they have asserted that Madan Lal has been in possession since the time of his father and there was no question of their handing over the possession to the petitioner-landlord. It is further stated that Madan Lal had not filed affidavit in pursuance of the order dated 5.3.1999 though he is one of the adult members of the family of the respondents-tenants. It is asserted that as per the knowledge of the petitioner-landlord the respondents-tenants are still in possession of the shop in dispute and are flouting the undertaking given by them by not putting the petitioner-landlord in possession of the shop in dispute. 10. In view of the stand taken by respondents-tenants 1 and 2 in their reply-affidavit this Court impleaded Madan Lal as party respondent No. 3 by order dated 17.8.2000. 10. In view of the stand taken by respondents-tenants 1 and 2 in their reply-affidavit this Court impleaded Madan Lal as party respondent No. 3 by order dated 17.8.2000. In his reply-affidavit Madan Lal respondent No. 3 has also taken preliminary objections that the present contempt petition is not maintainable since he is in possession of the shop in dispute for which collusive eviction order was obtained by the petitioner-landlord and respondents-tenants 1 and 2, of which he had come to know in March, 2000 when the petitioner-landlord proclaimed in Mehatpur Bazar that he would take possession of the shop in dispute within a few days. Thereafter he made enquiries and filed objections under Order 21 Rules 97, 98, 101, 103 read with Section 151 CPC before the Executing Court on the ground that he was running Karyana business in the shop in dispute alongwith his father and was also residing with him, whereas, respondent-tenant Ram Pal was residing at Una and was doing separate business as he was not having cordial relations with his father, the deceased-tenant. In support of his allegation that collusive eviction order was obtained by the petitioner-landlord and respondent-tenants 1 and 2, it is stated that both the petitioner-landlord and respondent No. 1 tenant were accused in a criminal case under Sections 147, 148, 149,307, 323, 365 IPC and under Section 27 of the Arms Act and convicted by the trial Court, though in appeal the conviction of respondent-tenant Ram Pal was set aside, whereas, that of the petitioner-landlord was upheld vide judgment dated 10.1.1997 passed by this Court. In reply on merits it is stated that since he was not party to the eviction petition, there was no question of his filing affidavit in pursuance to order dated 5.3.1999. It is denied that he has disobeyed any order of this court and breached any undertaking given to this Court. . 11. In rejoinder to the reply of respondent No. 3 it is, inter alia, stated that from the stand taken by the respondents it is clear that the respondents-tenants 1 and 2 had parted with the possession of the shop in dispute in favour of respondent No. 3 on or after 31.3.2000 in utter violation of the order dated 5.3.1999 passed by this Court. It is further stated that had respondent No. 3 been in possession of the shop in dispute, he would have come forward to raise objections in the eviction proceedings as he must be in know thereof. The petitioner-landlord has placed on record letter dated 4.9.2000 from the Assistant Engineer, Electric Sub Division, HPSEB, Mehatpur, Una received by him demanding payments in respect of electric meter installed in the shop of Ram Pal to show that it was he who has been in possession of the shop in dispute. A copy of the Jamabandi for the year 1996-97 in respect of the land over which the shop in dispute is situated has also been filed wherein respondent-tenant Ram Pal has been shown as the tenant. A copy of certificate under the Himachal Pradesh General Sales Tax Act showing respondent No. 3 Madan Lal running a separate shop in the name and style of Madan Lal Manohar Lal in Mehatpur Bazar, District Una has also been filed alongwith the rejoinder. 12. This Court has heard learned Counsel for the parties and gone through the record. After scanning the material on record this court has no hesitation to hold that respondents No. 1 and 2 Ram Pal and Smt. Parkasho Devi have wilfully disobeyed the order dated 5.3.1999 and breached the undertaking given by them in their separate affidavits dated 5.4.1999. The perusal of order dated 5.3.1999 makes it clear that in order to get stay of execution of order dated 29.11.1997 passed by the Rent Controller, Una and affirmed by the Appellate Authority vide its order dated 1.12.1998, the respondents-tenants 1 and 2 have filed separate affidavits dated 5.4.1999 wherein they have categorically stated in para 2 that :— "2. That I also state, agree and undertake as under :— (a) That I alone in my individual capacity is in sole and exclusive possession of the demised shop and that the members of my family and or servant(s) and sons, if any, working with me with my permission and that he has no joint or independent interest in the demised shop. (b) That I shall not part with the possession of the demised shop or any part thereof in favour of any person nor shall I induct any one in the shop in dispute or any portion thereof permit and person to work with me other than a member of my own family (c) That I shall abide by conditions No. 1, 2, 3 imposed by the Honble High Court in the Judgment/order dated 5.3.1999 in Cr. No. 9/99 mentioned at paragraphs Nos. (i), (ii) and (iii) of |his affidavit and handover the, vacant and peaceful possession and pay or deposit the rent accordingly." 13. Now in their reply affidavit they have taken a defence that after the order dated 5.3.1999 passed by this Court respondent No. 3 Madan Lal raised the dispute that the petitioner-landlord and respondents-tenants 1 and 2 got a collusive eviction order to defeat his right. He has claimed himself to be in possession of the shop in dispute wherein he has been running his business since the time of his father. Nowhere in the reply-affidavits the respondents-tenants 1 and 2 have alleged that the stand of respondent No. 3 is wrong and he has never been in possession of the shop in dispute. Joint reading of reply-affidavit dated 10.8.2000 and earlier affidavits dated 5.4.1999 makes it clear that the conduct of respondents-tenants is dubious and they have tried to hoodwink the court. In the affidavits dated 5.4.1999 the respondents-tenants 1 and 2 have stated that they in their individual capacity were in exclusive possession of the shop in dispute and the members of their family or servants, if any, were working with them with their permission and had no joint or independent interest in the demised shop. They have also undertaking that they will not part with the possession of the shop in dispute in favour of any person or induct any one or permit anyone to work with them in the shop. Now the claim of respondent No. 3 that he has been in possession of the shop and the silence of respondents-tenants 1 and 2 leaves no doubt that they have wilfully disobeyed the order dated 5.3.1999 and breached their undertaking given by way of affidavits dated 5.4.1999. Now the claim of respondent No. 3 that he has been in possession of the shop and the silence of respondents-tenants 1 and 2 leaves no doubt that they have wilfully disobeyed the order dated 5.3.1999 and breached their undertaking given by way of affidavits dated 5.4.1999. There does not seem to be any collusion between the petitioner-landlord and respondent-tenant Ram Pal as alleged by respondent No. 3 but there is definitely collusion between respondents-tenants 1 and 2 and respondent No. 3 to avoid the eviction of respondents tenants 1 and 2 from the shop in dispute, may be at the risk of committing contempt of this Court. Had respondent No. 3 been in possession of the shop in dispute the petitioner-landlord would have filed eviction petition against him or he would have come forward to contest the eviction petition, as it cannot be believed that he being brother of respondent-tenant Ram Pad and son of respondent tenant Srnt. Parkasho Devi and also running his business in the shop in dispute, as alleged by him, did not know about the eviction proceedings pending from 30.6.1992. Moreover, had there been collusion between the petitioner-landlord and respondent-tenants 1 and 2, the latter would not have fought the litigation upto this Court and resisted it so seriously. 14. Therefore, this Court has no hesitation to hold that respondents-tenants 1 and 2 have committed civil contempt by wilfully disobeying the order dated 5.3.1999 of this Court and wilfully breaching the undertaking given by them by way of their affidavits dated 5.4.1999. 15. The next question arises that what punishment should be awarded to respondents-tenants 1 and 2? In the facts and circumstances, as discussed hereinabove, it is a fit case to award maximum punishment as provided under Section 12 of the Contempt of Courts Act. Accordingly, respondent-tenant No. 1 is awarded punishment of simple imprisonment for a term of six months and also fine of Rs. 2,000. But so far respondent-tenant No. 2 is concerned, she is an old woman of more than 80 years of age and being illiterate she might have given the undertaking at the instance of respondent-tenant No. 1 who is none else but her son. She may also not be knowing the consequences of her giving the undertaking. Therefore, the ends of justice would be met if she is awarded punishment of fine of Rs. 2,000. She may also not be knowing the consequences of her giving the undertaking. Therefore, the ends of justice would be met if she is awarded punishment of fine of Rs. 2,000. So far respondent No. 3 is concerned, since he was not party in the Civil Revision Petition No. 9 of 1999 and has not given any undertaking, he cannot be held guilty of contempt. The notice issued to him is discharged. The contempt petition is disposed of. CMP No. 4/2001. Dismissed as infructuous. Petition disposed of.