FIRM GANPAT RAM RAJKUMARversusKALU RAM & ORS.

                FIRM GANPAT RAM RAJKUMAR
                                                                               A
                            v.
                     KALU RAM & ORS.

                        SEPTEMBER 22, 1989

        [SABYASACHI MUKHARJI AND B.C. RAY, JJ.]                                B

      Contempt of Courts 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.

       The Respondent filed proceedings for eviction against the Peti-
.tioner firm in respect of a property situated at Narnaul under the            c
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
;ilso dismissed on 24.8.87. While dismissing the Special Leave Petition
this Court inter alia directed that the order of eviction shall not be         D
executed for a period of six months on the Petitioner's filing usual under·
taking 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 threeo(
Sanjay Kumar and Lala Ram sons of Rajkumar and Ved Prakash who                 E
are sons of Ganpat Ram (a partner in the petitioner's firm) filed a so.it
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 ofRoshan Lal and also against Ganpat Rai.                  F

      The learned Senior Subordinate Judge in his order dated 12.2.88
granting illjunction 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 reason-       G
ing he issued the injunction.

      Being unable to obtain possession of the property in question,
 Kalu Ram and Anr. who ·were respondents in Special Leave Petition
·(decree holders) have filed this Petition praying for initiation of Con-
 tempt of Court proceedings against the Petitioner-firm.                       H
                                    223
    224          SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

          Disposing of the Petition with some directions th!s Court,
A
          HELD: On the date of the order of this Court dated 21st August
    1987, in the Spedal 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
B   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
c   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 cal-
D   culated attempt to defeat the order of this Court and to mislead the
    Court. Suns and grandsons of the partners or erstwhile partners of the
    firm cannot be allowed to frustrate the order of this Court. [227G-H; 228AJ

          The Respondents, all of them, were guilty of acts which had to the
    situation and thereby frustrate the order of this Court. Though perhaps
E   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-Ej

P          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. [2308 I

          The Court accordingly directed the learned Senior Sub-Judge,
    1'arnaul (Haryana) to cause, deliver up the vacant possession of the
G   slJop situated at Sabji Mandi Narnaul Dist!. Mohindergarh (Haryana),
    if necessary with the help of police forthwith. The learned Senior Sub-
    j udge 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, Lain Ram and Ved Prakash are directed to pay to the applic-
H   ants the costs of this Application, quantified·atRs.2,500. This order will
        FIRM G.R. RAJ KUMAR v. KALU RAM [MUKHARJI, J.l               225

not prevent or prejudice the applicants from taking any step for reco-
                                                                            A
very of arrears of rent and mesne profits as they are entitled to· in
accordance with law, [ZJOC-E]

    . Babu Ram Gupta v. Sudhir Bhasin & Anr., [1979]3SCR 685 and
Thackar Hariram Motiram v. Balkrishan Chatrathu Thacker & Ors.;
[1988] 3 JT SC 18; referred to.                                             B

      CIVIL APPELLATE JURISDICTION: Civil Miscellaneous
Petition No. il03 ofl989.

                                   I1'i

      Special Leave Petition No. 5597 of 1987.
                                                                            c
    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.                                      D

      C.M. Ashri and S.M. Ashri for the Respondents.

      The Judgment of the Court was delivered by

      SAB\'ASACHI MUKHARJI, J, This application is by Kalu Rani             E
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 pro-
perty 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           F
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:
                                                                            G
            In view of the finding that the landlord has made out a case
            for eviction under Section i3(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        H
    226         SUPREME COURT REPORTS               [1989) Supp. I S.C.R.

                today. The dismissal of the Special Leave Petition should
A
                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
B               before this Court in some other cases i.e. W.P. Nos. 13385,
                9921-24of 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
C 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 accommo-
  dation in the re-constructed building provided the Court laid down
  such condition while interpreting the provisions of the Act.
D
         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
E deliver vacant and peaceful possession to the landlord or the respon-
  dent. As mentioned hereinbefore, the petitioner did not file the under-
  taking though it had obtained time from this Court on that plea. Furt-
  hermore, the petitioner did not vacate the premises in question. It
  appears that Sanjay Kumar and Lala Ram sons ofRajkumar and Ved
  Prakash who as sons of Ganpat Ram filed a s11it in the court of Senior
F 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 San jay Kumar and Lala Ram
G 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 San jay Kumar, Lala Ram-minor sons of Rajkumar and
  Ved Prakash, son of Ganpat Ram as partners in the said firm, made
H the order of injunction.
         FIRM G.R. RAJ KUMAR v. KALU RAM [MUKHARJI, J.]                227

      The said suit was instituted against Kalu Ram and Puran Chand
                                                                              A
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, N arnaul 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          B
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,            c
 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 capa'.Jle 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    D
applicants would have vacant possession from the firm, Ganpat Ram
Rajkurnar. 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 under-          E
taking 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           F
Court and confirmed by this Court by dismissing the Special Leave
Petition on the terms mentioned hereinbefore on 24th August, 1987 is
to be enfotced or implemented? In our opinioll, the siid order rrlustbe
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            G
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        H
    228         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

A   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,
B   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-in-interest, according to law, of those who
    were bound by the order dated 24th August, 1987, as such. As we look
C   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
D   685, wherein pending decision of a dispute between the parties refer-
    red 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
E   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
f   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 Con-
    tempt 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
G   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
H   in its order and fails to honour that undertaking then a wilful breach of
         FIRM G.R. RAJ KUMAR v. KALU RAM [MUKHARJI, J.]                229

the undertaking would amount to an offence punishable under the
                                                                              A
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 under-
taking 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    B
conduct, overt or otherwise, herein misled this Court. Indubitably, in
the instant case, the decree of.eviction was passed by the learned Sr.
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 piea that the petitioner firm would file an
undertaking. All this could riot have happened if the present plaintiffs
in the Narnaul suit had not consented or allowed it to be. passed or          c
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          D
and it interferes with the right of those who are found guilty of con-
tempt, no court should allow any party to mislead the court and
thueby frustrate its order. In the aforesaid view of the matter, we are ot
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 E
order dated 24th August, 1987 and see that vacant and peaceful pos-
session 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 Hariram Motiram v. Balkrishan Chatrathu Thacker
& Ors., [1988] 3 JT SC 18. That decision was, however, on the ques-
tion of entertaining a Special Leave Petition or not. Special leave was. F
not entertained in that case because the petitioner therein had
ob.tained 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 peti-
tion, this Court was induced to grant some time on certain considera-
tions. It appears that this Court was mislead. It further appears that G
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 contem_pt, either on its own motion or otherwise, after       H
    230         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

A   the expiry of a period of one year from the date on which the conte1'1pt
    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
B
    application was well within the period of one year. Failure to give
    possession, if it amounts to a contempt in a situation of this naiure 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
C Sr. Sub-Judge, Narnaul (Haryana) to cause deliver up the vacant pos-
  session of the shop situated at Sabji Mandi, Namaul, Distt. Mohinder-
  garh (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 applica-
D lion, but we direct that the respondents, namely, firm Gan pat Ram
  Rajkumar, Ganpat Ram, Rajkumar, Sanjay Kumar, Lala Ram and
  Ved Prakash should pay and bear the costs of this application tu 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 applicaiion. This order will not prevent or pre-
E judice 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                                             Petjtion disposed of.