1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO.57 OF 2008 IN SUIT NO.3193 OF 1996 Rajesh Y. Shenoy .. Petitioner Verrsus A.Krishnanand Rao .. Respondent Mr.V.R.Tripathi i/b. M/s.V.R.Tripathi and Associates for petitioner Mrs.K.P.Reshma Ravi i/b. K.P.Ravi for respondent. CORAM : S.C.DHARMADHIKARI, J. DATE : November 13, 2009. P.C.: 1] This is a contempt petition and the prayer of the petitioner – original plaintiff is that the respondent before this Court had agreed and undertaken to the Court to hand over possession of an immovable property/ flat by 30th April 2008. He has failed and neglected to do so willfully and deliberately. There is no reason why the respondent should have overstayed in the premises. In fact, the respondent has himself come before the Court and willingly undertaken to hand over possession of this flat. The respondent has suffered an adverse order all through out 2 and was aware of his duty in law. However, since the property/ flat, possession of which is with the respondent has not been handed over, the present contempt petition is filed with a view to bring to this Court’s notice the civil contempt. 2] An affidavit has been filed in reply to this contempt petition and what is stated therein is that the undertakings have been given after the warrant of possession was issued. There is some misconception inasmuch as the respondent states that until the disputes regarding the shares in the immovable property are settled, the plaintiff/ petitioner would allow him to occupy and use this premises. Not satisfied with this affidavit and when the Court indicated that it is inclined to proceed in accordance with law, that time was sought to place further affidavit on record. In para 9 of this further affidavit, which is affirmed on 17th August 2009, this is what is stated:- “9. I say that the respondent was pressed by necessity of shelter for his family and stability for his school going children and hence he was reluctant to give possession of the suit premises. However, it is not true that no attempt was 3 made to give possession of the same at all. The consent order dated 28th November 2007 gave the respondent time till 30th Aprril 2008 to give vacant possession of the suit premises to the petitioners. The petitioner and the respondent are blood relation and the said suit is actually a tussle between a brother, the respondent and a sister, the petitioner’s mother. The petitioner himself is Belgaum and has never been actually in need of possession of the said flat. This suit in question has been a camouflaged attempt by the sister to oust the brother, the respondent herein from the flat, which is actually their father’s. I say that a family meeting was held on 28.4.2008 wherein in the presence of a few family members a mutual understanding was struck upon wherein, in the interest of the respondent’s children’s future, it was decided that the respondent would be allowed to stay in the suit premises. The respondent handed over the keys to the petitioner’s father and the Constituted Attorney herein, Mr.P.Y.Shenoy and the same was returned to the respondent, which was humbly taken by the respondent. The meeting ended amicably with both parties coming to a mutual understanding. Such a meeting was 4 informed by the respondent to his Advocate only on enquiry from the latter on the 30th April 2008. The respondent’s advocate reprimanded him for not having informed him about such family meeting earlier. The respondent in return said that he did not wish to aggrieve the petitioner’s mother and father in anyway as the same would have derailed the entire talk process. It was all between the family members and the respondent did not want to involve legal representatives in it as it would have marred his chances of being in the suit premises. The respondent’s Advocate suggested that he be allowed to at least send a legal correspondence recording the meeting. But the respondent strictly forbade the Advocate from doing so as he feared that such correspondence would be misunderstood by the petitioner’s parents as a ploy against them. However, on insistence of the Advocate, the respondent personally wrote a note thanking the petitioner’s father and the same was personally posted by him. A copy of such letter is today not traceable but the respondent assures that he will attempt to retrieve a copy of such letter and furnish this Hon’ble Court on or before the date of Final Hearing of this 5 Contempt Petition. However, the U.C.P. Receipt proving service of such letter is available to prove service of such letter to the petitioner. Such a family meeting is also confirmed and the entire proceeding is described in detail by one of the relatives present therein during the meeting, Mr.Pandurang Shridhar Kini. An affidavit of Mr.Pandurang Shridhar Kini proving such meeting is annexed herewith. Therefore, this contempt petition completely baffles the respondent considering that the petitioner had himself allowed the respondent to continue living in the suit premises, that also in the presence of a number of family members. I say that this amply proves that non performance of the undertakings given by the respondent was far from being willful and deliberate breach of undertaking. In the event of the non performance of the final undertaking not being willful and deliberate the respondents have not committed contempt of this Hon’ble Court.” 3] The petitioner/ plaintiff has denied these assertions in the affidavit filed on 17th August 2009 by the respondent. Petitioner’s rejoinder is also 6 on record. After the contempt petition was argued for some time and it was brought to the notice of the respondent contemnor that he had undertaken to the Court that he would vacate and hand over peaceful and vacant possession of the premises to the petitioner and that his pleading of private arrangement is of no consequence. That pleas raised in the affidavit and more particularly in para 9 of the affidavit affirmed on 17th August 2009 can hardly answer the charge in contempt, that time was sought to take instructions. It was orally submitted yesterday that if a longer time is given the respondent would abide by his undertaking to the Court. Presently, the respondent is residing in the premises/ flat along with his wife and two children. The children are school/ college going. Their academic year would come to an end some time in March 2010. Therefore, purely as a matter of lenience and indulgence, if the respondent is granted time till the end of this academic year, he would take steps and move out of the premises. In addition to the unconditional apology tendered, it was submitted that this Court should take a lenient view of the matter and more particularly on account of hardships faced by the petitioner and his family. 4] It was indicated to the learned Counsel for respondent that oral 7 requests and undertakings or statements are of no use and the respondent must put in an undertaking in writing. 5] Accordingly, an undertaking of respondent dated 13th November 2009 is placed on record. The respondent is present in Court. He was present yesterday also. He makes a categorical statement that this is an undertaking not only on his behalf but also on behalf of his wife and the children. Although, the daughter is 19 years old, she has no independent right in the premises and is residing purely as a member of the family. Respondent has a 16 years old son also. Apart from these four persons, none else is residing in the flat/ premises. Even today when undertaking is given, the physical possession is with respondent and non else. Respondent has undertaken that he would hand over vacant and peaceful possession of the suit premises, more particularly described in the undertaking on 31st March 2010. He has undertaken not to seek any further extensions of time to surrender the possession. 6] A copy of this undertaking is handed over to petitioner’s Advocate today. Mr.Tripathi after taking instructions from the petitioner/ plaintiff makes a statement that the Court may pass appropriate orders considering 8 larger interest of justice. 7] The undertaking of the respondent dated 13th November 2009 is taken on record. Since he states that he is out of employment, the family is supported only on the income from the job of his wife and that he has school/ college going children, that a sympathetic and lenient view is taken. Presently, the Court is not taking any action either under the Contempt of Courts Act or otherwise. More particularly because the respondent has tendered unconditional apology and seeks time to vacate the premises as a last chance. It is purely on account of the hardships put forward and since the respondent genuinely and bonafide desires to vacate the premises after the protection comes to an end qua this academic year, the undertaking is accepted. However, acceptance of this undertaking and passing any order in furtherance thereof, shall not be construed as the petitioner waiving any rights vested in him in law. At the most, acceptance of this undertaking on account of the request of respondent is deferment or postponment of the necessary consequences in law. 8] In the light of the above, the undertaking of respondent is accepted. 9 It is directed that the respondent is permitted to use and occupy the suit premises till 31st March 2010. The occupation and usage by the petitioner and his family shall be on the condition that the respondent pays the monthly charges/ outgoings in respect of this flat to the petitioner as before. Further, if there are any arrears, they must also be cleared within four weeks from today. Any other and further sums that the petitioner may claim can be so claimed and pleas in that behalf can be raised in appropriate proceedings. All remedies of the petitioner in that behalf are kept open. 9] The respondent undertakes to hand over vacant and peaceful possession on or before 31st March 2010. He is occupying the premises himself along with his family members. This statement and undertaking recorded today shall bind each one of them. Respondent to hand over vacant and peaceful possession on or before 31st March 2010 as undertaken and in default, it is directed that the Court Receiver, High Court, Bombay shall be appointed receiver of the property/ premises in execution and he shall have power to take vacant and peaceful possession of the premises from the respondent and hand it over to the petitioner. Needless to state that it would be open for the Court Receiver to seek 10 such force, including by approaching nearest police station for implementing the order and direction of this Court and removing the respondent and his family members from the premises in case there is a default on the part of the respondent in vacating the premises. It is also clarified that in default, it would be open for the petitioner to seek such legal reliefs and pursue such remedies as are available in law. Undertaking is taken on record and marked “X” for identification. Petition disposed of. No costs. (S.C.DHARMADHIKARI, J)