NOORALI BABUL THANEWALAversusK.M.M. SHETTY AND ORS.

                NOORALI BABU1.- THANEWALA
                                                                             A
                             v.
                  K.M.M. SHETTY AND ORS.

                        DECEMBER 20, 1989

        [S. MUKHARJI, CJ. AND V. RAMASWAMI, J.]                              B

      Contempt of Courts Act, 1961: Breach of Injunction or undertak-
ing given to Court-Misconduct amounting to contempt-Punishment
by imprisonment of fine.

       The Petitioner-landlord filed a suit No. 213 of 1970 for eviction
against the first respondent and four others in the court of Civil Judge,    c
Senior Division, Thane. The suit was decreed by the Trial Court. The
first respondent alone filed an appeal before the District Court. The
appeal was dismissed confirming the eviction. Thereafter the first
respondent filed a Writ Petition in the High Court of Bombay which
was also dismissed. The first respondent then filed Civil Appeal             D
No. 2628 of 1980 in this Court which was dismissed by this Court on
18.8.1987. However at the request of the appellant this Court had
allowed him to continue to be in possession and carry on the business till
31.3.89 subject to the appellant and all his employees in the business
filing an usual undertaking in the Court that they will hand over and
deliver vacant possession of the premises on the expiry of the period        E
mentioned above and will go on depositing the mesne profits until pos-
session is delivered. In pursuance of this order an undertaking was filed
by the first respondent as also by persons shown as his employees and
staying in the premises.

      Sometime in the beginning of 1989 one Raghuram A. Shetty               F
Second respondent in this Petition filed Civil Suit No. 306 of 1989 in the
Thane Civil Court for a declaration that the decree for eviction
obtained in respect of the premises in question in civil suit No. 213 of
1970 cannot be executed against him and for a permanent injunction
against the Petitioner herein. He also moved an application for a
temporary injunction from executing the said decree. The Thane Civil         G
Court granted a temporary injunction as prayed. That is how the
Petitioner herein filed this contempt petition both against the original
tenant K.M.M. Shetty and the second respondent-the Plaintiff in Civil
Suit No. 306of1989.

      After discussing in detail the various developments of the case        H

                                   561
    562         SUPREME COURT REPORTS                [1989] Supp. 2 S.C.R.

A   brought about by the first respondent as well as by the 2nd respondent
    herein, this Court directed that the order granting injunction against
    the Petitioner from executing the eviction decree against the 2nd respon-
    dent shall not be operative and that the Petitioner is entitled to execute
    the decree for eviction against all persons who are in possession of the
    property.
B
          While holding the first respondent guilty of committing contempt
    by wilful disobedience of the undertaking given by him in this court, the
    Court,

          HELD: Breach of an injuction or breach of any undertaking given
C   to a Court by a person in civil proceedings on the faith of which the
    Court sanctions a particular course of action is misconduct amounting
    to contempt. [568F]

          The remedy in such circumstances may be in the form of a direc-
D   lion to the contemnor to purge the contempt or a sentence of imprison-
    ment or fine or all of them. [568F]
          When a court accepts an undertaking given by one of the parties
    and passes an order based on such undertaking, the order amounts in
    substance to an injunction restraining that party from acting in breach
    thereof. [5680 I
E
          The breach of an undertaking given to the Court by or on behalf
    of a party to a civil proceeding 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
F
    disobedience to an order for an injunction. [5680-E]
          In the light of this Court's finding in the instant case, that there
    was a breach of the undertaking mere imposition of imprisonment or
    fine will not meet the ends of justice. There will have to be an order to
    purge the contempt by directing the first respondent-contemnor to de-
G   liver vacant possession immediately and issuing necessary further and
    consequential directions for enforcing the same. [568G I
         CIVIL APPELLATE JURISDICTION: Civil Misc. Petition
    (C) No. 13066 of 1989.
                           IN
H         Civil Appeal No. 2628 of 1980.
      N.B. THANEWALA v. K.M.M. SHEITY [V. RAMASWAMI, J.]             563

      A.K. Sen and v:B. Joshi for the Petitioner.                            A


     G.L. Sanghi, C.M. Lodha, Shankar Ghosh, H.M. Singh and
C.P. Mittal for the Respondents.

                                                                             B
     The Judgment of the Court was delivered by


       V. RAMASW AMI, J. In this petition the petitioner has prayed
for convicting Respondents 1 and 2 for committing the contempt of
this Court by violating the terms and conditions of the undertaking
filed in Civil Appeal No. 2628 of 1980 and for a direction that              c
whosoever is in possession of the suit premises be handed over to the
petitioner. The petitioner as the owner and landlord of the property,
Tika No. 3; City Survey House, bearing No. 344/345, Jambli Naka,
Thane, consisting ~f ground floor, first floor and second floor in which
the business of restaurant known as Ramakrishna Hindu Hotel or               D
Ramakrishna Hotel is carried on, filed Civil Suit No. 213 of 1970 in the
Court of Civil Judge, Senior Division, Thane, against the first respon-
dent and four others, by name, P.A. Dange, V.A. Dange, Haribhan
Shivale and Giri Anna Shetty for eviction from the above said pre-
mises. The suit was decreed by the Trial Court. The first respondent
who was the first defendant in the suit alone filed an appeal against this   E
decree before the District Court. The appeal was dismissed confirming
the order of eviction. Thereafter, the first respondent filed writ peti-
tion No. 354 of 1975 in the High Court of Bombay and that writ
petition was also dismissed. Though defendants 2, 3, 4 and 5 did not
file the appeal or take the matter further to the High Court they were
implead as respondents in the appeal_ and the writ petition filed by the     F
first respondent herein. The first respondent thereafter filed Civil
Appeal No. 2628 of 1980. The said appeal was dismissed by this Court
on 18th of August, 1987. However, at the request of the appellant this·
Court allowed the appellant to continue to be in possession and carry
on the business till 31.3.1989 subject to the "appellant and all those
persons who are now occupying the premises as employees or staff and         G
are staying in the premises file an usual undertaking in this Court
within eight weeks from today stating inter alia that they will hand over
and deliver over vacant possession of the premises on the expiry of the
period mentioned above and also indicate that they will go on deposit-
ing the mesne profits until the possession is delivered. In default of
furnishing or filing the undertaking in the manner indicating within the
    564         SUPREME COURT REPORTS               [1989) Supp. 2 S.C.R.

  time aforesaid the decree of execution shall become executable
A forthwith."
          In pursuance of this order the first respondent K.M.M. Shetty
    filed an undertaking on 5 .10 .1987. The first respondent through his
    advocate had produced the muster roll showing the names of persons
    employe_d by him for running the hotel business in the suit premises as
B   well as a list of persons staying in the said hotel. This list showed 17
    persons as being the employees and persons staying in the hotel, and as
    directed by this Court the 17 person~ also filed an undertaking.

          Some time in the beginning of 1989 one Raghuram A. Shetty-
    second respondent in the contempt application filed Civil Suit No. 306
c   of 1989 in the Thane Civil Court before the Illrd Joint Civil Judge,
    Senior Division, Thane, for a declaration that the decree for eviction
    obtained in respect of the suit premises in Civil Suit No. 213 of 1970
    cannot be executed against him and for a permanent injunction against
    the petitioner herein. Pending the suit he had.also filed an application
D   under Order 39 Rule 1 and 2 read with section 151 of CPC for a
    temporary injunction from executing the decree for eviction. By an
    order dated 5.4.1989, the Hird Joint Civil Judge, Thane, granted a
    temporary injunction against the petitioner herein restraining him
    upto the disposal of Civil Suit No. 306 of 1989 from executing the
    decree for eviction given in Civil Suit No. 213 of 1970. Thereafter, the
E   petitioner has filed this contempt petition both against his original
    tenant-K.M.M. Shetty and also against the second respondent who
    was the plaintiff in Civil Suit Nu. 306 of 1989.

          The second respondent has filed a reply statement in which he
    has contended that P.A. Dange had taken over the hotel business
F   which was being carried on by the tenant-K.M.M. Shetty in the name
    and style of "Ramkrishna Hindu Hotel" at the ground floor of the suit
    ~premises on 29 .11.1986 and under an agreement dated 2nd January,
     1967 the said P.A. Dange with the consent of the tenant transferred
    the said business and the exclusive possession of the hotel to the
    second respondent herein. Subsequently there was another agreement
G   executed between the tenant and the second respondent on 1.8.1972
    under which the second respondent was paying royalty to the tenant
    and that to the knowledge of the petitioner he was in the occupation of
    the premises and carrying on the business and that in spite of it he had
    not been impleaded in the eviction suit or the subsequent proceeding
    and that therefore he was not bound b}' the decree for eviction. A
       N.B. TIIANEWALA v. K.M.M. SHETTY (V. RAMASWAMI, J.]            565

rejoinder has been filed by the landlord-petitioner to this reply.
                                                                             A
       As stated earlier the Suit No. 213 of 1970 was filed by the
petitioner for eviction not only against the original tenant-K.M.M.
Shetty but also against P.A. Dange, V.A. Dange and two others. The
case of the petitioner-landlord was that the tenant had sub-let the
premises to the said P.A. Dange-defendant No. 2 and V.A. Dange-              B
defendant No. 3. The tenant filed written statement contending that
he had allowed the second defendant to manage and conduct the said
hotel business under the terms and conditions set oµt under an agree-
ment made and entered into between them and that Municipal licence
for the business had always been and still in the name of the tenant-
first defendant. Neither P.A. Dange nor V.A. Dange ever stated that
they had parted with the possession to the second respondent eithr as a      c
licensee or in any other capacity. Again in the Writ Petition No. 354 of
1975 filed in the High Court the first respondent had stated that P.A.
Dange was permitted to conduct the said business uuder an agreement
dated 29th February, 1970 on his paying the tenant a sum of Rs.500 per
month by way of royalty, that this agreement was subsequently                D
renewed on 29th January, 1970 increasing the royalty amount from
Rs.500 to Rs.600 per month but, however, during the pendency of the
appeal before the learned District Judge, Thane, defendants 2 and 3
had returned the business together with the premises, stock-in-trade,
furniture, fittings and all paraphernalia which were given to them for
conducting the said business to the first respondent herein and that the     E
first respondent had been in sole possession and occupation of the said
premises and of the business conducted therein and he himself had
been carrying on the business from that time. Again in this Court when
he filed the special leave petition the first respondent prayed for stay
of dispossession. This Court by an order dated 5th November, 1980
granted stay of dispossession on condition that the respondent will          F
continue to pay compensation equivalent to rent every month regu-
larly to the petitio\ler herein and that he shall not induct anybodyelse
in the premises in question.


      When the petitioner received notice in Civil Suit No. 306 of 1989
                                                                             G
he sent the lawyer's notice dated 14th March, 1987 to the first respon-
dent inviting his attention to the undertaking given by him to vacate
the premises before the 31st of March, 1989 and the consequences that
may follow, if in breach of the said undertaking, he does not hand over
possession. In this notice he also brought to the notice of the first
respondent that the suit was filed at the instigation of the first respon-
    566          SUPREME COURT REPORTS               [ 1989] Supp. 2 S.C.R.

A dent and charged collusion between first and second respondent and
  stated that the suit is based on false and fictitious allegations intention-
  ally made to postpone the date of delivery of the premises. The first
  respondent sent a reply to this notice on 23.8.1989 stating that he is not
  at all concerned in any manner whatsoever with the suit filed by the
  second respondent, and that he would be filing necessary affidavit in
B the Suit No. 306 of 1989. The first respondent filed an affidavit in the
  suit in which also he stated that he had nothing to do with the suit filed
  by the plaintiff and denied the claim of the plaintiff and further stated
  that the suit premises had to be handed over to the petitioner by
  31.3.1989 as per his undertaking given in this Court. He had also
  prayed the Court to pass "such suitable orders to facilitate complian,ce
C of the orders" of this Court in respect of the suit premises. he had
  enclosed copy of his reply to the lawyer's notice sent by him to the
  petitioner along with this affidavit. However, for the first time in the
  reply filed to the contempt application the first respondent h'!d stated
  that "the petitioner has with ulterior motives deliberately withheld
  from this Hon'ble Court material facts i.e. the respondent No. 1 has
D not been (in landlord's knowledge) in the suit premises since 1967 i.e.
  even before the suit for eviction was filed in the trial court" and that
  "at that time of final hearing of the appe.al, it was landlord's duty to
  bring to the notice of this Hon 'ble Court that the answering respon-
  dent is not in possession of the dispute premises." He had further
  stated that when the undertaking was filed by him he was not in posses-
E sion of the suit premises and that it was well within the knowledge of
  the landlord. He had also stated that the second respondent had been
  in possession of the suit property. We cannot now accept this state-
  ment of the first respondent that he was not in possession at the time
  when he gave the undertaking on the facts and circumstances stated
  above. If the second respondent is in possession as he claims now, it
F would mean that the first respondent had been playing a fraud on the
  Court, and swearing false affidavits and making false statements and
  obtaining orders on the basis of such false statements. It may be noted,
  however, that there was absolutely no need for making such false
  allegations and obtain orders which are of no use to him if he had not
  been in possession, as stated now. If it is said that he might have been
G motivated by a desire to spite the landlord and to deprive him of the
  possession it would clearly be an abuse of the process of the Court.


          Throughout P.A. Dange and the first respondent -who were
    stated to have given a licence to the second respondent for carrying on
H   the business were parties to the proceedings but they never informed
       N.B. TIIANEWALA v. K.M.M. SHETTY [V. RAMASWAMI, J.J           567

the Court about the possession being with the second respondent. As
already stated the learned counsel for the first respondent produced in     A
this Court at the time of hearing of the Civil Appeal the muster roll for
running the hotel as well as a list of persons who are stated to be
staying in the hotel. In that list the second respondent's name did not
find a place. Now if the first respondent states that the second respon-
dent had been in the possession of the suit premises and carrying on        B
the hotel business ever since 2nd January, 1967 the first respondent is
guilty of deliberately suppressing the facts and giving a false undertak-
ing to this Court that he is in possession of the suit premises.


       In the Civil Suit No. 306 of 1989, the second respondent had
prayed for the injuction on the basis that he was a licensee originally c
from P.A. Dange and later under the tenant himself and that though
there was no privity between the petitioner and the second respon-
dent, by reason of certain amendments to the Bombay Rents, Hotel
and Lodging House Rates Control Act he had become the tenant
directly under the petitioner herein and entitled to protection. An
interim injuction has been granted by the Hird Joint Civil Judge, D
Thane, on the ground that it is necessary, till the plaintiff establishes
his right, to allow him to be in possession. The learned Judge was not
well-founded in this view. In the light of the earlier statements made
by the first respondent-K.M.M. Shetty, P.A. Dauge and V.A. Dange
in the eviction proceedings and in this Court and in the light of the
undertakings given by the first respondent and 17 others the learned E
Judge should have directed the plaintiff to prove his claim in the suit
first before any relief is given against the defendants pending the suit.
It may be mentioned that the argument of the learned counsel of the
petitioner was that the first respondent had falsely instigated the
second respondent to file the suit and obtain an injunction. If this
contention is true then the first respondent is guilty of contempt in not F
handing over vacant possession as per the undertaking and in fact the
second respondent would equally be guilty as abetor of the breach.
However, we are not going into the question of the second respon-
dent's right in Civil Suit No. 306 of 1989 and that may have to be
decided after trial. Suffice it to say that we are of the view that the
order of injunction aginst the petitioner from executing the decree G
against the second respondent is not justified in this case. We would
like to add that as the facts of the undertaking given and the various
statements made by the tenant in the eviction proceedings were before
him, we would have expected the learned Civil Judge, Thane, to have
directed the parties to obtain a clarification from this Court, if !here
                                                                          H
    568         SUPREME COURT REPORTS               [1989] Supp. 2_ S.C.R.

A was any doubt as to the executability of the decree passed by this
  Court.

        Be that as it may, we now direct that that port10n of the order
  granting injunction .against the petitioner from executing the eviction
  decree against the second respondent, on the facts and circumstances
B of this case, shall not be operative and that petitioner is entitled to
  execute the decree for eviction against all persons who are in posses-
  sion of the property.

        Now coming to the question of relief that is to be granted to the
  petitioner and the punishment to be imposed on the first respondent,
C the learned counsel for the first respondent contended that his client is
  an old man of more than 84 years and that in fact though he was willing
  to hand over vacant possession, on the facts and circumstances he
  could not comply with undertaking bona fide.

       When a court accepts an undertaking given by one of the parties
D 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
E undertaking is treated as an order so that an 11ndertaking, 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 amount-
F ing to contempt. The remedy in such circumstances may be in the form
  of a direction to the contemnor to purge the contempt or a sentence
  imprisonment or fine or all of them. On the facts and circumstances of
  this case in the light of our finding that there was a breach of the
  undertaking we think that mere imposition of imprisonment or fine
  will not meet the ends of justice. There will have to be an order to
G purge the contemp\ by directing the first respondent-contemnor to
  deliver vacant possession immediately and issuing necessary further
  and consequential directions for enforcing the same.

        In the foregoing circumstances, we find the first responrlent
  guilty of committing contempt by wilful disobedience of the undertak-
H ing given by him in this Court and accordingly we convict him and
           N.B. THAJ!!EWALA v. K.M.M. SHElTY [\'. RAMASWAMI, J.]        .569

    sentence i)im to pay a fine of Rs.500 within the period of four weeks,     A
    failing which he shall suffer simple imprisonment for one month, ;md
    ajso direct him to deliver vacapt possession of the premises fortbwith
    to the petitioner to the extent possible by him. We further direct the
    Pistrict Magistrate, Thane, to evict all those who are in physical pos-
    session of the property including the 2nd respondent apd his men and
    if necessary with police help and give vacant possession of the premises   B
    to the petitioner forthwith.

         However, wi: discharge the rule issued against the second
    nispondent.

    R.N,J.




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