Smt. Manju vs Smt. Shantibai
2021 Latest Caselaw 7143 MP

1


          The High Court Of Madhya Pradesh,
                        Bench At Indore

                        Conc No.1181/2021
      Smt. Manju @ Manjula vs. Smt.Shantibai and Ors.
Indore, Dated 09.11.2021
      Shri Nitin Phadke, Advocate for the petitioner.
      Shri Sarit Sanyal, Advocate for the respondent.

The petitioner has filed this petition under section 12 of the Contempt of Court Act, 1971 R/w Article 215 of the Constitution of India for alleged willful and deliberate contempt made by the respondents in respect of order dated 05.03.2020 passed in SA No.556/2002.

2. The petitioner claims himself to be heir and legal representative of Late Bajranglal Sharma (Land lord) who filed the suit for eviction against Sureshchandra Silawat (tenant) in respect of suit property situated at 7, Godbole Colony, Annapurna Road, Indore. The petitioner submits that the suit was decreed by the trial Court and the Appellate Court by judgments and decrees dated 16.01.2001 and 27.09.2002 respectively. Aggrieved, the tenant preferred SA No.556/2002 before this Court.

3. During the pendency of SA No.556/2002, the original land lord as well as original tenant passed away. Accordingly, on an application filed by the appellant therein, the present petitioner was substituted in place of original land lord whereas respondents were substituted in place of original tenant.

4. Learned counsel for the petitioner submits that the SA NO.556/2002 was disposed off by order dated 05.03.2020. Relevant portion of which reads as under :-

"4. However, looking to the fact that appellant- tenant is continuing in house for last more than 20 years, it shall be expedient in the interest of justice to protect the possession of appellant-tenant for 11

months only on following terms and conditions, subject to furnishing undertaking before this Court within a period of 15 days from today :-

(i) The appellant shall occupy the suit premises upto 01/03/2021.

(ii) The appellant shall deposit the entire arrears of rent within four weeks, if not already deposited.

(iii) The appellant shall continue to pay regular rent on 5th day of every succeeding month.

(iv) The appellant shall not alter or bring any change in the suit premises during the currency of the period of 11 months.

(v) The appellant shall not transfer or create third party right over the suit premises to the prejudice of the respondent-plaintiff-landlord.

(vi) The appellant shall vacate the suit premises on or before 01/03/2021 peacefully.

(vii) Failure or deviation any of the conditions stipulated hereinabove shall entail eviction of the appellant-tenant forcefully by local Police force on an application filed in that behalf.

5. Accordingly, the appeal stands disposed of."

5. It is submitted that the respondent/appellant therein has not vacated the suit premises till date. Indeed, the civil suit which is not maintainable is filed before the Civil Judge, Class II (Annexure A/3). The petitioner also filed an application for execution for obtaining possession of suit property and in turn Executing Court issued a warrant of possession. It is submitted that the order of this court dated 05.03.2020 passed in SA No.556/2020 is passed on the undertaking of the respondent. The breach of undertaking before the Court also constitutes contempt of Court. Reliance is placed on AIR 1990 SC 464 (Noorali Babul Thanewala Vs. KMM Shetty and Ors), AIR 2006 SC 1883 (Rama Narang Vs. Ramesh Narang and Anr.) and recent judgment in SLP (C) No.28592/2018 (Suman Chadha and Anr Vs. Central Bank of India). By placing reliance on para 6 of the reply of contempt petition, it is submitted that the averments

mentioned therein further aggravates the contempt for which respondents are required to be punished and they are bound to purge the contempt.

6. Learned counsel for the respondent by placing reliance on 1974 Cri. L.J 825 (H.S Butalia and Ors. Vs. Subhash Kumar Saksena and Ors.) and another judgment of Rajasthan High Court reported in 1997 (2) RLW Raj 813 (Sumiti Roop Chand Bhandari Vs. Himmat Mal Giriya), urged that the contempt petition would not lie. For this purpose, judgment of Gujarat High Court reported in 1997 Cri.L.J 497 (Yogesh P. Sukhanandi Vs. State of Gujarat and Ors.) is also relied upon.

7. No other point is pressed by the learned counsel for the parties.

8. I have heard learned counsel for the parties at length and perused the record.

9. In the case of Rama Narang (Supra), the question cropped up whether a contempt petition is maintainable when order/decree is executable. The Apex Court opined as under :-

"All decrees and orders are executable under the Code of Civil Procedure. Consent decrees or orders are of course also executable. But merely because an order or decree is executable, would not take away the Courts jurisdiction to deal with a matter under the Act provided the Court is satisfied that the violation of the order or decree is such, that if proved, it would warrant punishment under section 13 of the Act on the ground that the contempt substantially interferes or tends substantially to interfere with the due course of justice. The decisions relied upon by the respondents themselves hold so as we shall subsequently see.

(emphasis supplied)

10. The Apex Court, in no uncertain terms, made it further clear that:-

"Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt as meaning willful disobedience to any judgment decree, directions, order, writ or other process of a Court or willful breach of an undertaking given to Court. Analysed, the definition provides for two categories of cases, namely, (1)

willful breach of an undertaking given to Court. As far as the first category is concerned, the word 'any' further indicates the wide nature of the power. No distinction is statutorily drawn between an order passed after an adjudication and an order passed by consent. This first category is separate from the second and cannot be treated a second category. The legislative intention clearly was to distinguish between the two and create distinct classes of contumacious behaviour."

11. Similarly in the case of Noorali Babul Thanewala (supra), the Apex Court opined as under :-

"When a court accepts an undertaking given by one of the parties and passes an order 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 although 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, would 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 contemnor to purge the contempt or a sentence imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking by tenant the mere imposition of imprisonment or fine will not meed the ends of justice. There will have to be an order of purge the contempt by directing the contemnor to deliver vacate possession immediately and issuing necessary further and consequential directions for enforcing the same."

(emphasis supplied)

12. In recent judgment in the case of Suman Chadha (supra), the Apex Court considered its previous judgment and followed the previous view that willful breach of the undertaking amounts to Contempt of Court under section 2(b) of the Act. It is further held that it is for the Court to see whether the subsequent conduct of the contemnor would tantamount to aggravate the contempt committed, the very determination of the Act of contempt cannot be simply be passed upon the subsequent conduct. It is to be seen whether the subsequent conduct of a party is just its inability of the party or its part of a larger design to hood wink the court.

13. In para 6 of the reply, the respondents have stated as under :-

"6. In Reply to para 6 of the petition, it is stated that though there might be an undertaking given by the Non-Applicants before this Hon'ble Court under influence of the status of this Hon'ble Court but it is also the duty of this Hon'ble Court to see that whether after the compliance of the said order of this Hon'ble Court that whether the possession of the suit premises is going to be in the right hands as the decree was given in favor of Shri Bajranglal Sharma and the Petition/Applicants were added as party during the pendency of the Second Appeal who are not the legal heirs or legal representative of Shri. Bajranglal representative of Shri Bajranglal Sharma.

(emphasis supplied)

14. On a specific query from the bench, learned counsel for the respondents fairly submitted that the order of this court dated 05.03.2020 passed in SA No.556/2002 was not challenged before the Supreme Court. Learned counsel for the respondent submits that although his Civil Suit filed on 21.12.2020 (Annexure A/3) might have been filed erroneously, the fact remains that this contempt petition cannot be entertained in the light of judgments of Calcutta, Rajasthan and Gujarat High Court mentioned hereinabove.

15. A plain reading of order dated 05.03.2020 shows that the respondents/appellants therein accepted to file an undertaking before this Court. It is not disputed that such an undertaking was indeed filed. However, despite filing of undertaking, the suit premises was not vacated till date. This, in my view, is breach of undertaking and amounts to Contempt of Court, in view of judgments of the Apex Court cited by learned counsel for the petitioner. If the appellant therein was aggrieved by the judgments and decrees and order passed in SA No.556/2002, the only course available to him was to assail it before the appropriate higher forum. Withstanding this undertaking and order, it is no more open to the respondent to submit that the contempt petition would not lie.

16. In the case of HS Butalia (supra), the fact indicates that it is arising out of a service matter. The factual backdrop of the said

case has no bearing on the present issue.

17. In the case of Sumiti Roop Chand Bhandari (supra), the Rajasthan High Court has not considered the judgment of the Apex Court in Noorali Babul Thanewala (supra). The Rajasthan High Court opined that while punishing the contemnor for willful/deliberate disobedience of an undertaking, the guilt of the contenmor is required to be proved beyond all shadow of doubts. In the factual backdrop of that case, the Court opined that there was lurking doubt in the mind of tenant/contemnor that he has justified to retain the possession of the suit shop in the garb of judicial orders, hence it would not be proper to punish him for contempt of Court. There is not such judicial order in favour of the tenant in the instant case, which gives him any such benefit of impression/doubt. Putting it differently, it cannot be said that the respondents had any such lurking doubt in their mind after suffering the judgments and decrees from all the Courts that they have any right whatsoever to continue in such premises. Thus, this judgment is of no assistance to the respondents.

18. In the case of Yogesh P. Sukhanandi (supra), the Court opined that the relevant facts were within the personal knowledge of the petitioner. The said facts could not be within the knowledge of the respondents. Thus, in the facts and circumstances of that case, it was held that no case to invoke contempt jurisdiction is made out. This judgment has no application in the facts and circumstance of the present case.

19. In view of the judgment of the Apex court in the case of Rama Nagarng (supra) (para 25), there is no manner of doubt that merely because the order/decree is executable, it will not take away the jurisdiction of this Court to deal with the matter under the Contempt of Court Act. This court is satisfied that the respondents have acted contrary to their undertaking and there exists willful disobedience of the order of this Court passed in SA

NO.556/2002.

20. Thus, the respondents are directed to purge the contempt and vacate the premises and hand over the possession to the petitioner on or before 30.11.2021 and file the compliance report.

21. List the matter on 06.12.2021.

22. It is made clear this this petition shall not be treated as 'part heard'.

(Sujoy Paul) Judge sourabh Digitally signed by SOURABH YADAV Date: 2021.11.11 10:39:11 +05'30'