Firm Ganpat
Ram Rajkumar Vs. Kalu Ram & Ors [1989] INSC 286 (22 September 1989)
Mukharji,
Sabyasachi (J) 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 provisions of sections 2(b) & 20 of the Contempt of
Courts Act 1971--Attracted.
HEAD NOTE:
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 Eviction) Act, 1973 and obtained a decree of eviction. Petitioner'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 plaintiffs
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 reasoning he issued the injunction.
Being
unable to obtain possession of the property in question, Kalu Ram and Ant. who were respondents in Special 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 possession to the applicants. The effect of the said order of this Court,
is that the applicants would have vacant possession 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 partners 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 SubJudge. 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 directed 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
&
CIVIL APPELLATE JURISDICTION: Civil Miscellaneous Petition 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.
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
eviction 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 Petition 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 petitioner to the
benefit of putting back into possession 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 possession 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, restraining the present applicants from ejecting Sanjay Kumar and Lala
Ram. It may be mentioned that Ganpat Ram and Rajkumar 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 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 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 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 implemented 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 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 parties before this Court when this Court passed the order on the 24th
August, 1987 nor are those parties successors-ininterest, 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 appellant, 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 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 possession 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 entertaining 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 application 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 application, 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 assessed 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 disposed of.
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