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2004 DIGILAW 802 (DEL)

MOHD. DAWOOD v. SHABEER AHAMED

2004-09-23

C.K.MAHAJAN

body2004
( 1 ) THE petitioners had filed eviction petition being Suit No. E-247/88 against the respondent on the ground that they bona fide require the premises for their residence and for the residence of their family members dependent upon them as they did not have any other reasonable, suitable and alternative accommodation for their living. The respondent denied ownership of the petitioners or their predecessor- in-interest. Mohd. Yahya s/o Abdul Ghani was claiming the ownership. He took the defence that the premises were taken on rent by his father Mr. Abdul Hamid. After his death, all the legal heirs became tenants. The three brothers of the respondent were not joined, therefore, the petition was bad for their non-joinder. The Additional Rent Controller held that father of the respondent was never a tenant. The respondent alone was a tenant. Therefore, there was no question of his brothers inheriting the tenancy. The petition/suit was however dismissed by order dated 7th December, 1993 as the petitioners failed to prove their bonafide requirements. Against that order the petitioner filed Civil Revision No. 142/94. During the pendency of civil revision, the respondent No. 3 sought time for vacating the premises. He gave an undertaking to the Court that he would vacate the suit premises and hand over vacant and peaceful possession of the suit premises to the petitioner on or before 30th April,2003. He further undertook to pay the arrears of rent on or before 31stdecember, 2000 and to pay the future rent/occupation charges on or before the 10th day of each succeeding month. Further he undertook not to create any third party interest in the suit premises and to making the suit premises in a proper and habitable condition. The undertakings were accepted by order dated 18th October, 2000 passed in CR No. 142/94. ( 2 ) THE petitioner alleges that despite the undertaking given, the respondent failed to hand over vacant and peaceful possession of the premises to the petitioner. The respondent further failed to pay the rent of April, 2003 amounting to Rs. 55/ -. ( 3 ) IN reply, the respondent stated that he had complied with undertaking dated 18th October, 2000 and had already vacated the premises about two years back and shifted along with his entire family members at Mohalla Mebathiain Pipal wali Masjid, 10/332, Dadri (Gautam Budh Nagar)-203207. 55/ -. ( 3 ) IN reply, the respondent stated that he had complied with undertaking dated 18th October, 2000 and had already vacated the premises about two years back and shifted along with his entire family members at Mohalla Mebathiain Pipal wali Masjid, 10/332, Dadri (Gautam Budh Nagar)-203207. ( 4 ) IN the rejoinder, the petitioners stated respondent and his family members were residing in the suit premises and rent receipts were issued to the respondent on 15th February, 2001,10th April, 2001,2nd September, 2001,7th June, 2002 and 11th March, 2003 towards arrears and future rent upto March, 2003. ( 5 ) THE respondent has filed an additional affidavit wherein it is stated that respondent had left the premises in early August, 2002. However, he paid the rent upto March, 2003 as he was under the bonafide belief that he was obliged to pay rent upto March, 2003 as per the undertaking. ( 6 ) I have heard learned Counsel for the parties. ( 7 ) DURING the course of hearing, Counsel for the respondent conceded that vacant and peaceful possession of the premises was not handed over to the petitioner. ( 8 ) IN terms of the undertaking, the respondent was required to hand over vacant and peacef ulpossession of the premises by 30th April, 2003. The respondent failed to do so. Thus, there is a breach of undertaking given by the respondent of this court on 18th October, 2000. ( 9 ) THE Supreme Court in the case of Noorali Babul Thanewala v. K. M. M. Shetty, air 1990 SC 464 , observed as under: "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 an 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 a 1 though the remedies were not always identical. For the purpose of enforcing an undertaking, that undertaking is treated as an order so that an undertaking, if broken, w ould involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. For the purpose of enforcing an undertaking, that undertaking is treated as an order so that an undertaking, if broken, w ould involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. 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 sanctions a particular course of action is misconduct amounting to contempt. 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. On the facts and circumstances of this case in light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing the first respondent contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same. " ( 10 ) IN light of the aforesaid position, the respondent is granted another opportunity to purge the contempt by handing over vacant and peaceful possession of the premises in question to the petitioner within a period of three weeks from today failing which the Court will proceed in the matter in accordance with law. List on 27th October, 2004. Listed on 27. 10. 2004.