MANU/SC/0077/1990

Equivalent Citation: AIR1990SC 464, 1990(1)ARC 131, 1990C riLJ316, 1990(1)RC R(C riminal)155, 1990(1)RC R(Rent)82, 1989(2)SC ALE1426,
(1990)1SC C 259, [1989]Supp2SC R561

IN THE SUPREME COURT OF INDIA

Civil Misc. Petition (Civil) No. 13066 of 1989 In Civil Appeal No. 2628 of 1980
Decided On: 20.12.1989
Appellants:Noorali Babul Thanewala
Vs.
Respondent:K.M.M. Shetty and Ors.
Hon'ble Judges/Coram:
Sabyasachi Mukherjee, C.J. and V. Ramaswami, J.
Counsels:
For Appellant/Petitioner/Plaintiff: A.K. Sen and V.B. Joshi, Advs
For Respondents/Defendant: G.L. Sanghi, C.M. Lodha, Shankar Ghosh, H.M. Singh
and C.P. Mittal, Advs.
Case Note:
Contempt of Court - Breach of Undertaking - Contempt of Courts Act, 1971 -
Petition to initiate contempt proceedings on ground of failure to give vacant
possession - Respondent under took to surrender vacant possession - Third
person claiming to be tenant under respondent obtained injunction against
eviction - Affidavit filed by respondent along with undertaking did not
mention anything about possession of third person - Respondent cannot put
forth defence of third party possession for failure to surrender possession -
sub tenancy to third person created to defeat eviction - Respondent directed
to hand over vacant possession - injunction granted to third party set aside
- Respondent convicted for contempt of Court.
ORDER
V. Ramaswami J.
1 . 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 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 of ground floor, first floor and second
floor in which the business of restaurant known as Ramakrishna Hindu Hotel or
Ramakrishna Hotel is carried on, filed Civil Suit No. 213 of 1970 in the Court of Civil
Judge, Senior Division, Thane, against the first respondent and four others, by name,
P.A. Dange, V.A. Dange, Haribhan Shivale and Giri Anna Shetty for eviction from the
above said premises. 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 decree
before the District Court. The appeal was dismissed confirming the order of eviction.
Thereafter, the first respondent filed writ petition No. 354 of 1975 in the High Court
of Bombay and that writ petition was also dismissed. Though defendants 2, 3, 4 and

19-11-2021 (Page 1 of 5) www.manupatra.com Army Law School

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 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
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 depositing the mesne profits until the possession is
delivered. In default of furnishing or filing the undertaking in the manner indicating
within the time aforesaid the decree of execution shall become executable forthwith.
2. 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 employed by him for running the hotel business in
the suit premises as 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 persons also filed an undertaking.
3 . Some time in the beginning of 1989 one Raghuram A. Shetty-second respondent
in the contempt application filed Civil Suit No. 306 of 1989 in the Thane Civil Court
before the IIIrd 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 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 IIIrd 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 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 No. 306 of 1989.
4. The second respondent has filed a reply statement in which he has contended that
P.A. Dange had taken over the hotel business 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 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 by the decree for eviction. A rejoinder has been filed by
the landlord-petitioner to this reply.
5. 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. Danger-defendant No. 2 and V.A. Dange-

19-11-2021 (Page 2 of 5) www.manupatra.com Army Law School

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 out under an agreement 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 either as a 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 under 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
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 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 continue to pay compensation equivalent to rent every month regularly to the
petitioner herein and that he shall not induct anybody else in the premises in
question.
6 . When the petitioner received notice in Civil Suit No. 306 of 1989 he sent the
lawyer's notice dated 14th March, 1987 to the first respondent 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 respondent and
charged collusion between first and second respondent and stated that the suit is
based on false and fictitious allegations intentionally 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 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 compliance 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 had
stated that "the petitioner has with ulterior motives deliberately withheld from this
Hon'ble Court material facts i.e. the respondent No. 1 has 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 appeal, it was
landlord's duty to bring to the notice of this Hon'ble Court that the answering
respondent is not in possession of the dispute premises." He had further stated that
when the undertaking was filed by him he was not in possession 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 statement of the first respondent that he was not in possession at the time

19-11-2021 (Page 3 of 5) www.manupatra.com Army Law School

when he gave the undertaking on the facts and circumstances stated above. If the
second respondent is in possession as he claims now, it 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 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.
7. Throughout P.A. Dange and the first respondent who were stated to have given a
licence to the second respondent for carrying on the business were parties to the
proceedings but they never informed the Court about the possession being with the
second respondent. As already stated the learned Counsel for the first respondent
produced in 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 respondent had been in the possession of the suit
premises and carrying on the hotel business ever since 2nd January, 1967 the first
respondent is guilty of deliberately suppressing the facts and giving a false
undertaking to this Court that he is in possession of the suit premises.
8 . In the Civil Suit No. 306 of 1989, the second respondent had prayed for the
injection on the basis that he was a licensee originally from P.A. Dange and later
under the tenant himself and that though there was no privity between the petitioner
and the second respondent, 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 IIIrd Joint Civil Judge, 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. Dange 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 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 handing over vacant possession as per
the undertaking and in fact the second respondent would equally be guilty as abettor
of the breach. However, we are not going into the question of the second
respondent'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 against the
petitioner from executing the decree 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 there was any doubt as to the executability
of the decree passed by this Court.
9. Be that as it may, we now direct that that portion of the order granting injunction
against the petitioner from executing the eviction decree against the second
respondent, on the facts and circumstances of this case, shall not be operative and

19-11-2021 (Page 4 of 5) www.manupatra.com Army Law School

that petitioner is entitled to execute the decree for eviction against all persons who
are in possession of the property.
10. 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, 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.
11. When a court accepts an undertaking given by one of the parties 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 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 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 amounting 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 purge the contempt by
directing the first respondent-contemnor to deliver vacant possession immediately
and issuing necessary further and consequential directions for enforcing the same.
12. In the foregoing circumstances, we find the first respondent guilty of committing
contempt by wilful disobedience of the undertaking given by him in this Court and
accordingly we convict him and sentence him to pay a fine of Rs. 500 within the
period of four weeks, failing which he shall suffer simple imprisonment for one
month, and also direct him to deliver vacant possession of the premises forthwith to
the petitioner to the extent possible by him. We further direct the District Magistrate,
Thane, to evict all those who are in physical possession of the property including the
2nd respondent and his men and if necessary with police help and give vacant
possession of the premises to the petitioner forthwith.
13. However, we discharge the rule issued against the second respondent.

© Manupatra Information Solutions Pvt. Ltd.

19-11-2021 (Page 5 of 5) www.manupatra.com Army Law School