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PETITIONER: FIRM GANPAT RAM RAJKUMAR

       Vs.

RESPONDENT: KALU RAM & ORS.

DATE OF JUDGMENT22/09/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RAY, B.C. (J)

CITATION:  1989 AIR 2285            1989 SCR  Supl. (1) 223  1989 SCC  Supl.  (2) 418 JT 1989  Supl.    258  1989 SCALE  (2)692  CITATOR INFO :  F          1992 SC1537  (6)

ACT:     Contempt of Court Act 1971--Section 2(b), Order of  this Court--Not  complied with by the petitioner--Whether  provi- sions  of sections 2(b) & 20 of the Contempt of  Courts  Act 1971--Attracted.

HEADNOTE:     The  Respondent filed proceedings for  eviction  against the  Petitioner  firm in respect of a property  situated  at Narnaul  under the Haryana Urban (Control of Rent and  Evic- tion) Act, 1973 and obtained a decree of eviction. Petition- er’s appeal against that decree failed in the High Court and the  Special  Leave Petition filed by it in this  Court  was also  dismissed  on 24.8.87. While  dismissing  the  Special Leave Petition this Court inter alia directed that the order of eviction shall not be executed for a period of six months on  the Petitioner’s filing usual undertaking in this  Court within  four  weeks.  Usual under-taking  implied  that  the Petitioner  was  in possession of the property and  that  it would deliver vacant possession of the property by the  time granted to it by the Court. The Petitioner did not file  any undertaking in this Court. Instead three of Sanjay Kumar and Lala  Ram sons of Rajkumar and Ved Prakash who are  sons  of Ganpat Ram (a partner in the petitioner’s firm) filed a suit in  the  Court of senior Sub Judge,  Narnaul  for  permanent injunction  restraining  the decree  holders  from  ejecting Sanjay  Kumar & Lala Ram. In the said suit the  said  plain- tiffs obtained an order of temporary injunction dated  3.11. 1988.  The  said suit was filed against Kalu Ram  and  Puran Chand son of Roshan Lal and also against Ganpat Rai.     The learned Senior Subordinate Judge in his order  dated 12.2.88 granting injunction to the plaintiffs took the  view that  the plaintiffs had claimed a right of tenancy  to  the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition  No. 5597 of 1987 would not bind the plaintiffs. On this  reason- ing he issued the injunction.     Being  unable  to obtain possession of the  property  in question, Kalu Ram and Ant. who were respondents in  Special

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Leave  Petition  (decree holders) have filed  this  Petition praying  for  initiation of Contempt  of  Court  proceedings against the Petitioner-firm. 224 Disposing of the Petition with some directions this Court, HELD:  On  the date of the order of this  Court  dated  21st August  1987, in the 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  pos- session  to the applicants. The effect of the said order  of this Court, is that the applicants would have vacant posses- sion from the firm, Ganpat Ram Rajkumar. [227C-D]     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,  there  is  a clear non-compliance  of  the  order. [227E]     The said order must be implemented and cannot be allowed to  be defeated by the dubious methods adopted by the  part- ners  of  the said firm of Ganpat Ram Raj Kumar.  The  whole conduct betrays a calculated attempt to defeat the order  of this  Court and to mislead the Court. Sons and grandsons  of the  partners  or erstwhile partners of the firm  cannot  be allowed to frustrate the order of this Court. [227G-H; 228A]     The Respondents, all of them, were guilty of acts  which had to the situation and thereby frustrate the order of this Court.  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. [229D-E]     Failure to give possession, if it amounts to contempt in a situation of this nature is a continuing wrong. There  was no scope for application of section 20 of the Act. [230B]     The  Court accordingly directed the learned Senior  Sub- Judge.  Narnaul  (Haryana) to cause, deliver up  the  vacant possession  of  the  shop situated at  Sabji  Mandi  Narnaul Distt. Mohindergarh (Haryana), if necessary with the help of police  forthwith. The learned Senior Sub Judge is also  di- rected to report compliance immediately. Save as  aforesaid, the  Court passed no order on this application.  Respondents viz.,  firm  Ganpat  Ram, Rajkumar,  Ganpat  Ram,  Rajkumar, Sanjay  Kumar, Lalu Ram and Ved Prakash are directed to  pay to the applicants the costs of this Application,  quantified at Rs.2,500. This order will 225 not prevent or prejudice the applicants from taking any step for  recovery of arrears of rent and mesne profits  as  they are entitled to in accordance with law. [230C-E]     Babu Ram Gupta v. Sudhir Bhasin & Anr., [1979] 3 SCR 685 and Thackar Hariram Motiram v. Balkrishan Chatrathu  Thacker JUDGMENT:

&     CIVIL APPELLATE JURISDICTION: Civil Miscellaneous  Peti- tion No. 1103 of 1989. IN Special Leave Petition No. 5597 of 1987.     From the Judgment and Order dated 2.4.87 of the Punjab & Haryana High Court in C.R. No. 1095 of 1987. A.K. Sanghi for the Petitioner.

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C.M. Ashri and S.M. Ashri for the Respondents. The Judgment of the Court was delivered by     SABYASACHI MUKHARJI, J. This application is by Kalu  Ram and  another,  who  were the respondents  in  special  leave petition  No. 5597/87. The petitioner in the  special  leave petition  was  the  firm, namely, Ganpat  Ram  Rajkumar.  It appears that the applicants had filed proceedings for  evic- tion against the firm in respect of the property in  Narnaul in  the  State of Haryana under s. 13(3)(c) of  the  Haryana Urban  (Control of Rent & Eviction) Act, 1973. An  order  of eviction  was passed against the said firm.  Ultimately  the High Court upheld the said order of eviction. The said  firm came  in  special leave petition to this Court.  This  Court found that there was nothing to interfere with the order  of eviction and on August 24, 1987 passed the following order:               In  view of the finding that the landlord  has               made  out  a case for eviction  under  Section               13(3)(c) of the Haryana Urban (Control of Rent               & Eviction) Act, 1973 the Special Leave  Peti-               tion is dismissed. 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               226               today.  The  dismissal of  the  Special  Leave               Petition should also not prevent the petition-               er to the benefit of putting back into posses-               sion  in the equivalent accommodation  in  the               reconstructed building provided the Court lays               down  such  condition while  interpreting  the               provisions  of the Act. We are  informed  that               the  question is pending consideration  before               this  Court in some other cases i.e.W.P.  Nos.               13385, 9921-24 of 1983 etc."     From  the aforesaid, it is apparent that the  said  firm wanted  time to vacate the premises within six  months  from the date of the order and representation must have been made on behalf of the said firm that the ’usual undertaking’ will be  filed  in this Court. Upon that, this  Court  restrained eviction  for  a period of six months from the date  of  the said  order. This Court, further preserved the right of  the said petitioner to the benefit of being put back in  posses- sion  in the equivalent accommodation in the  re-constructed building  provided the Court laid down such condition  while interpreting the provisions of the Act.     This  Court  recorded that the  aforesaid  question  was pending  consideration  in this Court. However,  it  appears that  the said firm did not file any undertaking,  usual  or otherwise. The usual undertaking to this Court means,  inter alia,  a statement that the party giving the undertaking  is in  possession  of  the premises and that  it  will  further deliver  vacant and peaceful possession to the  landlord  or the  respondent. As mentioned hereinbefore,  the  petitioner did  not  file the undertaking though it had  obtained  time from  this Court on that plea. Furthermore,  the  petitioner did  not  vacate the premises in question. It  appears  that Sanjay  Kumar and Lala Ram sons of Rajkumar and Ved  Prakash who  as  sons  of Ganpat Ram filed a suit in  the  court  of Senior  Sub-Judge,  Narnaul for  permanent  injunction,  re- straining the present applicants from ejecting Sanjay  Kumar and Lala Ram. It may be mentioned that Ganpat Ram and Rajku- mar  are the partners of the petitioner-firm M/s Ganpat  Ram Rajkumar. The said firm and the partners thereof were  bound in law to comply with the Order dated 24th August, 1987.  In the said suit Sanjay Kumar and Lala Ram obtained an order of

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temporary  injunction dated 3rd November, 1988. The  learned Sr. Sub-Judge, Narnaul, by an order in an application  under Order  39 Rules 1 & 2 read with s. 151 of the Code of  Civil Procedure in civil suit No. 121/88 filed in the Court of Sr. Sub-Judge, Narnaul, by Sanjay Kumar, Lala Ram--minor sons of Rajkumar  and Ved Prakash, son of Ganpat Ram as partners  in the said firm, made the order of injunction. 227     The said suit was instituted against Kalu Ram and  Puran Chand sons of Roshan Lal and also against Ganpat Ram. In the order  passed on the 12th February, 1988 in the  said  suit, the  learned Senior Sub Judge, Narnaul had stated  that  the present  plaintiffs  had  claimed right of  tenancy  to  the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition  No. 5597  would not bind the plaintiffs therein. He,  therefore, issued  an injunction restraining the parties who were  Kalu Ram,   Puran   Chand  and  Ganpat  Ram,  partners   of   the petitioner-firm.  As  mentioned  hereinbefore,  both  Sanjay Kumar  and  Lala Ram are sons of Rajkumar  and  Ved  prakash respectively,  who  is  a partner of the  firm,  Ganpat  Ram Rajkumar.  Rajkumar was a partner, Ganpat Ram was a  partner and  their sons and grandsons were claiming in the  suit  in Narnaul.  On the date of the order of this Court dated  21st August,  1987 in the said Special Leave Petition, the  peti- tioner  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 Rajkumar. It is not clear from the order of the learned Sr. 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  in 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.     In  the aforesaid view of the matter, the question  that requires  consideration is how will this order  of  eviction passed  by  the High Court and confirmed by  this  Court  by dismissing the Special Leave Petition on the terms mentioned hereinbefore  on  24th  August, 1987 is to  be  enforced  or implemented?  In our opinion, the said order must be  imple- mented  and cannot be allowed to be defeated by the  dubious methods  adopted by the partners of the said firm of  Ganpat Ram Rajkumar. The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead this Court. If  that is the position, in our opinion, parties cannot  be allowed to do so and get away by misleading this Court. This application  was  made for contempt. It may or  may  not  be appropriate to pass any order punishing the wrongdoers.  But there  is no doubt that the order of this Court  dated  24th August, 1987 is being sought to be defeated and  frustrated. Sons and grandsons 228 of the partners or erstwhile partners of the firm cannot  be allowed to frustrate the order of this Court.     Mr Ashri, learned counsel for the respondents  submitted that the respondents could not be held guilty of contempt of court.  It was further submitted by him that no  undertaking had,  in fact, been given, as such there is no  question  of

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breach  of any undertaking by anybody. Mr. Ashri was  right. In fact, no undertaking was given. It is also true that  the parties  who  instituted suit in Narnaul  and  obtained  the order  of injunction dated 3rd November, 1988 were not  par- ties  before this Court when this Court passed the order  on the  24th August, 1987 nor are those parties  successors-in- interest,  according to law, of those who were bound by  the order  dated 24th August, 1987, as such. As we look  at  it, the order of this Court is an order of the High Court with a sanction  of this Court and the applicants were entitled  to have it executed. It has been interfered, by the firm  along with  the plaintiffs in the said suit at Narnaul. Mr.  Ashri referred  to certain observations of this Court in Babu  Ram Gupta  v.  Sudhir Bhasin & Anr., [1979] 3 SCR  685,  wherein pending  decision of a dispute between the parties  referred to  an arbitrator, the High Court passed with the  agreement of  the parties a consent order appointing a  receiver.  The Court  directed that the receiver should take charge of  the property  forthwith  from the appellant therein  and  submit periodical reports to the Court regarding the running of the business. Without making an express direction to the  appel- lant, that the properties in its possession should be handed over to the receiver, the High Court directed the  appellant not  to  interfere with the receiver in the running  of  the business and that the appellant should give the receiver all cooperation that the receiver might require. In the petition filed  before  the High Court in that case,  the  respondent alleged  that  by  failing to hand over  possession  of  the property to the receiver, in terms of the consent order  the appellant  had committed breach of the undertaking given  to the  court and hereby committed an offence punishable  under s.  2(b)  of the Contempt of Courts Act,  1971  (hereinafter referred to as ’the Act’). The High Court held the appellant to  be  guilty  of contempt of court and  sentenced  him  to undergo civil imprisonment. This Court held that the act  of the appellant in not complying with the terms of the consent order did not amount to an offence under s. 2(b) of the Act, however  improper or reprehensible his conduct might be.  It was further held that when a person appearing before a court files  an application or affidavit giving an undertaking  to the  court  or when he clearly and expressly gives  an  oral undertaking which is incorporated by the court in its  order and fails to honour that undertaking then a wilful breach of 229 the undertaking would amount to an offence punishable  under the  Act. An undertaking given by one of the parties  should be  carefully construed by the Court to find out the  nature and extent of the undertaking given by the person concerned. It is not open to the court to assume an implied undertaking when  there  was  none of the record, this  Court  said.  As mentioned  hereinbefore,  the  facts of  that  decision  are significantly  different  from the facts in this  case.  The parties  by  no conduct, overt or otherwise,  herein  misled this Court. Indubitably, in the instant case, the decree  of eviction  was passed by the learned St.  Sub-Judge,  Narnaul and upheld by the High Court of Punjab & Haryana. 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

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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, we are  of the opinion that though perhaps the petitioner  firm 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  posses- sion  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  Harirarn Motirarn v. Balkrishan Chatrathu Thacker & Ors., [1988] 3 JT SC 18. That decision was, however, on the question of enter- taining  a Special Leave Petition or not. Special leave  was not entertained in that case because the petitioner  therein had  obtained time from the High Court in respect of  decree of  eviction. In this case, also the Special Leave  Petition was dismissed but 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.     Another point was taken about limitation of this  appli- cation  under  section 20 of the Act. S. 20 states  that  no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after 230 the  expiry of a period of one year from the date  on  which the  contempt  is alleged to have been  committed.  In  this case,  the  present application was filed on  or  about  3rd November,  1988 as appears from the affidavit in support  of the application. The contempt considered, inter alia, of the act  of not giving the possession by force of the  order  of the  learned  Sr. Sub-Judge, Narnaul  dated  12th  February, 1988. Therefore, the application was well within the  period of one year. Failure to give possession, if it amounts to  a contempt  in  a  situation of this nature  is  a  continuing wrong.  There was no scope for application of s: 20  of  the Act.     In  the  aforesaid  view of the matter,  we  direct  the learned St. Sub-Judge, Narnaul (Haryana) to cause deliver up the  vacant possession of the shop situated at Sabji  Mandi, Narnanl.  Distt. Mohindergarb (Haryana), if  necessary  with the  help  of police forthwith. The learned  Sr,  Sub-Judge, Narnaul  is also directed to report compliance  immediately. Save  as aforesaid, there will be no order on this  applica- tion,  but  we  direct that the  respondents,  namely,  firm Ganpat Ram Rajkumar, Ganpat Ram Rajkumar, Sanjay Kumar, lala Ram  and Ved Prakash should pay and bear the costs  of  this application  to the applicant, which is quantified  and  as- sessed at Rs.2,500 (Rupees two  thousand five hundred only). Save  as aforesaid, there will be no further orders on  this application.  This order will not prevent or  prejudice  the applicants  from taking any step for recovery of arrears  of rent and mesne profit as they are entitled to in  accordance with law. Y.  Lal                                       Petition  dis- posed of. 231

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