Chhaganbhai Norshinbhai Vs. Soni
Chandubhai Gordhanbhai & Ors [1976] INSC 74 (23 March 1976)
BEG, M. HAMEEDULLAH 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.
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 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 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 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.
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