JUDGMENT [ENTITY], J.
1. We have heard Sri [ENTITY], senior advocate appearing along with Sri [ENTITY] for the appellant and Sri [ENTITY] appearing on behalf of respondent No. 1.
2. By this appeal, the appellant has challenged the judgment dated 23rd October, 2002 passed by learned single Judge in [CASE NUMBER]. [PRECEDENT]., allowing the writ petition filed by respondent No. 1.
3. The facts giving rise to this appeal, briefly stated, are ; father of respondent No. 1 moved an application under [SECTION] of [ACT], for release of accommodation of which appellant was tenant. The release application was rejected by Rent Control and Eviction Officer vide his order dated 13th January, 1987. A revision was filed against the above order which too was dismissed vide order dated 20th November, 1990. Father of respondent No. 1, late Sri [ENTITY], filed [CASE NUMBER] challenging both the orders dated 13th January, 1987 and 20th November, 1990. [ENTITY] died during pendency of the writ petition and in his place, respondent No. 1 was substituted as his heir. In [CASE NUMBER], a joint affidavit was filed by the appellant as well as respondent No. 1 to the effect that appellant is ready to vacate the disputed accommodation within a period of one year from the date of filing the compromise. Respondent No. 1 agreed to allow time to vacate. On the basis of aforesaid affidavit filed by appellant and respondent No. 1 and other heirs of [ENTITY], this Court passed an order dated 16th August, 1996, dismissing the writ petition in view of the facts stated in the application filed on 15.5.1995. Appellant filed an application in the aforesaid writ petition for recall of the order dated 16th August, 1996, which was dismissed on 1st August, 2001. After the aforesaid order dated 1st August, 2001, respondent No. 1 filed an application before the Rent Control and Eviction Officer for execution of the order passed by this Court which according to him, amounted to an order of release of the building in favour of the landlord. The Rent Control and Eviction Officer recommended for issuance of Form-C, Form-C was issued but thereafter Form-D was not issued. Respondent No. 1 filed [CASE NUMBER] which was disposed of on 7th March, 2002, directing the District Magistrate to pass appropriate order in accordance with law on the recommendation of the Rent Control and Eviction Officer dated 22nd December, 2001. The District Magistrate passed an order dated 21st May, 2002, refusing to issue Form-D. The order dated 21st May, 2002 was challenged by respondent No. 1 by filing [CASE NUMBER]. The aforesaid writ petition has been allowed by learned single Judge vide his judgment dated 23rd October, 2002, against which present special appeal has been filed. At the time of passing of Judgment dated 23rd October, 2002, the appellant, who was present in the Court, offered to vacate the building provided he is granted reasonable time. Learned single Judge while passing the judgment dated 23rd October, 2002, granted three months time to the appellant to vacate the building subject to condition that appellant submits an undertaking in writing before the Rent Control and Eviction Officer, Allahabad, within three days. Counsel for the respondents has stated that in pursuance of the order of this Court dated 23rd October, 2002, the appellant has submitted a written undertaking before the District Magistrate, Allahabad, on 25th October, 2002 which fact has not been denied by counsel for the appellant.
4. The counsel for the respondents has raised a preliminary objection by submitting that appellant having undertaken in [CASE NUMBER] to vacate the premises within three months and having also filed a written undertaking before the District Magistrate, Allahabad, on 25th October, 2002, is not entitled to appeal against the said judgment of learned single Judge. The learned counsel for the respondents contended that the appellant having given undertaking before learned single Judge to vacate the premises, he is not entitled to file this appeal and this appeal is not liable to be entertained on this ground alone.
5. Sri [ENTITY], senior advocate, appearing for the appellant, refuting the above submissions, submitted that special appeal is fully maintainable and undertaking given by the appellant was in pursuance of the direction of this Court dated 23rd October, 2002 and the said undertaking cannot preclude the appellant from preferring this appeal. He placed reliance on Apex Court judgment in [PRECEDENT].
6. Sri [ENTITY], while making his submission on merits of the appeal, raised following contentions :
(i) In earlier [CASE NUMBER], no undertaking on behalf of the appellant can be read in the affidavit filed in the Court. He contended that the statement in paragraph 10 of the affidavit as extracted by learned single Judge in his Judgment, was subject to extension of certain facilities by the landlord and the landlord having not extended the facilities, the appellant immediately moved an application for recall of the said order, hence there was no undertaking on his behalf to vacate the premises and learned single Judge committed error in reading the affidavit of the appellant as undertaking.
(ii) The District Magistrate has rightly refused to issue Form-D for eviction of the appellant since there was no order of release in favour of respondent No. 1.
7. We have heard counsel for both the parties and perused the record. Before proceeding with the merit of the appeal, it is necessary to consider the preliminary objection raised by counsel for respondent No. 1 regarding entertainability of the appeal against the judgment of learned single Judge in which undertaking was given by the appellant to vacate the premises within three months. Although Sri [ENTITY], counsel for appellant submitted that undertaking which has been filed by the appellant before the District Magistrate on 25th October, 2002, is not an undertaking by the appellant on his own volition but is an undertaking under the direction of this Court and it cannot be treated to be an undertaking, but the fact remains that it was the appellant, who offered to vacate the premises provided he is granted reasonable time to vacate the building, in view of the aforesaid facts, we are proceeding on the premise that appellant gave an undertaking to vacate the premises within three months in pursuance of, the Judgment dated 23rd October, 2002.
8. The word "undertaking" has been defined in [ENTITY], the Law Lexicon (Second Edition) in following words :
"Undertaking is a promise, engagement or stipulation. The term is frequently used in the special sense of a promise given in the court of legal proceedings, by a party or his counsel, generally as a condition of obtaining some concession from the Court on opposite party."
9. The Apex Court in [PRECEDENT], considered as to what amounted to undertaking. In paragraph 7 of the judgment, the Apex Court laid down that a person appearing before the Court can give an undertaking in two ways. Relevant extract of paragraph 7 of the aforesaid judgment is extracted below :
"7. Coming to the first point, the contention of Mr. [ENTITY] was that there was no undertaking given by the appellant to the Court at all. Our attention has not been drawn by counsel for the respondent to any application or affidavit filed by the appellant which contains an undertaking given by the appellant to hand over possession to the receiver appointed by the High Court by virtue of the impugned order. It is manifest that any person appearing before the Court can give an undertaking in two ways : (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the Court in its order.
10. The question to be considered is as to whether a party, who flies an undertaking before the Court is precluded to challenge the judgment by way of appeal. This question arose in an appeal filed under [SECTION] of the [ACT] before the Apex Court from judgment of High Court in which tenant gave undertaking to vacate within specified time. Two Judge Bench of the Apex Court in [PRECEDENT], vide order dated 7th April, 1995, made a reference to a larger Bench in view of earlier two decisions that such appeal cannot be filed by tenant, who has given undertaking to vacate. In pursuance of the aforesaid reference, three-Judge Bench of the Apex Court decided the question in [ENTITY] v. Maruti Balaram Haibatti, 1998 (6) SCC 507. The Apex Court laid down in paragraphs 11 and 12 of the judgment that merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and operative. Paragraphs 11 and 12 of the judgment are quoted as below :
"11. A party to a lis can be asked to give an undertaking to the Court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking no Court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reserved or modified by the superior court or even the same Court on a review, the undertaking given by the party will automatically cease to operate. Merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt, he is bound to comply with his undertaking so long as the order remains alive and operative. However, it is open to such superior court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the party concerned has given undertaking in the lower court to abide by the decree or order within the time fixed by that Court.
12. We are, therefore, in agreement with the view of [ENTITY] and [ENTITY], JJ., that the appeal filed under [SECTION] of the [ACT] by special leave cannot be dismissed as not maintainable on the mere ground that the appellant has given an undertaking to the High Court on being so directed, in order to keep the High Court's order in abeyance for some time."
11. The Judgment in [PRECEDENT]'s case (supra) relied by the counsel for the appellant do support the contention raised by the appellant that he is not precluded to file the present appeal merely on the ground that he has given undertaking before learned single Judge. In the aforesaid judgment, the Apex Court following the three-Judge Judgment in [ENTITY]'s case (supra) has laid down that tenant has right to approach higher Court despite the undertaking given by him to vacate the premises. Paragraph 5 of the Apex Court judgment in [PRECEDENT]'s case (supra) is extracted below :
"5. The question was examined by this Court in a subsequent decision in [ENTITY] v. Maruti Balaram Haibatti in which it was laid down by a Bench of three Judges of this Court that even if the tenant gives an undertaking in the High Court to vacate the premises, his right to approach this Court under [SECTION] of the [ACT] is not affected. The tenant would still have a right to approach the higher court and even seek interim relief of stay of eviction despite the undertaking given by him to vacate the premises. This decision, decisively and clearly, has the effect of overruling the earlier decision in [ENTITY] case as also two other decisions in [PRECEDENT] and in [PRECEDENT]. The preliminary objection is accordingly overruled."
In the aforesaid [PRECEDENT]'s case (supra), Hon'ble [ENTITY], J., while agreeing with the judgment of Hon'ble [ENTITY], J., emphasised that in case tenant has given undertaking in the High Court, the question before the appellate court would be that whether in facts of case, discretion be exercised by the appellate court to grant leave to appeal. It was laid down in paragraph 23 of the aforesaid judgment which is extracted below :
"23. There is no gainsaying that jurisdiction of this Court under [SECTION] of the [ACT] cannot be impinged upon. But then the Court has absolute discretion in the matter to grant leave to appeal to it under this Article. The judgment in [ENTITY] case in my view, cannot be read as laying down a universal rule that this Court in a petition under [SECTION] cannot, while exercising its discretion, examine the circumstances under which undertaking was given as to whether the petitioner has not misled the Court or duped the other party. This Court cannot close its eyes to a solemn undertaking given by a party to the Court. Two things come to mind. Take the case where order of eviction has been passed against the tenant. On the request of the tenant the Court grants him time to approach the higher court and meanwhile stays the operation of the judgment on undertaking given by the tenant. In the other case the tenant requests the Court to grant him time to vacate the premises, which could be for a longer period than the period prescribed for filing the appeal, the Court grants time on the tenant giving the usual undertaking. In the latter case it would be a moot question if the Court will still exercise its discretion in granting leave to appeal under [SECTION] of the [ACT]."
12. From the aforesaid discussions, it is clear that preliminary objection raised by counsel for the respondents has no substance and this Court cannot refuse to entertain the appeal of the appellant on the ground that appellant has given undertaking before the learned single Judge to vacate the premises.
13. Now the submissions raised by counsel for the appellant on merits of the appeal need to be examined. From the facts which have come on the record, it is clear that in earlier [CASE NUMBER] filed by father of respondent No. 1, a joint affidavit was filed by respondent No. 1 and other heirs of late [ENTITY] and the appellant clearly stipulating that appellant is ready to vacate the accommodation within a period of one year from the date of final disposal of the writ petition. The affidavit was filed in the aforesaid writ petition by appellant in which relevant statement was made in paragraph 10 of the affidavit which has been extracted by learned single Judge in his judgment. On the basis of the representation made by the appellant, learned single Judge did not proceed to decide the writ petition on merits and dismissed the writ petition. While dismissing the writ petition, learned single Judge clearly noted in the order that writ petition is dismissed in view of the fact stated in the application filed on 15.5.1995. Respondent No. 3 (appellant in the present appeal) also filed an application for recall of the said order dated 16th August, 1996, which application was rejected by the Court on 1st August, 2001. While rejecting the application of respondent No. 3, this Court noted the fact that order dated 16th August, 1996, was passed on the basis of facts stated in the application dated 15th May, 1995, which was supported by an affidavit of both the parties. Thus, [CASE NUMBER], was decided on the basis of averments made in the affidavit of the parties and the application dated 15.5.1995. As noted above, the Apex Court has laid down in [PRECEDENT]'s case (supra) the manner in which undertaking is to be given in a Court. The appellant unequivocally has stated in the affidavit, in paragraph 10, that he will vacate the premises within one year from disposal of the writ petition. The said affidavit filed by the appellant clearly contained undertaking on his behalf. It is to be noted that the order dated 16th August, 1996, has become final as after rejection of the application of respondent No. 3 (appellant in the present appeal), the matter was not further pursued by the appellant. The Apex Court in [ENTITY]'s case (supra) has also laid down that a party giving undertaking is bound to comply with his undertaking so long as the order remains alive and operative. The appellant represented to the Court, which was hearing [CASE NUMBER], that he will vacate the premises within one year, hence the Court did not proceed with the writ petition further and the landlord also did not pursue the writ petition on the undertaking by the tenant. The Apex Court in [PRECEDENT], while considering the question of breach of undertaking, has stated in paragraph 5 as under :
"5. Before parting with this case, we may refer to Halsbury's Laws of England. Fourth Edn., Vol. 9 page 42 (paragraph 71) where, after citing [PRECEDENT] for the proposition that, when a 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 of 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 is misconduct amounting to contempt."
14. Judgment of learned single Judge dated 23rd October, 2002, is not based merely on the undertaking which was offered by the appellant at the time of hearing to the Court but judgment is based on the affidavit filed by appellant in [CASE NUMBER] in which the appellant had undertaken to vacate the premises within one year from disposal of the writ petition. Learned single Judge while allowing the writ petition has held that the appellant has given undertaking in [CASE NUMBER].
15. The submission of Sri [ENTITY] that in paragraph 10 of the affidavit, as mentioned above, no undertaking on behalf of the appellant can be read since the said undertaking was on the condition that landlord will extend certain facilities has no merit. Admittedly, respondent No. 3 (appellant in the present appeal) moved an application to recall the order dated 16th August, 1996, making all such plea which is sought to be raised in support of the above submission and the said application having been rejected by this Court on 1st August, 2001, the said submission can neither be canvassed any further nor can be accepted by this Court. From paragraph 10 of the affidavit, as extracted by learned single Judge in his judgment, it is clear that there was unambiguous and clear undertaking by the appellant to vacate the premises and the above submission cannot be accepted.
16. The second submission of Sri [ENTITY] to the effect that District Magistrate did not commit any error in refusing to issue Form-D has to be considered. As noted above. [CASE NUMBER], was dismissed in view of the application dated 15.5.1995. As observed above, in the aforesaid writ petition, there was clear undertaking by appellant to vacate. Now the question is as to whether learned single Judge can enforce the undertaking given by appellant in [CASE NUMBER], while exercising jurisdiction under [SECTION] of the [ACT]. The jurisdiction under [SECTION] of the [ACT] is wide enough to enable the High Court to do complete justice. While considering the extent of jurisdiction of the High Court under [SECTION] of the [ACT], the Apex Court in [PRECEDENT], laid down in paragraph 102, relevant portion of which is extracted as under :
"102. without entering into any comparative study of jurisdiction of High Court of England and the High Courts in our country the one basic difference that exists today is that the English Courts derive their creation, constitution and Jurisdiction from [ACT] or [ACT] but the High Courts in our country are established under the [ACT]. Under it [SECTION] preserved the jurisdiction, which existed on the date the [ACT] came into force and [SECTION] enlarged it by making it not only a custodian of fundamental rights of a citizen but as repository of power to reach its arms to do justice The High Courts in India being Courts of unlimited jurisdiction, repository of all judicial power under the [ACT] except what is excluded are competent to issue directions for arrest of foreign ship in exercise of statutory jurisdiction or even otherwise to effectuate the exercise of Jurisdiction
17. The Delhi High Court in [PRECEDENT], laid down in paragraph 27 that the High Court has jurisdiction to enforce an undertaking given before it. Paragraph 27 of the said Judgment is extracted below :
"27. Counsel for the landlord submits that warrant of possession be also issued as the undertaking was given to this Court and this Court ought to enforce it. The Court is not powerless to deliver possession to the landlords. The Court has the power to enforce an undertaking. It can be enforced by committal. It can be enforced by execution. I therefore, accept this prayer and order that a warrant of possession be issued in respect of premises. No. 7687 Ward No. XVI, Gali Takhat Wali, Qasabpura, Delhi Police aid be given to the landlords for obtaining possession of the premises as there has been resistance to the delivery of possession in the past."
18. The Apex Court in [PRECEDENT], has laid down that in case of breach of undertaking given by a party, the High Court was justified in giving appropriate direction to close the breach in addition to punishing the party for contempt of court. The Apex Court in paragraph 4 of the aforesaid judgment laid down as under :
"4. On merits, the learned counsel submitted that the undertaking given was not in respect of the property concerned and that in any case the learned single Judge was not justified in giving certain directions in addition to punishing the petitioners for contempt of court. We find no substance in the submissions made by the learned counsel. There was a clear breach of the undertaking given by the petitioners and we are of the opinion that the single Judge was quite right in giving appropriate directions to close the breach. The special leave petition is, therefore, dismissed."
19. From the aforesaid, it is clear that High Court, while exercising jurisdiction under [SECTION] of the [ACT], can issue appropriate directions for enforcing an undertaking given by a party before it and learned single Judge while allowing the writ petition vide its judgment dated 23rd October, 2002, has not committed any error in exercise of jurisdiction under [SECTION] of the [ACT]. We do not find any error in the judgment of learned single Judge allowing the writ petition. There is one more reason due to which tenant is not entitled for any indulgence in this appeal, i.e., according to undertaking as given in the affidavit, the tenant was liable to vacate the accommodation within one year from the date of disposal of the writ petition, i.e. within one year from 16th August, 1996, i.e., by 15th August, 1997. Even after 15th August, 1997 more than five years have elapsed and the landlord has not been able to get possession. This is an additional reason for not exercising any discretion in favour of tenant in writ jurisdiction.
20. Learned single Judge has rightly, in the judgment, stated that District Magistrate should have accepted the recommendation of Rent Control and Eviction Officer for issuing Forms-C and D. Learned single Judge has rightly observed that the District Magistrate in refusing to issue Forms-C and D committed error. Non-issuance of Form-D by District Magistrate vide his order dated 21st May, 2002, has become inconsequential in view of the directions issued by the learned single Judge in its impugned judgment. Learned single Judge has rightly issued a direction that in case the appellant fails to vacate the building in question or undertaking is not given within the time, the Rent Control and Eviction Officer/District Magistrate shall evict the tenant in accordance with law. We do not find any error in the judgment of learned single Judge and the submissions raised by counsel for the appellant are without any substance.
21. This special appeal lacks merit and is dismissed without any order as to cost.