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2004 DIGILAW 934 (ALL)

MOHD SHAMIM v. CHANDRA KUMAR

2004-04-28

RAJES KUMAR

body2004
RAJES KUMAR, J. The present petition has been filed with the allegations that the Opp. parties have violated the order dated 23-1-2003 passed in Writ Petition No. 5269 of 1998. According to the applicant, Opp. parties have not vacated the premises in dispute within the period of six months which was granted by this Court which allowing the Writ Petition of Landlord and directing the ejectment of tenant. 2. The brief facts of the case are that the applicant had filed a Suit No. 98 of 1988 for recovery of arrears of rent and ejectment from the disputed shop No. 86 situated in Mohalla Thakuryana Pulia No. 9, Jhansi. The suit was dismissed (sic allowed) by the Judge Small Causes Court on the findings that the defendant had committed default in payment of rent. The further finding was that the tenant had sub-let the accommodation in question. The trial Court has also recorded a finding that the notice under Section 106 of Transfer of Property Act is valid. Aggrieved by the said order, tenant Chandra Kumar filed Revision No. 56 of 1994. The said Revision was allowed on the ground that the letting took place without any allotment and therefore, tenancy in question being void suit for ejectment was not maintainable. Against the said revisional order aforesaid, a Writ Petition No. 5269 of 1998 was filed. The writ petition was allowed and the order of revisional Court was quashed and the order of trial Court was restored. This Court has further observed as follows: "the contesting respondent is granted six months time to vacate the disputed shop provided he deposits the entire decreetal amount up to date and also furnishes an undertaking before the trial Court that he will hand over the peaceful vacant possession to the petitioner on or before the expiry of the period of six months from today. The undertaking may be furnished within a period of one month from today. " 3. The case of the applicant is that despite of the aforesaid order of this Court, granting six months time to vacate the disputed shop, the shop in dispute has not vacated and therefore, the Opp. parties have committed contempt. Sri S. C. Srivastava, Advocate in support of his contention stated that none eviction of premises in question in pursuance of the order dated 23-1- 2003, amounts to contempt of order of this Court. parties have committed contempt. Sri S. C. Srivastava, Advocate in support of his contention stated that none eviction of premises in question in pursuance of the order dated 23-1- 2003, amounts to contempt of order of this Court. He relied upon a decision of Apex Court in the case of Ganpat Ram Raj Kumar v. Kalu Ram and others, reported in A. I. R. 1989 SC page 2285. 4. Having heard learned Counsel for the applicant. I am of the view that on the facts of the present case, no case of contempt is made out. The decision of Apex Court in the case of Ganpat Ram Raj Kumar v. Kalu Ram and others (supra) is not applicable to the facts of the present case. 5. In para-6 of the Contempt Petition, it has been stated that "chandra Kumar Opp. Party No. 1 who was to give an undertaking when neither furnished any undertaking and not deposited the decreetal amount as per the judgment dated 23-1-2003 of this Court, applicant filed an Execution No. 5 of 2003 on 1-4- 2003 for execution of decree. " 6. In Contempt Application as well as affidavit filed in support of the application, it is no where stated that the Court had granted six months time to vacate the disputed shop on the request and undertaking of the Opp. parties. 7. The perusal of order shows that six months time to vacate the disputed shop was subject to the condition that the tenant deposits the entire decreetal amount up to date and also furnishes an undertaking before the trial Court that he will hand over the vacant possession of the petitioner. According to the applicant own case, the Opp. parties have neither deposited decreetal amount nor furnishes any undertaking before the trial Court, therefore, the order of Court granting six months time to vacate the disputed shop, stood in operative and the applicant could only get the decree executed through the execution proceedings. The position would be entirely different, if the Opp. parties would have give an undertaking or would have pleaded before the Court for allowing time for vacating the premises in question and the premises is not vacated within the time specified. In the present case, there is no such case. The position would be entirely different, if the Opp. parties would have give an undertaking or would have pleaded before the Court for allowing time for vacating the premises in question and the premises is not vacated within the time specified. In the present case, there is no such case. In the case of Ganpat Ram Raj Kumar v. Kalu Ram and others (supra), Apex Court observed as follows: "on the date of the order of this Court dated 21st August, 1987 in the said Special Leave Petition, the petitioner therein had obtained time on the implied assurance and representation that they were in possession of the premises in question and were capable of delivering the vacant possession to the applicants herein. The effect of the said order of this Court, as we have set out hereinbefore, is that the applicants would have vacant possession from the firm, Ganpat Ram Raj Kumar. It is not clear from the order of the leaned Senior Sub Judge, Narnaul dated 3rd November, 1988, how since the order of this Court dated 24th August, 1987, the plaintiffs in the suit in Narnaul Court could have possession of the premises in question. Having regard to the relationship between the parties and having regard to the undertaking promised to be filed in this Court upon which time was obtained from this Court, it appears to us that there is a clear non compliance of the order. The order stated that vacant possession was to be given. "this Court dismissed the Special Leave Petition and granted time of six months on the plea that the petitioner firm would file an undertaking. All this could not have happened if the present plaintiffs in the Narnaul suit had not consented or allowed it to be passed or stood by. It is difficult to accept the position that they did not know. In the facts of this case, we are of the opinion that they deliberately did not object to this Court passing the order and thereby allowed the firm to mislead this Court. They are, therefore, bound to see that the order of this Court is complied with. Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no Court should allow any party to mislead the Court and thereby frustrate its order. They are, therefore, bound to see that the order of this Court is complied with. Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no Court should allow any party to mislead the Court and thereby frustrate its order. In the aforesaid view of the matter, are of the opinion that though perhaps the respondents could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August, 1987 and see that vacant and peaceful possession is given to the applicant in the interest of justice. Mr. Sanghi, learned counsel for the applicant drew our attention to an order of this Court in Thackar Hariram Motiram v. Balkrishan Chatrathu Thacker, (1988) 3 JT SC 18. That decision was, however, on the question of entertaining a Special Leave Petition or no. Special leave was not entertained in that case because the petitioner herein had obtained time from the High Court in respect of decree of eviction. In this case, also the Special Leave Petition was dismissed out of consideration for the difficulties of the petitioner firm in the said petition, this Court was induced to grant some time on certain considerations. It appears that this Court was mislead. It further appears that the respondents, all of them, were guilty of acts which led to the situation and thereby frustrate the order of this Court. " 8. In that case, an order of eviction was passed against the Firm. High Court up held the order of eviction and thereafter, the said Firm filed a Special Leave Petition before the Apex Court which was also dismissed with the direction that the order of eviction shall not be executed for a period of six months on the petitioners filing usual undertaking in this Court within four weeks from today. High Court up held the order of eviction and thereafter, the said Firm filed a Special Leave Petition before the Apex Court which was also dismissed with the direction that the order of eviction shall not be executed for a period of six months on the petitioners filing usual undertaking in this Court within four weeks from today. When premises in dispute was not vacated, a Contempt Petition was filed and in the Contempt Petition, Apex Court held that the petitioner had obtained time on an implied assurance and representation that they were in possession of the premises in question and were capable for delivering the vacant possession of the premises in question and on the said assurance, time was granted and since the premises in dispute was not evicted in time, Apex Court held that it was a clear cut case of non compliance of the order while in the present case, Writ Petition of landlord was allowed and the Court has granted six months time to vacate on the condition to deposit the decreetal amount and furnishes an undertaking. Admittedly, neither the decreetal amount was deposited nor an undertaking was furnished, inasmuch as, there is no case of applicant that the time of six months was allowed on the request or under taking of the tenant. It appears that the Court after allowing the Writ Petition, granted six months time to vacate the premises in dispute subject to the aforesaid conditions and therefore, in the present case, it can not be said to be a case of an implied assurance or any kinds of representation on the part of the tenant. In my view, the aforesaid judgment is not applicable in the present case. In the case of Babu Ram Gupta v. Sudhir Bhasin, reported in AIR 1979 SC page 1528, Apex Court held that it is not open to the Court to assume an implied undertaking when there was none on the record. In the case of Ashwani Kumar Srivastava v. Anwarul Hasan, Divisional Manager, New India Assurance Co. Ltd. Allahabad & others, reported in 1997 (3) ALR Page 550, this Court held that a decree can not be executed by means of petition under the Contempt of Courts Act, in view of the fact that a complete and effective procedure of executing a decree were available under the Code of Civil Procedure. 9. Ltd. Allahabad & others, reported in 1997 (3) ALR Page 550, this Court held that a decree can not be executed by means of petition under the Contempt of Courts Act, in view of the fact that a complete and effective procedure of executing a decree were available under the Code of Civil Procedure. 9. In view of the aforesaid facts and circumstances, in my opinion, no case of contempt is made out. Application is rejected. Application dismissed. .