ivil Misc
Petition C No 13066 of 1989
IN Civil Appeal No 2628 of 1980
563 AK Sen and VB Joshi for the Petitioner
GL Sanghi CM Lodha Shankar Ghosh HM Singh and CP Mittal for the Respondents
The Judgment of the Court was delivered by V RAMASWAMI 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 whosoever is in possession of the suit premises be handed over to the petitioner
The peti tioner as the owner and landlord of the property Tika No 3 City Survey House bearing No 344345 Jambli Naka Thane consisting of ground floor first floor and second floor in which the business of restaurant known as Ramakr ishna Hindu Hotel or Ramakrishna Hotel is carried on filed Civil Suit No 2 13 of 1970 in the Court of Civil Judge Senior Division Thane against the first respondent and four others by name PA Dange VA 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 Dis trict 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 5 did not file the appeal or take the matter fur ther to the High Court they were implead as respondents in the appeal and the writ petition filed by the first respond ent 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 contin ue to be in possession and carry on the business till 3131989 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 indicat ing within the 564 time aforesaid the decree of execution shall become executa ble forthwith In pursuance of this order the first respondent KMM Shetty filed an undertaking on 5101987
The first respond ent through his advocate had produced the muster roll show ing 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
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 2 13 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 541989 the IIIrd Joint Civil Judge Thane granted a temporary injunc tion 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 KMM Shetty and also against the second respondent who was the plaintiff in Civil Suit No 306 of 1989
The second respondent has filed a reply statement in which he has contended that PA Dange had taken over the hotel business which was being carried on by the tenant KMM Shetty in the name and style of Ramkrishna Hindu Hotel at the ground floor of the suit premises on 29111986 and under an agreement dated 2nd January 1967 the said PA Dange with the consent of the tenant trans ferred 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 181972 under which the second re spondent 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 565 rejoinder has been filed by the landlord petitioner to this reply
As stated earlier the Suit No 213 of 1970 was filed by the petitioner for eviction not only against the original tenant KMM Shetty but also against PA Dange VA Dange and two others
The case of the petitioner landlord was that the tenant had sub let the premises to the said PA Dange defendant No 2 and VA Dange defendant No 3
The tenant filed written statement contending that he had allowed the second defendant to manage and conduct the said hotel busi ness under the terms and conditions set out 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 PA Dange nor VA Dange ever stated that they had parted with the posses sion 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 PA Dange was permitted to conduct the said business under an agreement dated 29th February 1970 on his paying the tenant a sum of Rs500 per month by way of royalty that this agreement was subsequently renewed on 29th January 1970 increasing the royalty amount from Rs500 to Rs600 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 respond ent 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 compensa tion equivalent to rent every month regularly to the peti tioner herein and that he shall not induct anybody else in the premises in question
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 instiga tion of the first respon 566 dent and charged collusion between first and second respond ent and stated that the suit is based on false and ficti tious allegations intentionally made to postpone the date of delivery of the premises
The first respondent sent a reply to this notice on 2381989 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 peti tioner by 3131989 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 re spondent had stated that the petitioner has with ulterior motives deliberately withheld from this Hon ble Court mate rial facts ie the respondent No 1 has not been in land lord s knowledge in the suit premises since 1967 ie 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 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 sweating false affidavits and making false state ments and obtaining orders on the basis of such false state ments
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 moti vated by a desire to spite the landlord and to deprive him of the possession it would clearly be an abuse of the proc ess of the Court
Throughout PA 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 567 the Court about the possession being with the second re spondent
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 under taking 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 from PA 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 KMM Shetty PA Dange and VA 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 insti gated the second respondent to file the suit and obtain an injunction
If this contention is true then the first re spondent 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 abetor 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 pro ceedings 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 568 was any doubt as to the executability of the decree passed by this Court
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 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 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 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 under taking 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 per sons 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 circum stances 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 immediate ly and issuing necessary further and consequential direc tions for enforcing the same
In the foregoing circumstances we find the first re spondent guilty of committing contempt by wilful disobedi ence of the undertaking given by him in this Court and accordingly we convict him and 569 sentence him to pay a fine of Rs500 within the period of four weeks failing which he shall suffer simple imprison ment 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
However we discharge the rule issued against the second respondent


Summary:
The petitioners daily rated workers of the respondent Corporation appointed between 1983 and 1986 sought a writ of mandamus to regularise their services in the respective units and payment of wages at par with regularly appointed employees of the respondent performing the same or similar duties
The Industrial Tribunal which was directed by the Court to examine the matter found that all the petitionerswork men were performing same or similar duties as were performed by the incumbents of Group D  posts of the respondent Corporation and concluded that on the principle of equal pay for equal work  enshrined in Article 39d read with Articles 14 and 16 of the Constitution they were entitled to equal pay for equal work in relation to the regular employ ees
It further held that non regularisation due to uncer tainty of the contract was only a pretence which was not valid in law and that reversion of some of the petitioners for lack of requisite educational qualification was discrim inatory arbitrary and an abuse of power by the management
The respondent assailed the findings on merits pointing out various contentions raised in its pleading objections and the documents filed before the Tribunal
It also con tended that it had not consented to dispense with adducing oral evidence and that despite the direction of the Court to submit a preliminary report the Tribunal was wrong in 514 stating that the respondent had agreed that the Tribunal would send the final report
Allowing the writ petitions the Court Head l
The petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties in the respondent Corpora tion and are entitled to the scale of pay and allowances revised from time to time for the said posts
518D 2
The statement of facts recorded by a Court or Quasi judicial Tribunal in its proceedings as regards the matters which transpired during the hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum
It may be open to a party to bring such statement to the notice of the CourtTribunal and to have it deleted or amended It was not therefore open to the respondent in the instant case to say that the proceed ings recorded by the Tribunal were incorrect
517C D 3
Practical experience would always aid a person to effectively discharge the duties and is a sure guide to assess his suitability
The initial minimum educational qualification prescribed for the different posts is undoubt edly a factor to be reckoned with but it is so at the time of the initial entry into service
517H518A In the instant case the petitioners were appointed between the period 1983 and 1986 and eversince they have been working and had gained sufficient experience in the actual discharge of duties attached to the posts held by them
Once the appointments were made and they were allowed to work for a considerable length of time as such it would be hard and harsh to deny them confirmation in the respec tive posts on the ground that they lack the prescribed educational qualifications
Three years  experience ignoring artificial break in service for short periodperiods created by the respondent in the circumstances would be sufficient for confirmation
Since the petitioners satisfy the require ment of three years  service so calculated 40 of the sen ior most of them should be regularised with immediate effect and the remaining 118 should be regularised in a phased manner before April 1 1991 and promoted to the next higher post according to the standing orders 517G518B D 4
Those of the petitioners who were ousted from service pending 515 the writ petitions to be reinstated immediately
518D E