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PETITIONER: CHHAGANBHAI NORSHINBHAI

       Vs.

RESPONDENT: SONI CHANDUBHAI GORDHANBHAI & ORS.

DATE OF JUDGMENT23/03/1976

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) SINGH, JASWANT

CITATION:  1976 AIR 1909            1976 SCR  (2) 786  1976 SCC  (2) 951

ACT:      Contempt of Courts Act, 1971, s. 19(1)(b)-Order of High Court obtained  by  giving  express  undertakings-Deliberate breach-Plea  of   ‘consent  order’-Misconduct  amounting  to contempt of court.

HEADNOTE:      The defendant-appellant  obtained an  order of the High Court by  giving an  express undertaking to vacate the suit- premises within  a month  and a  half of  receiving a notice from the  plaintiff-respondents that they required the same. The  undertakings   were  deliberately   flouted,  and   the appellant did  not tender  an apology at any stage. The High Court convicted  him under the contempt of courts Act, 1971, s.  19(1)(b)  for  misconduct  amounting  to  contempt.  The appellant contended before this court that there had been no breach of any undertaking, and that he had only entered into an agreement  to which  an  order  of  the  court  had  been appended.      Dismissing the appeal, the Court, ^      HELD :  This is  a case  of a  perverse and  deliberate flouting of  undertakings given by a litigant who, evidently had no  intention to abide by them. The undertakings seem to have been  taken very  lightly by  him as  mere  cloaks  for obtaining an  order which would not have been passed but for the undertakings. [787F-G]      (2) The  case before  us being  a case  of a deliberate violation of an undertaking to the court, the effect was the same as that of breach of an injunction. [788-C]      Halsbury’s Laws  of England  4th Edn.  Vol. 9  page  42 (para 71)  and page 44 (para 75) Dashwood v. Dashwood (1927) (71 Sol. Jo 911) referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal No. 88 of 1975.      From the  Judgment and  Order dated  the 10-1-75 of the Gujarat High  Court in  N.C.A. 576/74  in C.R.A. No. 1020 of

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1971.      M. F. Thakkar and S. S. Khanduja for the Appellant.      M. C. Shah and M. V. Goswami for Respondents.      The Judgment of the Court was delivered by      BEG, J.-This  is an  appeal under  Section 19(1) (b) of the contempt  of Courts’  Act, 1971. The defendant-appellant was convicted  by the  Division Bench  of the  High Court of Gujarat for  having deliberately  violated an  order secured from the  High Court  on 22 January, 1973, upon undertakings given to it. The very first term of the order is :           "The defendant  gives solemn  undertaking to  this      Hon’ble High Court that he will vacate suit premises by      handing over  the key  of the  premises to the Court of      the Civil  Judge, Junior  Division, Anand, in pursuance      of the  decree within  one  and  a  half  months  after      receipt of  the notice  from the  Plaintiffs  that  the      plaintiff Dr.  I. C.  Boni has returned from abroad and      intends  to   start  medical   practice  in   the  suit      premises". 787 He also  undertook to clear the arrears of mesne profits and to  continue   to  pay  them  regularly  as  and  when  due. Furthermore, he  undertook not  to part  with possession  in favour of  any person  other than the landlord decree-holder until he  received the  notice  contemplated  by  the  first condition. It  is not  disputed that  the appellant received that notice  on 10  October, 1974.  There is  nothing in the conditions of  the undertaking to imply that it was merely a consent order  passed upon  an agreement between the parties to which  the order  of the  Court had  been superadded. The order  incorporated   express  undertakings   to  the  Court although these  may have  induced the  plaintiff to agree to the passing  of the order in the form in which it was passed instead of  pressing  for  an  order  of  dismissal  of  the revision application  before the  High Court  after which he could have executed his decree immediately. This feature, in itself, could not convert the order actually passed upon the undertakings given into a mere consent order. It was clearly a case  of express undertakings to the court incorporated in the order.  The order  passed on  22 January, 1973, ended as follows :           "In view  of the  respective undertakings given by      the parties  to this  proceeding which undertakings are      on record, the petitioner does not wish to proceed with      this  CRA   and  does   not,  therefore   survive.  The      application is  dismissed. No order as to costs in this      circumstance of the case."      The defendant-appellant  not only  did not abide by the undertakings given to the High Court but his Counsel took up the impossible position that it was a mere agreement between the parties  to  which  an  order  of  the  Court  had  been appended.  On  this  flimsy  and  unsustainable  ground,  an argument put  forward before us was that there was no breach of any  undertaking.  The  High  Court  found  that  express undertakings  had  been  violated.  We  have  no  hesitation whatsoever in  holding that  the  High  Court’s  finding  is correct upon  the  recorded  admissions  on  behalf  of  the defendant-appellant. It is true that the defendant appellant surrendered possession  after  the  initiation  of  contempt proceedings in  1974. But,  that made  no difference  to the initial wrong committed.      Another feature  of the case is that the appellant gave no sign  of even  regret at  any stage  not  to  mention  an apology of any kind. Even in this Court, learned Counsel for the appellant took up the impossible position that there had

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been no  breach of  any undertaking.  We agree with the High Court that  this is  a case  of a  perverse  and  deliberate flouting of undertakings given by a litigant who, evidently, had no  intention to  abide by them. The undertakings seemed to have  been taken  very lightly  by him as mere cloaks for obtaining an  order which would not have been passed but for the undertakings.  The High  Court rightly  observed that it had no  option  except  to  convict  the  appellant  and  to sentence him to three months imprisonment in civil jail.      Before  parting   with  this   case  we  may  refer  to Halsbury’s Laws  of  England-Fourth  Edn.  o1.  9,  page  42 (paragraph 71)  where, after  citing Dashwood v. Dashwood(1) for the proposition that, when a 788 party fails  to comply  merely with  the terms  of a consent order, "the remedy of the injured party is to apply, not for committal, but  for an  order for specific performance or an injunction, and then to base proceedings for contempt on any subsequent  breach",  the  observation  is  made  :  "Where, however, there is an express direction or undertaking in the body of  the  order,  a  breach  will  enable  an  immediate application for  committal to  be made". In the same volume, at page 44 (para 75) we find the law thus stated :           "An undertaking  given to the court by a person or      corporation in  pending proceedings,  on the  faith  of      which the court sanctions a particular course of action      or inaction,  has the  same force as an injunction made      by the  court  and  a  breach  of  the  undertaking  in      misconduct amounting to contempt".      The case  before  us  being  a  case  of  a  deliberate violation of an undertakings to the Court the effect was the same as that of breach of an injunction.      Consequently, finding  ourselves in  agreement with the High Court,  we affirm  the judgment  and order  of the High Court and dismiss this appeal with costs. M.R.                                       Appeal dismissed. 789