Full Judgment Text
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PETITIONER:
CHHAGANBHAI NORSHINBHAI
Vs.
RESPONDENT:
SONI CHANDUBHAI GORDHANBHAI & ORS.
DATE OF JUDGMENT23/03/1976
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1976 AIR 1909 1976 SCR (2) 786
1976 SCC (2) 951
ACT:
Contempt of Courts Act, 1971, s. 19(1)(b)-Order of High
Court obtained by giving express undertakings-Deliberate
breach-Plea of ‘consent order’-Misconduct amounting to
contempt of court.
HEADNOTE:
The defendant-appellant obtained an order of the High
Court by giving an express undertaking to vacate the suit-
premises within a month and a half of receiving a notice
from the plaintiff-respondents that they required the same.
The undertakings were deliberately flouted, and the
appellant did not tender an apology at any stage. The High
Court convicted him under the contempt of courts Act, 1971,
s. 19(1)(b) for misconduct amounting to contempt. The
appellant contended before this court that there had been no
breach of any undertaking, and that he had only entered into
an agreement to which an order of the court had been
appended.
Dismissing the appeal, the Court,
^
HELD : This is a case of a perverse and deliberate
flouting of undertakings given by a litigant who, evidently
had no intention to abide by them. The undertakings seem to
have been taken very lightly by him as mere cloaks for
obtaining an order which would not have been passed but for
the undertakings. [787F-G]
(2) The case before us being a case of a deliberate
violation of an undertaking to the court, the effect was the
same as that of breach of an injunction. [788-C]
Halsbury’s Laws of England 4th Edn. Vol. 9 page 42
(para 71) and page 44 (para 75) Dashwood v. Dashwood (1927)
(71 Sol. Jo 911) referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 88 of
1975.
From the Judgment and Order dated the 10-1-75 of the
Gujarat High Court in N.C.A. 576/74 in C.R.A. No. 1020 of
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1971.
M. F. Thakkar and S. S. Khanduja for the Appellant.
M. C. Shah and M. V. Goswami for Respondents.
The Judgment of the Court was delivered by
BEG, J.-This is an appeal under Section 19(1) (b) of
the contempt of Courts’ Act, 1971. The defendant-appellant
was convicted by the Division Bench of the High Court of
Gujarat for having deliberately violated an order secured
from the High Court on 22 January, 1973, upon undertakings
given to it. The very first term of the order is :
"The defendant gives solemn undertaking to this
Hon’ble High Court that he will vacate suit premises by
handing over the key of the premises to the Court of
the Civil Judge, Junior Division, Anand, in pursuance
of the decree within one and a half months after
receipt of the notice from the Plaintiffs that the
plaintiff Dr. I. C. Boni has returned from abroad and
intends to start medical practice in the suit
premises".
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He also undertook to clear the arrears of mesne profits and
to continue to pay them regularly as and when due.
Furthermore, he undertook not to part with possession in
favour of any person other than the landlord decree-holder
until he received the notice contemplated by the first
condition. It is not disputed that the appellant received
that notice on 10 October, 1974. There is nothing in the
conditions of the undertaking to imply that it was merely a
consent order passed upon an agreement between the parties
to which the order of the Court had been superadded. The
order incorporated express undertakings to the Court
although these may have induced the plaintiff to agree to
the passing of the order in the form in which it was passed
instead of pressing for an order of dismissal of the
revision application before the High Court after which he
could have executed his decree immediately. This feature, in
itself, could not convert the order actually passed upon the
undertakings given into a mere consent order. It was clearly
a case of express undertakings to the court incorporated in
the order. The order passed on 22 January, 1973, ended as
follows :
"In view of the respective undertakings given by
the parties to this proceeding which undertakings are
on record, the petitioner does not wish to proceed with
this CRA and does not, therefore survive. The
application is dismissed. No order as to costs in this
circumstance of the case."
The defendant-appellant not only did not abide by the
undertakings given to the High Court but his Counsel took up
the impossible position that it was a mere agreement between
the parties to which an order of the Court had been
appended. On this flimsy and unsustainable ground, an
argument put forward before us was that there was no breach
of any undertaking. The High Court found that express
undertakings had been violated. We have no hesitation
whatsoever in holding that the High Court’s finding is
correct upon the recorded admissions on behalf of the
defendant-appellant. It is true that the defendant appellant
surrendered possession after the initiation of contempt
proceedings in 1974. But, that made no difference to the
initial wrong committed.
Another feature of the case is that the appellant gave
no sign of even regret at any stage not to mention an
apology of any kind. Even in this Court, learned Counsel for
the appellant took up the impossible position that there had
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been no breach of any undertaking. We agree with the High
Court that this is a case of a perverse and deliberate
flouting of undertakings given by a litigant who, evidently,
had no intention to abide by them. The undertakings seemed
to have been taken very lightly by him as mere cloaks for
obtaining an order which would not have been passed but for
the undertakings. The High Court rightly observed that it
had no option except to convict the appellant and to
sentence him to three months imprisonment in civil jail.
Before parting with this case we may refer to
Halsbury’s Laws of England-Fourth Edn. o1. 9, page 42
(paragraph 71) where, after citing Dashwood v. Dashwood(1)
for the proposition that, when a
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party fails to comply merely with the terms of a consent
order, "the remedy of the injured party is to apply, not for
committal, but for an order for specific performance or an
injunction, and then to base proceedings for contempt on any
subsequent breach", the observation is made : "Where,
however, there is an express direction or undertaking in the
body of the order, a breach will enable an immediate
application for committal to be made". In the same volume,
at page 44 (para 75) we find the law thus stated :
"An undertaking given to the court by a person or
corporation in pending proceedings, on the faith of
which the court sanctions a particular course of action
or inaction, has the same force as an injunction made
by the court and a breach of the undertaking in
misconduct amounting to contempt".
The case before us being a case of a deliberate
violation of an undertakings to the Court the effect was the
same as that of breach of an injunction.
Consequently, finding ourselves in agreement with the
High Court, we affirm the judgment and order of the High
Court and dismiss this appeal with costs.
M.R. Appeal dismissed.
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