Tarlok Singh Chauhan JUDGMENT
Tarlok Singh Chauhan, J.
1. The petitioner has filed this petition under Section 10 of the Contempt of Courts Act, 1971 (for short the 'Act') read with Rule 3(i)(ii) & (iii) and Rule 4(i)(ii) & (iii) of the H.P. High Court Contempt Rules, 1996, for initiating contempt proceedings against the respondent for violating the order passed by the learned Rent Controller on 25.05.2010.
2. Undisputed facts are that the petitioner is the landlord and had sought eviction of the respondent under the provisions of the H.P. Urban Rent Control Act, 1987. Ex-parte eviction orders were passed on 05.06.2008. In execution, the parties entered into a compromise. Their statements were duly recorded and on the basis of the said compromise, the execution petition was ordered to be dismissed as withdrawn being compromised.
3. According to the petitioner, the respondent has flouted the conditions of the compromise and thereby committed contempt.
4. In reply filed by the respondent, a number of preliminary objections have been raised and thereafter on merits it is alleged that no case for contempt is made out as the petitioner himself had agreed for incorporation of a condition in the agreement that in case for any reason the premises are not vacated as agreed to by the respondent, then the petitioner shall after 31.05.2014 be entitled to ` 6,000/- per month for the use and occupation charges from the respondent as against the earlier rent of ` 1600/- per month.
We have heard the learned counsel for the parties and gone through the records of the case.
5. Section 2(b) of the Act defines civil contempt as meaning "willful disobedience to any judgment decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to Court".
6. The question that arises for consideration is as to whether the Court while passing the impugned order dated 25.05.2010 had infact added its mandate to the compromise. For this purpose, it is necessary to advert to not only the compromise entered into between the parties, but also their statements recorded on 25.05.2010 and thereafter to the order passed on the basis of such compromise.
7. A perusal of the application jointly filed by the parties for withdrawal of the proceedings under Order 23 Rule 1 read with Section 151 of the Code of Civil Procedure would reveal that the same contains the following prayer:-
"It is, therefore, respectfully prayed that this application may be allowed and decree may kindly be passed in accordance with the agreement entered into between the parties after recording the satisfaction of the tenant in the interest of justice and in view of settlement arrived between the parties this execution petition may be dismissed as withdrawn."
8. The aforesaid application came up before the executing Court on 25.05.2010 on which date, firstly, the statement of the landlord-petitioner was recorded and thereafter the statement of the tenant-respondent was recorded. Though, the same are in Hindi, the translated version reads thus:-
"Statement of Sh. Ram Gopal Sood, S/o. Sh. Khushi Ram Sood, R/o. Gopal Building, near LIC Building, Sanjauli, Shimla.
On S.A.
25.5.2010.
It is stated that we, both the parties, have entered into a compromise. Agreement is Ex. PA, which I have heard and understood and admit the same as correct. I will be bound by the contents of the Agreement Ex. PA. My petition may be dismissed as withdrawn. Ex. PA bears my signatures which is marked as A and encircled with red ink.
Sd/- Ram Gopal Sood
RO & AC.
Sd/-
Rent Controller,
Court No. 2, Shimla.
Statement of Sh. Jai Pal Chauhan, S/o. Sh. Surat Ram, age 49 years, R/o. Khushi Ram Palada Mal Building, near old Police Post, Sanjauli, Shimla.
On S.A.
25.5.2010.
Stated that I have heard the statement of petitioner and admit it to be correct. Our Agreement is Ex. PA which I have heard and understood. It is correct. I will be bound by the contents of the Agreement Ex. PA. It (Ex. PA) bears my signatures which is marked as B and encircled with the red ink. We will be bound by the Agreement. Petition may be dismissed.
Sd/-
Rent Controller,
Court No. 2, Shimla.
Sd/-
Jai Pal Chauhan
RO & AC."
9. The learned executing Court then proceeded to pass the following orders:-
"An application under Order 23 Rule 1 CPC has been filed alongwith the agreement. DH has made separate statement that the parties have effected the compromise vide Ex. PA and he has admitted his signature on Ex. PA in red circle A. He has further stated that this petition be dismissed as withdrawn. Similar statement has been made by the respondent on oath in which he has also admitted the contents of the agreement Ex. PA to be correct. He has further admitted his signature on Ex. PA in red circle B.
Since, the parties have effected the compromise and in view of the statement as made by the applicant/DH, this execution petition is dismissed as withdrawn being compromised. File after its due completion be consigned to record room."
10. Evidently the landlord by moving an application under Order 23 Rule 1 CPC alongwith agreement had only sought withdrawal of the petition in view of the compromise arrived at between them. Now, therefore, it would be necessary to advert to the agreement dated 17th May, 2010 entered into between the parties, more particularly, the default clause as contained in Clause 3 of the agreement which reads thus:-
"3. That the landlord-first party will withdraw all the cases against the tenant-second party except this case in the court of learned rent controller (II), Shimla which is compromised in terms of this agreement. The tenant-second party will also withdraw the cases/applications filed by him against the landlord-first party for setting aside the ex-parte judgment and decree and orders. Both the parties are agreed to modify ex-parte order dated 5.6.2008 to this extent. In case 2nd party failed to handover possession as agreed above 1st party shall have right to execute the order through court and 2nd party shall be liable to pay use and occupation charges @ 6000/- per month w.e.f. 1-6-2014 till handing over possession."
11. On the basis of para-3 of the agreement (supra), read with the order passed on 25.05.2010, it can safely be concluded that while passing the order on the basis of the compromise of the parties, the Court below never added its mandate to the compromise and rather proceeded to dismiss the execution petition as having been compromised. Had it been a case of undertaking entered into or given to the Court by a party or his counsel, the matter would have been entirely different as the same would then be equivalent and would have the effect of the order of the Court. Its infringement could have then been made the subject of an application to the Court to punish for its breach as has been held by a Co-ordinate Bench of this Court in COPC No. 1 of 2015 titled M/s. Indo Farm Tractors and Motors Ltd. Versus R.K. Saini and another, decided on 10.12.2015.
12. However, in the instant case, the factual position is entirely different as no undertaking whatsoever has been furnished by the respondent, rather a separate and distinct clause has been incorporated in the agreement which clearly stipulates for the consequences in the event of the respondent failing to hand over the possession on or before the stipulated date in the agreement. Further, a perusal of the statement of respondent would also reveal that no undertaking whatsoever had been furnished by the respondent to the Court.
13. There is a clear-cut distinction between a compromise arrived at between the parties or the consent order passed by the Court at the instance of the parties and a clear and categoric undertaking given by any of the parties. In the former, if there is violation of the compromise or the order, no question of contempt of Court arises, but the party has a right to enforce the order or the compromise by executing the order or getting injunction from the Court.
14. This was precisely what has been held by the Hon'ble Supreme Court in Babu Ram Gupta versus Sudhir Bhasin and another MANU/SC/0053/1979 : AIR 1979 SC 1528 in the following terms:-
7. Coming to the first point, the contention of Mr. Asthana was that there was no undertaking given by the appellant to the court at all. Our attention has not been drawn by counsel for the respondent to any application or affidavit filed by the appellant which contains an undertaking given by the appellant to hand over possession to the receiver appointed by the High Court by virtue of the impugned order. It is manifest that any person appearing before the Court can give an undertaking in two ways: (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the court in its order. If any of these conditions are satisfied then a willful breach of the undertaking would doubtless amount to an offence under the Act. Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by the contemner, we are unable to find any material on record which contains such undertakings. It seems to us that the High Court has construed the consent order itself and the directions contained therein as an implied undertaking given by the appellant. Here the High Court has undoubtedly committed an error of law. There is a clear cut distinction between a compromise arrived at between the parties or a consent order passed by the court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by either executing the order or getting an injunction from the court.
10. These are the tests laid down by this Court in order to determine whether a contempt of court has been committed in the case of violation of a prohibitive order. In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the appellant that he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver. Apart from this, even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an under taking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can it be said in these circumstances that merely because the defendant has failed to pay the decretal amount he is guilty of contempt of court? The answer must necessarily be in the negative. Take another instance where a compromise is arrived at between the parties and a particular property having been allotted to A, he has to be put in possession thereof by B.B. does not give possession of this property to A. Can it be said that because the compromise decree has not been implemented by B, he commits the offence of contempt of court? Here also the answer must be in the negative and the remedy of B would be not to pray for drawing up proceedings for contempt of court against B but to approach the executing court for directing a warrant of delivery of possession under the provisions of the Code of Civil Procedure. Indeed, if we were to hold that non compliance of a compromise decree or consent order amount to contempt of court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemner by making a false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the Court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the court, and, therefore, the very foundation for proceeding for contempt of court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the court by the contemner or incorporated by the court in its order, there can be no question of willful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.
11. For these reasons, therefore, we are of the opinion that however improper or reprehensible the conduct of the appellant may be yet the act of the appellant in not complying with the terms of the consent order does not amount to an offence under section 2(b) of the Act and his conviction and order of detention in civil prison for four months is wholly unwarranted by law. The appeal is accordingly allowed. The judgment of the High Court is set aside and the order passed by the High Court directing the appellant to be detained in civil prison for four months is hereby quashed and the appellant is acquitted of the offence under section 2(b) of the Act. Appeal Allowed."
15. What would amount to "an undertaking" has succinctly been outlined by the Hon'ble Supreme Court in Rama Narang versus Ramesh Narang and another MANU/SC/1484/2007 : (2009) 16 SCC 126, the relevant portion whereof is reproduced hereinbelow:-
"35. Black's Law Dictionary, 5th Edition defines 'undertaking' in the following words:
"A Promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the Court or the opposite party. A promise or security in any form."
36. Osborn's Concise Law Dictionary, 10th Edition defines 'undertaking' in the following words:
"A promise, especially a promise in the course of legal proceedings by a party or his counsel which may be enforced by attachment or otherwise in the same manner as an injunction."
37. In M. v. Home Office (1992) 4 All ER 97 at p. 132g the expression 'undertaking' has been dealt with in the following manner:
"If a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood."
38. Hudson, In re, 1966 Ch. 209 the English Court observed as under: (All ER pp. 112-1-113A)
"An undertaking to the court confers no personal right or remedy on any other party The only sanctions for breach are imprisonment for contempt, sequestration or a fine."
39. Similarly, in Shoreham-by-Sea Urban District Council v. Dolphin Canadian Proteins Ltd. (1972) 71 L.G.R. 261, the Court observed as under:
"Failure to comply with an undertaking to abate a nuisance may be visited with a substantial fine."
40. The Division Bench of the Bombay High Court in Bajranglal Gangadhar Khemka & Anr. v. Kapurchand Ltd. reported in MANU/MH/0014/1950 : AIR 1950 Bombay 336 had an occasion to deal with similar facts. Chagla, C.J., speaking for the Court, observed as under: (AIR p. 337, para 4)
"4. We are not prepared to accept a position which seems to us contrary to the long practice that has been established in this Court, and, apparently, also in England. There is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be bound to record a compromise, still, when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the Court; and it would be open to the Court, before it did so, to accept an undertaking given by a party to the Court. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the Court in the consent decree, which undertaking can be enforced by proper committal proceedings."
41. In Noorali Babul Thanewala v. K.M.M. Shetty MANU/SC/0077/1990 : (1990) 1 SCC 259, a tenant committed breach of undertaking given by him to the Supreme Court to deliver vacant possession of certain premises. The Supreme Court held the tenant guilty of contempt. Hon'ble V. Ramaswami, J., delivering the judgment observed: (SCC pp. 265-66, para 11)
"11. When a court accepts an undertaking given by one of the parties and passes orders 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 proceedings 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."
42. In Mohd. Aslam v. Union of India MANU/SC/0111/1995 : (1994) 6 SCC 442, this Court dealt with the contempt proceedings raising the issues as to the amenability of the State and of its Ministers for failure of obedience to the judicial pronouncements. In this case, the Chief Minister of Uttar Pradesh had made a statement before National Integration Council that the Government of Uttar Pradesh will hold itself fully responsible for the protection of the Ram Janma Bhumi-Babri Masjid structures. Upon this statement of the Chief Minister, this Court had passed an order. However, in the contempt proceedings it was alleged that the orders passed on the basis of the statements made have been deliberately and willfully flouted and disobeyed by the State of Uttar Pradesh. While dealing with the expression "undertaking", this Court observed as under: (SCC p. 453, para 22)
"The Chief Minister having given a solemn assurance to the National Integration Council and permitted the terms of that assurance to be incorporated as his own undertaking to this court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he placed before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence."
43. In Rita Markandey v. Surjit Singh Arora MANU/SC/0540/1997 : (1996) 6 SCC 14, this Court came to the conclusion that even if the parties have not filed an undertaking before the Court, but 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, even then the party would be guilty of committing contempt of court. The Court observed as under: (SCC p. 20, para 12)
"12. Law is well settled that 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 this Court the question of his being punished for breach thereof does not arise. However, in our considered view 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."
44. In K.C.G. Verghese v. K.T. Rajendran MANU/SC/0042/2003 : (2003) 2 SCC 492, this Court dealt with the "undertaking" in contempt proceedings arising out of eviction proceedings. This Court held that when at the time of giving the undertaking, the tenant did not indicate that he was in possession of a part of the premises and not the other portion nor was such a stand taken in any of the pleadings before the High Court or rent controller, the order of eviction passed against the tenant is equally binding upon the occupant of the other portion.
45. This Court again had occasion to deal with a case in Bank of Baroda v. Sadruddin Hasan Daya MANU/SC/1031/2003 : (2004) 1 SCC 360. In that case, the Court clearly observed as under: (SCC p. 361 g)
"The willful breach of an undertaking given to a court amounts to "civil contempt" within the meaning of Section 2(b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to the Supreme Court in the consent terms they are clearly liable for having committed contempt of court."
46. The respondents placed reliance on Babu Ram Gupta v. Sudhir Bhasin MANU/SC/0053/1979 : (1980) 3 SCC 47. In this case admittedly no application, affidavit or any undertaking were given by the appellant. Therefore, this case is of no assistance to the respondents. In this case, the Court observed that: (SCC p. 53, para 10)
"Even the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would handover possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an undertaking".
The Court even in this case observed that: (SCC p. 53, para 10)
"In fact, the reason why a breach of clear undertaking given to the court amounts to contempt of court is that the contemnor by making a false representation to the court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution."
(emphasis in original)"
16. Applying the ratio of the aforesaid judgments to the facts of the instant case, it would be noticed that even the so-called consent order does not incorporate expressly or even impliedly any undertaking which may have been given either by the respondent or by his counsel before the Court to the effect that he would hand over the possession of the property. Rather, the execution petition had been ordered to be dismissed as withdrawn in view of the compromise entered into between the parties.
17. As already observed, the default clause in the agreement with respect to failure on the part of the respondent to vacate the premises is already envisaged and covered under para 3 of the agreement as reproduced in para-10 (supra). Therefore, in such circumstances, the consent order passed on the basis of the compromise arrived at between the parties cannot be construed to be an undertaking given by the respondent to vacate the premises.
18. Once, it is found that there was no undertaking given by the respondent, the question of contempt does not arise. Similar issue came up before the Hon'ble Supreme Court in Anil K. Surana and another versus State Bank of Hyderabad (2007) 10 SCC 257 and it was held as under:-
"6. We are not inclined to go into the question as to whether or not the High Court could have imposed a sentence higher than that which has been provided under the Contempt of Courts Act. We find that no undertaking was given by the appellant either on that date or on a subsequent date. The directions to pay by installments can at best be treated as a decree. We hold that by consent of parties an executable decree was passed in favour of the respondent Bank. The remedy of enforcing the decree can only be by way of execution proceedings. We thus clarify that it will be open to the respondent to take out execution proceedings.
7. In our view, the contempt proceedings were not the correct remedy. We, therefore, set aside the impugned order to the extent that it punishes the appellants for contempt and sentences them as stated above."
19. In view of the foregoing discussion, we do not find any offence to have been committed by the respondent so as to initiate proceedings under Section 2(b) of the Act. Accordingly, there is no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. However, the petitioner is at liberty to execute the order in accordance with law.
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