Judgment:
Contempt Petition (C) No.249 of 2006 In Special Leave Petition (C)
No.21766 of 2005
G.P. Mathur, J.
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
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 in 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
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.
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