Full Judgment Text
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PETITIONER:
(MRS.) ROSHAN SAM
Vs.
RESPONDENT:
B.R. COTTON MILLS LTD. AND ORS.
DATE OF JUDGMENT06/04/1990
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
KULDIP SINGH (J)
SAHAI, R.M. (J)
CITATION:
1990 AIR 1881 1990 SCR (2) 381
1990 SCC (2) 636 JT 1990 (3) 522
1990 SCALE (1)718
ACT:
Contempt of Courts Act, 1971: Section 2(b)--Civil Con-
tempt-Nature of proceeding----Punishment of
Contemnor--Standard of proof required.
Constitution of India, 1950: Article 142(1)--Jurisdic-
tion of Supreme Court--Exercise of in a contempt proceeding
in order to do justice.
Bombay Rents, Hotel and Lodging House Rates (Control)
Act, 1947: Eviction of tenant--Time granted for vacating
premises--Undertaking to give vacant possession
filed--Declaratory suit for sub-tenancy filed and stay
obtained thwarting execution of eviction decree--In order to
do justice, Court directing landlord to be put in possession
of suit premises pending disposal of declaratory suit.
HEADNOTE:
The appellant-landlord obtained a decree of eviction of
respondent No. 1 company from the suit premises. Aggrieved,
respondent No. 1 filed a Writ Petition before the High
Court. Dismissing the Petition, the High Court granted eight
weeks’ time to respondent No. 1 for vacating the suit prem-
ises, subject to the filing of an undertaking that it will
not part with the possession of, or create third party
interest in, the suit premises in any manner whatsoever.
After some correspondence respondent No. 3, by an affidavit,
filed the required undertaking on behalf of respondent No. 1
but without mentioning that the respondent No. 1 had not
already parted with possession of the suit premises or
created any third party interest therein. Later, counsel for
respondent No. 1 clarified that when the undertaking stated
that respondent No. I would not part with possession it
meant that respondent No. 1 was in possession. But, in the
meantime, respondent No. 2 Chairman of respondent No. 1
Company filed a suit claiming a declaration that he was the
lawful sub-tenant and the decree for possession was a nulli-
ty and obtained an injunction, thus preventing the appellant
from executing the decree. Thereupon, the appellant filed a
petition for contempt before the High Court praying that the
respondents should be punished under the provisions of the
Contempt of Courts Act, 1972. The High Court rejected the
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petition.
381
In the appeal before this Court, it was contended on
behalf of the landlord-appellant that the High Court was in
error in holding that no contempt was established against
the respondents, that the undertaking clearly implied that
respondent No. 1 was in possession of the premises and was
in a position to hand over vacant and peaceful possession of
the same after eight weeks, which was also made clear from
the clarification given by counsel for respondent No. 1 that
this assurance/undertaking was false, as by that time re-
spondent No. 2, had already filed a suit claiming sub-tenan-
cy from respondent, that the record disclosed that respond-
ents No. 1 and 2, were acting in collusion with a view to
defeat the decree obtained by the appellant and to prevent
the execution of the decree and that the resolution of the
respondent No. 1 under which respondent No. 2 was claiming
sub-tenancy was fabricated and antedated.
It was submitted on behalf of the respondent that before
a Court could take any action for contempt, it must be
strictly established that the contempt had been proved
beyond reasonable doubt, as an action for contempt was in
the nature of a criminal proceeding.
Allowing the appeal, this Court,
HELD: . I The Proceedings in the contempt are quasi-
criminal in nature, and law of contempt has to be strictly
interpreted, and the requirements of that law must be
strictly complied with before any person can be committed
for contempt. However, where there is patent dishonesty writ
large on the face of the record, the law does not require
that this Court should sit back with folded hands and fail
to take any action in the matter. In exercise of its juris-
diction under clause (1) of Article 142 of the Constitution,
this Court may pass such decree or make such order as is
necessary for doing complete justice in any case or matter
pending before it. [391G-H; C-D]
1.2 In the instant case, respondent No. 1 gave an under-
taking based on an implication or assumption which was false
in its knowledge and to the knowledge of respondent No 2.
Respondent No. 2 was equally instrumental in the giving of
this undertaking. This implication or assumption was made
explicit by the clarification given by the counsel for
respondent No. 1. Respondent No. 2 was equally responsible
for instructing counsel to give this clarification which was
false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to
deceive the Court and the appellant. In view of this, it
cannot be said that they are not guilty of contempt.
382
Respondent No. 1 is guilty of misconduct amounting to con-
tempt and must be held to have committed contempt by giving
the undertaking and instructing its counsel to give the
clarification of the meaning of the undertaking knowing
fully well that it was not in possession of the suit prem-
ises, and was not in a position to give possession of the
suit premises, to the appellant in execution of the decree
in favour of the appellant or otherwise. There is no doubt
that respondent No. 2 was a party to this breach of the
undertaking being committed and, in fact, it was at his
instance that respondent No. 1 committed the breach of the
undertaking. [391H, 392A-B, 391E-F]
1.3 Respondents No. 1 and 2 cannot be allowed to thwart
the execution of the decree and continue to remain in pos-
session of the suit premises. No doubt, the claim set up by
respondent No. 2 in the declaratory suit filed by him to
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establish that he is a sub-tenant of the suit premises and
entitled to protection of the Bombay Rents, Hotel and Lodg-
ing House Rates (Control) Act, 1947 cannot be foreclosed.
However, by reason of any interim order obtained in that
suit, the appellant can no longer be deprived of the posses-
sion of the said premises pursuant to the decree obtained by
her, till the claim in the declaratory suit is established.
[392C, E]
1.4 The Court Receiver. High Court, who has already been
appointed should appoint the appellant as his agent in place
of the existing agent, and hand over possession of the suit
premises to her on such terms and conditions as he may think
fit. It would be open to respondent No. 2 to apply for
vacation or variation of the order, in the event of his
being able to establish his right to sub-tenancy. [392G,
393C]
Noorali Babul Thanewala v. Sh. K.M.M. Shetty and Ors.,
J.T. 1989 4 S.C. 573, relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1778 of
1990.
From the Judgment and Order dated 5.7.1988 of the Bombay
High Court in Contempt Petition No. 106 of 1987.
P. Chidambaram, Ms. Raian Karanjawala, Mrs. Manish
Karanjawala and Mrs. Meenakshi Arora for the Appellant.
K.S. Cooper, K. Parasaran, Anil B. Divan, A.S. Bhasme,
P.H. Parekh, Sunil Dogra, Gopal Subramaniam, Ms. Indu Malho-
tra for the Respondents.
383
The Judgment of the Court was delivered by
KANIA, J. Leave granted. The appeal is taken up for
final hearing. Counsel heard.
The short facts necessary for the disposal of the appeal
are as follows:
The appellant is the owner of a Bungalow known as "Villa
Hormazd" at 8-A, Carmichel Road, Bombay. The suit premises,
comprising two floors of the said bungalow, were leased to
Mayer Mills Ltd. under a lease deed dated April 16, 1948 for
a period of three years from November 1, 1947. At that time,
the bungalow belonged to the father of the appellant. On the
death of the father of the appellant in 1949, the appellant
became the landlady of the said bungalow. Respondent no. 1,
B .R. Cotton Mills. Ltd., is the successor-in-interest of
Mayer Mills Ltd. and at the relevant time was in possession
of the suit premises as a tenant. Respondent no. 2 is the
Chairman of respondent no. 1 and the other respondents are
some of the Directors of respondent no. 1. The appellant
filed a suit being R.A.E. No. 763/ 6563 of 1966 in the Small
Causes Court at Bombay for eviction of respondent no. 1 from
the suit premises and for possession on the ground of rea-
sonable and bona fide requirement. During the pendency of
this suit, another suit for eviction was also filed by the
appellant against respondent no. 1 for eviction on the
ground of default in the payment of rent for a period of
more than six months. The Trial Court by its judgment dated
September 13, 1975 decreed the aforesaid eviction suit
R.A.E. No. 763/6563 of 1966 (hereinafter referred to as "the
said suit") but the other suit for eviction filed by the
appellant was dismissed in view of the eviction decree
passed in the said suit. Respondents nos. 1 and 2 filed an
appeal against the decree for eviction but the said appeal
was dismissed. In February, 1986, the husband of the appel-
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lant died and after that the appellant is the landlady of
the said bungalow. On the other hand, the appeal of the
appellant against the dismissal of her other suit, for
eviction on the ground of default in payment of rent was
allowed and that suit was also decreed against respondent
no. 1. The respondent then filed a writ petition in the High
Court at Bombay challenging the decrees for eviction passed
by the Court of Small Causes as aforestated. On February 27,
1987, respondent no. 2 filed a suit in the Court of Small
Causes for a declaration that he was the lawful sub-tenant
of the suit premises and was not bound by the decrees of
eviction passed in respect of the suit premises against the
tenant, namely, respondent no. 1. The said Writ Petition
384
No. 1066 of 1987 filed by respondent no. 1 challenging the
decrees for eviction passed against respondent no. 1 in the
said suits and confirmed in appeal came up for hearing
before a learned Single Judge of the Bombay High Court on
March 5, 1983. The learned Judge by his judgment and order
of the same date, dismissed the said writ petition. The
relevant part of the order of the learned Judge reads as
follows:
"The petitioner requests for time of eight weeks to vacate
the premises. He is granted the said time subject to execut-
ing written undertaking that he shall not part with the
possession of the suit premises or create third party inter-
ests in the suit premises in the meantime in any manner
whatsoever. ’ ’
On March 11, 1987, the matter was brought up again
before the learned Single Judge by learned counsel for the
appellant for pointing out that respondent no. 1 had not
filed the requisite undertaking as directed under the order
dated 5.3. 1987. It appears that at that stage it was point-
ed out to the Court by Mr. Dalvi, learned counsel for the
appellant that respondent no. 2 had filed a declaratory suit
in the Court of Small Causes as aforestated claiming to be
the sub-tenant of the suit premises. The order of the
learned Judge dated March 11, 1987 shows that the learned
Judge stated that he did not wish to take any action at that
time on the conduct of respondent no. 1 but, as a last
chance, granted respondent no. 1 time upto March 17, 1987
for furnishing the undertaking as ordered failing which it
would be deemed that the condition was not fulfilled. Re-
spondent No. 3, as a Director of respondent no. 1, by his
affidavit, affirmed on March 17, 1987, gave an undertaking
merely stating that respondent no. 1 would not commit any
act contrary to or in breach of the order dated March 5,
1987. It was pointed out by the appellant that this under-
taking was not in compliance with the orders passed by the
learned Single Judge. After some correspondence, respondent
no. 3, by his affidavit affirmed on March 25, 1987 filed an
undertaking on behalf of respondent no. 1 inter alia stating
that respondent no. 1 would not part with the possession of
suit premises or create any third party interest in the suit
premises in any manner whatsoever. The undertaking did not
state that respondent no. 1 had not, before the undertaking
was given parted with the possession of the suit premises or
created any third party interest therein. When the matter
came up on March 31, 1987 before the learned Single Judge
who had given time to respondent no 1 to vacate as afore-
stated, it was pointed out by learned counsel for the appel-
lant that the undertaking was objected to as it did not
state that
385
respondent no. 1 was in possession. Thereupon Shri R.J.
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Joshi, learned counsel for respondent no. 1 Company, stated
that the undertaking spoke for itself and when it stated
that respondent "shall not part with possession" it meant
that respondent no. 1 company was in possession. In view of
this, the learned Judge did not give any further clarifica-
tion. Respondent No. 1 preferred a special leave petition to
this court against the judgment of the learned Judge dis-
missing the said writ petition but the said special leave
petition was dismissed. Thereafter the suit filed by re-
spondent no. 2 in the Court of Small Causes for a declara-
tion that he was the lawful sub-tenant of the suit premises
was dismissed but he preferred an appeal against the said
decision and in that appeal obtained an interim injunction
restraining the appellant from interfering with his posses-
sion of the suit premises. In view of this, the decree for
eviction could not be executed. Thereafter in June 1987, the
appellant filed Contempt Petition No. 106 of 1987 in the
Bombay High Court setting out the facts and praying that the
respondents should be punished under the provisions of the
Contempt of Courts Act, 1971. It has been inter alia alleged
in the contempt petition by the appellant that in spite of
the said undertaking, respondent no. 2 had filed a suit,
being suit no.2911 of 1987 in the City Civil Court at Bombay
claiming a declaration that the decree for possession was a
nullity and for an injunction restraining the appellant from
executing the decree and obtained an ad-interim injunction a
few days after the summary dismissal of the special leave
petitions filed by the respondents in this Court as afore-
stated. The said suit was thereafter dismissed for non-
prosecution but, in the meantime, respondent no. 2 filed the
suit in the Court of Small Causes for a declaration that he
was the lawful sub-tenant of the premises as aforestated. It
was submitted by the appellant in the contempt petition that
the said undertaking given by respondent no. 1 clearly
implied that on the date of the undertaking, respondent no.
1 was in possession of the suit premises and in order to
defeat the decree for possession, respondent no. 1 had set
up its Chairman, respondent no. 2, to file the aforesaid
suit in the Court of Small Causes claiming sub-tenancy. It
was further submitted by the appellant that although re-
spondent no. 1 continued to be in possession of the suit
premises it had set up respondent no. 2 to file the suit on
the ground that he was in possession of the suit premises as
a sub-tenant in his own right and continued to be in posses-
sion thereof. The learned Judge before whom the said con-
tempt petition came up for hearing took the view that in the
order of the learned Single Judge dated March 5, 1987, he
was unable to read any direction to file an undertaking to
give possession. He took the view that the aforesaid under-
taking given on behalf of respondent no. 1, that it would
not part
386
with possession or create any third party interest in the
suit premises, did not imply that respondent no. 1 was in
actual physical possession of the suit premises and that the
fact that respondent no. 2 was claiming an independent title
in himself as a sub-tenant by virtue of a Resolution of
respondent no. 1 was not sufficient to hold that respondent
no. 1 or the other respondents were guilty of contempt. He
took the view that there was no undertaking by respondent
no. 1 to deliver possession of the suit premises and on the
basis of these conclusions, he rejected the contempt peti-
tion. At the same time the learned Judge did observe that
respondent no. 1 may have indulged in sharp practices but
held that it was not guilty of contempt. The present appeal
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is directed against this order.
It was submitted by Mr. Chidambaram, learned counsel for
the appellant that respondent no. 1 and respondent no. 2
were guilty of contempt and the learned Single Judge was in
error when he took the view that no contempt was established
in the matter against the respondents. It was submitted by
learned counsel that on 5th March, 1987 when the writ peti-
tion preferred by respondent no. 1 was summarily rejected by
Justice Puranik of the Bombay High Court, learned counsel
for respondent no. 1, on instructions, made an application
to the learned Judge to grant respondent no. 1 time for
eight weeks to vacate the suit premises. This time was
granted subject to respondent no. 1 executing an undertaking
that he would not part with the possession of the premises
or create third party interests therein as set out earlier.
After delaying the matter for some time, respondent no. 3
filed on March 25, 1987, an affidavit, as a director of
respondent no. 1 wherein he set out inter alia that respond-
ent no. 1 agreed to give an undertaking as set out earlier
as respondent no. 1 was desirous of approaching the Supreme
Court to challenge the order of the learned Judge dismissing
the writ petition. It was submitted by Mr. Chidambaram that
this undertaking clearly implied that respondent no. 1 was
in possession of the premises and was in a position to hand
over the vacant and peaceful possession of the suit premises
after eight weeks, if the special leave petitions preferred
by respondent no. 1 were dismissed or no interim relief was
obtained thereunder. This undertaking was taken note of by
Justice Puranik when the case reached before him on March
31, 1987. It appears that an objection was taken to the
language of the said undertaking on the ground that it did
not state that respondent no. 1 was in possession of the
suit premises and thereupon, Mr. R.J. Joshi, learned counsel
for respondent no. 1, stated that the undertaking spoke for
itself and that when it stated that respondent no. 1 shall
not part with the possession of the suit premises it
387
meant that respondent no. 1 was in possession of the prem-
ises. It was submitted that this statement must have been
made after taking proper instructions and that, by instruct-
ing its counsel to make the statement, respondent no. 1 had
clearly attempted to mislead the Court and the appellant. It
was urged that, m any event, this undertaking clearly im-
plied that if no interim order was obtained by respondent
no. 1 from this Court, respondent no. 1 would hand over the
possession of the premises to the appellant. This
assurance/undertaking was false to the knowledge of the
appellant, as by that time, respondent no. 2 had already
filed a suit in the Court of Small Causes claiming sub-
tenancy from respondent no. 1 and had obtained an interim ex
parte injunction restraining the appellant from executing
the decree in her favour. It was submitted that the record
discloses that respondent Nos. 1 and 2 were acting in collu-
sion with a view to defeat the decree obtained by the appel-
lant and to prevent the execution of the decree. It was
contended on behalf of the appellant that the resolution of
respondent no. 1 under which respondent no. 2 was claiming
sub-tenancy was fabricated and antedated.
It was, on the other hand, contended by Mr. Cooper,
learned counsel for respondent no. 1 that no contempt was
made out by the appellant in the matter. He vehemently
argued that the case for taking action in contempt, set up
by the appellant, was one of civil contempt. Under the
provisions of sub-clause (b) of section 2 of the Contempt of
Courts Act, 1971, in order to establish civil contempt, the
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alleged contemner must be proved to be guilty of wilful
disobedience to any judgment, decree direction, order writ
or other process of a Court or wilful breach of an undertak-
ing given to a court. He drew our attention to the statement
contained in Halsbury’s Laws of England, Volume 9 IVth
Edition, at para 66 (page 40) that the court will only
punish as a contempt a breach of injunction if satisfied
that the terms of the injunction are clear and unambiguous,
that the defendant has proper. notice of the terms and that
breach of the injunction has been proved beyond reasonable
doubt. It was further submitted by him that there is no such
thing in law as an implied contempt. Learned counsel urged
that, in the present case, there was no mandatory injunction
or order given by the court to the effect that respondent
no. 1 must vacate the premises after eight weeks from 5th
March when the undertaking was agreed to be given. It was
submitted that even if a view was taken that, in these
circumstances, respondent no. 1 must be held to have given
an undertaking to give possession of the said suit premises
to the appellant after the said period of eight weeks, there
was no wilful breach on the part of respondent no. 1 in not
complying with that undertaking as
388
it was respondent no. 2 who was claiming to be in possession
of the said premises in his independent right as a lawful
sub-tenant and it was he who had obtained an interim injunc-
tion from the Small Causes Court. It was urged by learned
counsel that so far as respondent no. 2 was concerned he had
not given any personal undertaking to the court. It was
submitted by learned counsel for all the respondents that
before a court could take any action for contempt it must be
strictly established that the contempt had been proved
beyond reasonable doubt as an action for contempt was in the
nature of a criminal proceeding.
Mr. Cooper drew our attention to the decision of this
Court in The Aligarh Municipal Board & Ors. v. Ekka Tonga
Mazdoor Union and Others, [1970] 3 SCC p. 98 wherein it has
been held that "In order to bring home a charge of contempt
of Court for disobeying orders of Courts those who assert
that the alleged contemners had knowledge of the order must
prove that fact beyond reasonable doubt. In case of doubt,
however, benefit ought to go to the person charged." He
further relied upon the decision of this Court in Babu Ram
Gupta v. Sudhir Bhasin & Anr., [1979] 3 SCR p. 685 wherein a
Bench of two learned Judges of this Court held that "it is
not open to the Court to assume an implied undertaking when
there is none on the record."
We now propose to examine the facts appearing on the
record in the light of the aforesaid submissions and deci-
sions. What we do find on the record is that when the writ
petitions filed by respondent no. 1 in the High Court were
dismissed by Puranik, J. by his order dated 5th March, 1987,
learned counsel for respondent no. 1 applied for time for
eight weeks to vacate the premises and the learned Judge
gave the said time to respondent no. 1 to vacate the prem-
ises subject to its filing a written undertaking that it
would not part with the possession of the suit premises or
create third party interest in the suit premises. It may be
that time to vacate was applied for as respondent no. 1
desired to file an appeal to the Supreme Court. The fact,
however, remains that, if the claim of respondent no. 2 is
correct, on that day he was already a lawful sub-tenant of
the suit premises and occupying the same. Respondent no. 2
was none other than the Chairman of respondent no. 1 compa-
ny. It is, therefore, inconceivable that respondent no. 1
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could have been unaware of the claim of respondent no. 2. It
is, therefore, apparent that respondent no. 1 clearly tried
to mislead the court when it gave instructions through its
officers to learned counsel appearing for respondent no. 1
to apply for time to vacate the premises and remained silent
when time was given on the condition that a written under-
taking as aforestated would be filed, suppressing from the
389
court the fact that respondent no. 2 claimed to be the sub-
tenant of the said premises and we have no doubt that re-
spondent no. 2 must have been a party to this course of
action. After some hesitation, the written undertaking was
filed as aforestated which clearly implied that respondent
no. 1 was in possession of the suit premises and in a posi-
tion to hand over possession of the suit premises to the
appellant after the period of eight weeks expired. Respond-
ents Nos. 1 and 2 knew fully well that this was not possible
unless respondent no. 2 gave up his claim which he had no
intention of doing. Further, on March 31, 1987 learned
counsel for respondent no. 1 appeared in court and stated
that the undertaking spoke for itself and when it stated
that respondent no. 1 would not part with the possession of
the premises it meant that respondent no. 1 was in fact in
possession thereof. As we have already pointed out respond-
ent no. 2 was and continued to be the Chairman of respondent
no. 1; his nephew, Prem Kumar Gupta, who was residing in the
said premises in 1973, according to the evidence given by
him in the Court of Small Causes, was a Director of respond-
ent no,. 1 company. After all, respondent no. 1 is a company
and it can have no knowledge or intention other than .the
knowledge and intention of the people who control it. We
have no doubt at all that it was respondent no. 2 who, along
with some of his family members, was in full charge of the
affairs of respondent no. 1 company. In these circumstances,
it appears clear to us that all the actions taken by the
legal advisors and counsel of respondent no. 1 including, in
particular, the giving of the aforesaid undertaking as well
as the clarification given by learned counsel regarding the
meaning of that undertaking as aforestated were with the
fullest knowledge and consent of respondent no. 2. It is
impossible to maintain this dichotomy, for the purposes of
the contempt petition, between respondent no. 1 and respond-
ent no. 2. Respondent no. 2 knew fully well when he autho-
rised the giving of the undertaking on behalf of respondent
no. 1 or consented to its being given that respondent no. 1
was in no position to hand over possession of the suit
premises in execution of the decree because respondent no. 2
claimed to be in possession of the said premises and claimed
subtenancy rights in the same and had no intention whatsoev-
er of giving up the claim. In fact, the entire course of
conduct adopted on behalf of respondent no. 1 was only with
one aim in view and that was to frustrate or to at least
delay indefinitely the execution of the decree which the
appellant had obtained after the lapse of many years and
after such sustained and lengthy legal proceedings which
must have caused the appellant considerable expenses and
anguish. It is significant that till Mr. R.J. Joshi, the
learned counsel, who gave the clarification in respect of
the said undertaking was alive, no contention was ever
390
raised that the clarification was given by him without
taking instructions or that respondent no. 1 or respondent
no. 2 were not aware of the same. It was only after the
sudden demise of the learned counsel that this contention
was first raised by respondent no. 1. This conduct speaks
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volumes for the dishonest attitude adopted by respondents
nos. 1 and 2. Raising this contention after the death of Mr.
R.J. Joshi can only be regarded as one more of the tricks
which respondents nos. 1 and 2 have played throughout the
case in order to defeat and delay the execution of the
decree for possession against respondent no. 1.
In the circumstances set out earlier, although the
learned Judge of the High Court might have felt constrained
by what he considered to be the limits of his jurisdiction
in a contempt proceeding, we feel that our hands are not so
tied and, where there is patent dishonesty on the part of
respondents Nos. 1 and 2 writ large on the face of the
record, the law does not require that we should sit back
with folded hands and fail to take any action in the matter.
We find that under clause (1) of Article 142 of the
Constitution, it is provided that this court in exercise of
its jurisdiction may pass such decree or make such order as
is necessary for doing complete justice in any case or
matter pending before it and any decree so passed or order
so made shall be enforced throughout the territory of India
in the manner set out therein. In the circumstances which we
have already set out earlier, we are of the view that re-
spondent no. 1 is guilty of misconduct amounting to contempt
and must be held to have committed contempt by giving the
said undertaking and instructing its counsel to give the
clarification of the meaning of the said undertaking as
aforestated knowing fully well that it was not in possession
of the suit premises and was not in a position to give
possession of the suit premises to the appellant in execu-
tion of the decree in favour of the appellant or otherwise.
It is significant that the claim of sub-tenancy set up by
respondent no. 2 is pursuant to an alleged resolution of
respondent no. 1. We have also no doubt that respondent no.
2 was a party to this breach of the undertaking being com-
mitted and, in fact, it was he at whose instance respondent
no. 1 committed the breach of the undertaking as aforestat-
ed. We are, of course, quite conscious of the fact that the
proceedings in the contempt are quasi-criminal in nature,
that the law of contempt has to be strictly interpreted and
that the requirements of that law must be strictly complied
with before any person can be committed for contempt. Howev-
er, as we have pointed out, respondent no. 1 gave an under-
taking based on an implication or assumption which was false
to its knowledge and to the knowledge of respondent
391
no. 2. Respondent no. 2 was equally instrumental in the
giving of this undertaking. This implication or assumption
was made explicit by the clarification given by the learned
counsel for respondent no. 1 as set out earlier. Respondent
no. 2 was equally responsible for instructing counsel to
give this clarification which was false to the knowledge of
both, respondents Nos. 1 and 2. Both respondent no. 1 and
respondent no. 2 have tried to deceive the Court and the
appellant. In view of this, we fail to see how it can be
said that they are not guilty of contempt. Even assuming
that a view were to be taken that no contempt has been
technically established against respondents Nos 1 and 2
(with which view we do not agree), we cannot allow the
matter to rest there and fail to take any action and, in
particular, we cannot allow respondents Nos. 1 and 2 to
thwart the execution of the decree in this manner at this
stage and continue to remain in possession of the suit
premises. We find some support for the course of action
which we are taking from the decision of this Court in
Noorali Babul Thanewala v. Sh.K.M.M. Shetty and others, J.T.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
1989 4 S.C 573 where, on facts which bear some similarity to
the facts of this case, a Division Bench of this Court held
that "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 amounting to
contempt." At the same time, we are conscious of the fact
that we cannot altogether foreclose the claim set up by
respondent no. 2 in the declaratory suit filed by him in the
Court of Small Causes to establish that he is a sub-tenant
of the suit premises and entitled to the protection of the
Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947.
However, we are firmly of the view that by reason of any
interim order obtained in that suit and till that claim is
finally established, the appellant can no longer be deprived
of the possession of the said premises pursuant to the
decree for eviction obtained by her. All the necessary
parties to that suit are before us and have had and adequate
opportunity to be heard.
In these circumstances, we allow the appeal and set
aside the impugned order passed by the High Court and pass
in its place the following order:
The Court Receiver, High Court of Bombay who has already
been appointed by our order dated January 25, 1990 shall
take possession of the suit premises from the present agent
and shall appoint the appellant as his agent in respect of
the suit premises and hand over possession to the appellant
of the suit premises on such terms and conditions as the
Court Receiver may think fit but with the limitation
392
that the royalty for use and occupation of the suit premises
shall be limited to the actual outgoings plus a sum of
Rs.200 per month in order to meet unforeseen contingencies.
This order shall be complied with within a period of eight
weeks from a copy of this order being served on the Court
Receiver. It is clarified that the possession of the prem-
ises will be taken from whoever might be in possession
thereof and, if the Court Receiver finds any difficulty in
obtaining possession, he shall take the necessary assistance
from the police authorities. It is further clarified that
this order shall supersede any interim orders which might
have been passed by the Court of Small Causes or the Bombay
City Civil Court or any other Court excepting this Court. In
the event of respondent no. 2 being able to finally estab-
lish his right to the sub-tenancy of the suit premises as
claimed by him in the declaratory suit in the Court of Small
Causes, it shall be open to him to apply for vacation or
variation of this order as he may be advised. Respondents
Nos. 1 and 2 to pay the appellant the costs of this appeal
fixed at Rs.20,000 the liability for the payment of the said
aggregate amount being joint and several as between respond-
ents Nos. 1 and 2. As far as respondent no. 3 is concerned,
we do not propose to take any action against him.
N.P.V. Appeal
allowed.
394