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CASE NO.: Contempt Petition (civil)  249 of 2006

PETITIONER: Santanu Chaudhuri

RESPONDENT: Subir Ghosh

DATE OF JUDGMENT: 24/07/2007

BENCH: G.P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

Contempt Petition (C) No.249 of 2006 In Special Leave Petition (C) No.21766 of 2005

G.P. Mathur, J.

1.      This petition has been filed by the landlord Santanu Chaudhuri  for initiating contempt proceedings against the tenant Subir Ghosh.   

2.      The petitioner Santanu Chaudhuri filed a suit for eviction  against Subir Ghosh in the Court of Civil Judge (Sr. Divn.), 9th Court,  Alipore, which was dismissed.  The appeal filed by the petitioner was  allowed by a Division Bench of the Calcutta High Court and a decree  for eviction was passed against the respondent Subir Ghosh (tenant)  on 25.8.2005.   Subir Ghosh then filed Special Leave Petition (Civil)  No.21766 of 2005 in this Court.  The petitioner Santanu Chaudhuri  (landlord) also put in appearance on Caveat.  The special leave  petition was dismissed on 13.2.2006 and the following order was  passed : "The special leave petition is dismissed.  Counsel for the petitioner prays for six months’  time to vacate the premises. Counsel for respondent  present on caveat is agreeable to the same.  Accordingly,  the petitioner is granted time to vacate the suit premises  by 31st August, 2006 subject to filing the usual affidavit  by way of undertaking within two weeks from today.    An advance copy of the affidavit will be supplied to the  counsel for the respondent."   

3.      The present contempt petition has been filed on the ground that  the time granted by this Court to vacate the premises expired on 31st  August, 2006, but the tenant has not yet vacated the premises.  Notice  was issued on the contempt petition on 5.1.2007.  Subir Ghosh  (tenant) has filed a counter affidavit in reply to the contempt petition  and the main ground taken therein is that he did not file any affidavit  or undertaking as was directed in the order dated 13.2.2006 and in  absence of any undertaking having been filed, it cannot be said that   disobedience of any order of this Court has been committed.  It has  been further submitted that as no affidavit or undertaking had been  filed, it was open to the landlord to execute the decree forthwith and  there is no occasion for initiating contempt proceedings against him.   

4.      Shri Mukul Rohatgi, learned senior counsel for the tenant Subir

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Ghosh has placed strong reliance on Rita Markandey v. Surjit Singh  Arora (1996) 6 SCC 14 in support of his submission that no contempt  has been committed by his client.  In the said case it was held as  under:   "If any party gives an undertaking to the Court to  vacate the premises from which he is liable to be evicted  under the orders of the Court and there is a clear and  deliberate breach thereof it amounts to civil contempt but  since, in the present case, the respondent did not file any  undertaking as envisaged in the order of the Supreme  Court, the question of his being punished for breach  thereof does not arise.  However, even in a case where no  such undertaking is given, a party to a litigation may be  held liable for such contempt if the Court is induced to  sanction a particular course of action or inaction on the  basis of the representation of such a party and the Court  ultimately finds that the party never intended to act on  such representation or such representation was false. In  other words, if on the representation of the respondent  herein the Court was persuaded to pass the order  extending the time for vacation of the suit premises, he  may be held guilty of contempt of court, notwithstanding  non-furnishing of the undertaking, if it is found that the  representation was false and the respondent never  intended to act upon it.  However, the respondent herein  cannot be held liable for contempt on this score also for  the order in question clearly indicates that it was passed  on the basis of the agreement between the parties and not  on the representation of the respondent made before the  Court.  It was the petitioner who agreed to the  unconditional extension of time by four weeks for the  respondent to vacate and subsequent extension of time on  his giving an undertaking and the Court only embodied  the terms of the agreement so arrived at, in the order.   Therefore, the respondent cannot in any way be held  liable for contempt for alleged breach of the above  order."    

       Learned counsel has also referred to R.N. Dey & Ors. v.  Bhagyabati Pramanik & Ors. (2000) 4 SCC 400, wherein it was held  that weapon of contempt cannot be used for purposes of executing a  decree or implementing an order for which law provides appropriate  procedure.  This case, in our opinion, has no application as it related  to award of compensation under the Land Acquisition Act, wherein it  was subsequently revealed that the land owners, who had applied for  compensation and had succeeded in its enhancement from the  Reference Court, had in fact no title to the land acquired as the land  stood already vested in the State.   The next case relied upon by Shri   Mukul Rohatgi is Anil K. Surana & Anr. v. State Bank of Hyderabad  2003 (10) Scale 580, which is a case relating to repayment of loan of a  bank and on the finding that no undertaking had been given, it was  held that by the consent of the parties an executable decree had been  passed in favour of the bank and the remedy lay in execution of the  decree.  

5.      Shri Arun Jaitley, learned senior counsel for the petitioner  Santanu Chaudhuri (landlord) has, on the other hand, placed strong  reliance on Ram Pyari (Smt.) & Ors. v. Jagdish Lal (1992) 1 SCC  157, wherein the special leave petition was dismissed but it was  directed that the order of eviction shall not be executed before three  months on the condition that the tenant filed an undertaking within  three weeks.  The tenant, however, neither filed any undertaking nor  handed over vacant possession. Placing reliance upon an earlier  decision rendered in Firm Ganpatram Raj Kumar v. Kalu Ram AIR  1989 SC 2285 it was held that though contempt is a serious matter and

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it interferes with the rights of those who are found guilty of contempt,  no Court should allow any party to mislead the Court and thereby  frustrate its order.  It was also held that though perhaps the respondent  could not be found guilty of violating any undertaking as there was  none, in the facts and circumstances of the case, the Court should  ensure compliance with its order and see that vacant and peaceful  possession is given to the landlord in the interest of justice.    Accordingly, a direction was issued to the trial Court to cause delivery  of vacant possession of the shop to the landlord, if necessary, with  police help.  This case has been subsequently followed in Zahurul  Islam v. Abul Kalam & Ors. (1995) Supp. (1) SCC 464, where time  was granted to the tenant to vacate the disputed premises subject to his  filing the usual undertaking within four weeks, but the tenant did not  file any undertaking nor vacated the premises.  It was held that the  Court should ensure compliance of the order by ensuring delivery of  possession to the landlord.  In our opinion, the present case is fully  covered by the ratio of Firm Ganpatram Raj Kumar v. Kalu Ram,  Ram Pyari (Smt.) & Ors. v. Jagdish Lal and Zahurul Islam v. Abul  Kalam & Ors., referred to above.   

6.      We, accordingly, direct the trial Court to cause delivery of  vacant possession of the premises in dispute to the petitioner Santanu  Chaudhuri (landlord) by eviction of the respondent Subir Ghosh  (tenant) or anybody else found in occupation of the premises, if  necessary, with the help of police, within one month of presentation of  a certified copy of this order before the trial Court.  We make it clear  that this order will not prevent or prejudice the petitioner (landlord)  from taking any steps for recovery of rent and mesne profits as he is  entitled in accordance with law.   The petitioner will also be entitled to  Rs.50,000/- as costs for the present proceedings.  The respondent  Subir Ghosh (tenant) is granted one month time to deposit the cost in  the trial Court.  In case the cost is not deposited as aforesaid, the trial  Court shall recover the amount from Subir Ghosh (tenant) in  accordance with law and the same shall be paid to the petitioner,  Santanu Chaudhuri.

7.      The petition is accordingly disposed of.

WITH               Contempt Petition (C) No.23 of 2007 In Special Leave Petition (C) No.21766 of 2005

Subir Ghosh                                             ... Petitioner

Versus

Santanu Choudhury                                       ... Respondent

ORDER

       No case for initiating contempt proceedings is made out.   The  contempt petition is dismissed.