THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY CONTEMPT CASE NO.542 OF 2010 Dated 30th July, 2010 Between: B.Uma Maheswara Rao …Petitioner And G.Govindam Naidu …Respondents Counsel for the petitioner : Sri P.Sri Raghu Ram Counsel for the respondents: None appeared The Court made the following ORDER: This Contempt Case is filed alleging violation of the undertaking given by the respondent in pursuance of order dated 20.11.2009 in S.A.No.1099 of 2009. The petitioner is the respondent in the abovementioned Second Appeal. The respondent herein filed the Second Appeal against judgment and decree dated 17.07.2009 in A.S.No.216 of 2006 on the file of the II-Additional District Judge, Visakhapatnam (for short “the appellate Court”), whereby he has dismissed the appeal confirming judgment and decree dated 11.07.2006 in O.S.No.987 of 1997 of the learned V-Additional Senior Civil Judge (Fast Track Court), Visakhapatnam (for short “the trial Court”). The respondent herein was the lessee of the premises owned by the petitioner. As he failed to vacate the premises after expiry of lease on 30.11.2007; the petitioner herein filed O.S. No.987 of 1997 in the trial Court. After contest, the said suit was decreed on 11.07.2006. The said decree was confirmed in A.S. No.216 of 2006 by the appellate Court. The respondent thereafter filed Second Appeal No.1099 of 2009. This Court, after hearing the parties, dismissed the Second Appeal confirming the judgment and decree of the Courts below. However, on a request made by the learned counsel for the respondent, for granting reasonable time for vacating the premises, this Court granted three months’ time for the respondent to vacate the premises subject to the condition of his filing an undertaking in the form of an affidavit before the trial Court within a period of two weeks from the date of the order and also on the respondent depositing arrears of rent, if any, within the said period. The respondent initially did not file the affidavit within the specified period. However, on 04.02.2010, he filed the affidavit before the trial Court, wherein while declaring that there are no arrears of rent payable by him, he has given a categorical undertaking that he will vacate and deliver vacant possession of the property to the petitioner within the time granted by this Court. As the said affidavit could not be filed within the time stipulated by this Court, the respondent has filed SAMP No.193 of 2010 in the Second Appeal seeking extension of time. It is averred in the affidavit filed in support of this Contempt Case that another learned Judge of this Court has allowed the said application by extending the time till 05.02.2010 for filing the said affidavit. The fact thus remains that the respondent has filed his affidavit within the time extended by this Court undertaking to vacate and deliver vacant possession of the suit property to the petitioner within the time allowed by this Court. In the present Contempt Case, the petitioner has alleged that the respondent has violated the undertaking given by him by not handing over vacant possession of the suit property to him. He maintained that this action is not only illegal but also in deliberate violation and wilful disobedience of the direction given by this Court and in breach of the undertaking given by the respondent, which constitutes contempt. On 15.04.2010, this Court admitted the contempt case and issued notice in Form-I. On 04.06.2010, when the case was posted, the Office report showed that the notice sent to the respondent was returned with an endorsement that no such addressee is available. Thereupon, the learned counsel for the petitioner has undertaken to cause service of notice on the respondent through substitute service by way of publication in a newspaper. Having considered the request of the learned counsel for the petitioner, this Court passed an order on 04.06.2010 directing the petitioner to deposit the required expenses for publication in a newspaper of vernacular language having circulation in Visakhapatnam District and that on such deposit the Registry was directed to cause publication of notice. Accordingly, the petitioner has deposited the expenses and the Registry has caused publication of the notice in Vaartha Telugu Daily of Visakhapatnam District on 20.07.2010. It has been specifically stated in the said notice that the Contempt Case filed by the petitioner herein against the respondent will come up before this Court on 23.07.2010 at 10.30 a.m and that the respondent shall enter appearance in the case. On 23.07.2010, the case was posted. There was no appearance for the respondent. The learned counsel for the petitioner has requested for an adjournment for arguing the case. Accordingly, the case has been posted to today. Even today at the hearing, there is no appearance for the respondent even though the name of the respondent was called out at the hearing. The facts alleged in this Contempt Case remained uncontroverted. The undertaking given by the respondent before the Court below has been filed by the petitioner along with Application No.693 of 2010 to receive the same as additional material paper. It is relevant to produce the said affidavit herein below. “Affidavit filed under Order 19 Rule 1 of CPC 1. Govindam Naidu, S/o Laxman Naidu, aged 45, business, residing at Visakhapatnam, do hereby solemnly affirm and state as follows. 2. I am the deponent herein and J Dr in the above EP and I am acquainted with the facts of the case. 3. I submit that there is no arrears of rent by the date of the order of the Hon’ble High Court of A.P in S.A.No.1099 of 2009. I hereby undertake to vacate and deliver vacant possession of the suit property to the D Hr within the time granted by the Hon’ble High Court of Andhra Pradesh.” From the contents of the affidavit extracted above, it is evident that the respondent has given an unequivocal undertaking that he will vacate and deliver vacant possession of the said property to the petitioner (decree holder) within the time granted by this Court. The fact, however, remains that the respondent has violated this undertaking having taken advantage of the indulgence shown by this Court permitting him to retain possession for three months after the dismissal of the Second Appeal. The law is well settled that the violation of undertaking given by a party constitutes civil contempt. In Balram Singh vs. Bhikam Chand Jain and others[1], the Supreme Court held that the party committing breach of undertaking constitutes gross contempt. While finding that one of the parties in the said case has not only given the undertaking but committed breach of the said undertaking, the Supreme Court observed- “It would be a travesty of justice if the Court were to allow such gross contempt of Court to go unpunished, without an adequate sentence and we find no mitigating circumstances whatever not to pass a sentence of imprisonment. We accordingly commit the contemnors for contempt of Court and sentence each of them to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1000 or in default, to undergo simple imprisonment for a further period of one month.” I n Bank of Baroda v s . Sadruddin Hasan Daya and another[2], the Supreme Court has passed a consent decree on 28.07.1999 on the basis of which a settlement was reached and a consent decree was passed by the Bombay High Court on 05.10.1999. On one of the parties committing breach of the consent decree, the other party has filed a Contempt Case before the Supreme Court for punishing the contemnor for violation of the consent decree. The counsel appearing for the contemnor has argued that if there is a breach of consent decree, the decree holder is entitled to execute the decree and that such breach does not constitute contempt. Repelling this contention, the Apex Court held as under- “12. The submission of Shri R.F.Nariman, learned counsel for the respondents, that this Court having passed a consent decree, the remedy of the petitioner lay in executing the same and there was no occasion for initiating contempt proceedings against the respondents has hardly any merit. The wilful breach of an undertaking given to a Court amounts to “civil contempt” within the meaning of Section 2(b) of the Contempt of Courts Act. The respondents having committed breach of the undertaking given to this Court in the consent terms filed on 28.07.1999, they are clearly liable for having committed contempt of Court. The fact that the petitioner can execute the decree can have no bearing on the contempt committed by the respondents. The law in England on the subject of breach of undertaking given to Court is same. In Halsbury’s Laws of England, Vol.9(1), para 482, it has been stated as under: “An undertaking given to the Court in pending proceedings by a person or corporation (or by a government department or Minister of the Crown acting in his official capacity) 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.” 13. An identical argument was considered and repelled in Bajranglal Gangadhar Khemka v. Kapurchand Ltd., (AIR 1950 Bom 336:52 Bom LR 363). Here a suit for specific performance of an agreement of sale was filed wherein parties entered into a compromise and the consent terms were reduced to writing and were signed by counsel for the parties. One of the terms was with regard to execution of a lease within a period of two months by the defendants in favour of the plaintiff in respect of the property in suit and the defendants further undertook to have Paradise Cinema Ltd to join as a confirming party to the lease. The defendants having failed to execute the lease as agreed, execution proceedings were taken out. The plaintiff called upon the defendants to get Paradise Cinema Ltd. to join as a confirming party to the lease and the defendants having failed to comply with that requisition, a motion was taken out for contempt of Court. The trial Judge (Justice N.H.Bhagwati) held that there was a wilful default on the part of the defendants and thereupon he ordered that the defendants should carry out their undertaking within one month from the date on which the order was passed, otherwise a warrant was to issue for the committal of the defendants to prison. In appeal against the said order Chagla, C.J. and Gajendragadkar, J., after a detailed consideration of the law on the subject, held as under: (AIR P.337, Para 4) “There is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be bound to record a compromise, still, when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the Court; and it would be open to the Court, before it did so, to accept an undertaking given by a party to the Court. Therefore, there is nothing contrary to any provision of the law whereby an undertaking cannot be given by a party to the Court in the consent decree, which undertaking can be enforced by proper committal proceedings.” 14. The respondents had filed consent terms in this Court but the same contained an undertaking that they would not alienate, encumber or charge the properties to anyone until the decree was satisfied. Acting upon this undertaking and the consent terms, this Court passed the decree whereunder the respondents (defendants) were given the facility of depositing the amount in eight quarterly instalments commencing from 01.11.1999 to 01.08.2001. This Court, therefore, put its imprimatur upon the consent terms and made it a decree of the Court. The violation or breach of the undertaking which became part of the decree of the Court certainly amounts to contempt of Court, irrespective of the fact that it is open to the decree-holder to execute the decree. Contempt is a matter between the Court and the alleged contemnor and is not affected in any manner by the rights or obligations of the parties to the litigation inter se.” On the sentence of the contemnor, the Supreme Court held as under- “16. Coming to the question of sentence, we are conscious of the fact that the power to punish for contempt must always be exercised consciously, wisely and with circumspection. At the same time, the Court should act without seriousness and severity where justice is jeopardized by a grossly contemptuous act of a party. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society [See Vinay Chandra Mishra, In re (1995) 2 SCC 584)]. The present petition was heard on 27.08.2003 when we enquired whether the respondents would be willing to deposit the amount, learned counsel for the respondents sought time and the case was adjourned to 23.09.2003 and then to 14.10.2003 and finally to 28.10.2003. However, even on the said date, learned counsel for the respondents reiterated the problems of the respondents in depositing the amount and so the matter was heard on merits. The position remains that though under the consent decree passed by this Court on 28.07.1999, the respondents had to deposit the first instalment on or before 01.11.1999 and the last instalment by 01.08.2001, but they have not deposited or paid even a single penny. In these circumstances, we are of the opinion that there is no occasion for showing any leniency in the matter of punishment.” Following the law declared by the Supreme Court as above, I have no hesitation to hold that the respondent is guilty of contempt as he deliberately violated the written undertaking given by him by way of an affidavit by not vacating and handing over vacant possession of the suit property to the petitioner. He has not only indulged in the said violation but also compounded his action by not appearing before this Court despite service of notice. Therefore, I do not find any mitigating circumstances to take a lenient view on the respondent. Accordingly, the respondent is convicted for contempt of Court and sentenced to one (1) month’s imprisonment. The respondent shall be forthwith taken into custody. If during the period of imprisonment, the respondent delivers vacant possession of the suit property to the petitioner, the balance sentence shall stand commuted and he shall be released. On the premises as above, the Contempt Case is disposed of. C.V.NAGARJUNA REDDY, J Dated 30th July, 2010 vrn On being mentioned Dated 2nd August, 2010 On certain doubts arsing after the order was dictated regarding the procedure to be followed, the case is posted “for being mentioned” today. I have heard Sri P.Sri Raghu Ram, learned counsel for the petitioner, who advanced submissions with reference to the procedure envisaged in the Rules framed by this Court under the provisions of the Contempt of Courts Act, 1971 and on hearing him, I am thoroughly satisfied that the order already passed does not require any modification except to the extent of fixing subsistence allowance in terms of Rule 32(1) of the Rules. Accordingly, the subsistence allowance is fixed at Rs.200/- (Rupees two hundred only) per day. The petitioner shall deposit the subsistence allowance calculated for a month with the Superintendent of the Jail concerned within two (2) days and on such deposit, the respondent shall be taken into custody. If the respondent is released before serving the full sentence on his complying with the conditions stipulated in order dated 30.07.2010, the balance subsistence allowance amount shall be returned to the petitioner. Order dated 30.07.2010 is accordingly modified. C.V.NAGARJUNA REDDY, J Dated 2nd August, 2010. vrn [1] (1985) 4 Supreme Court Cases 246 [2] (2004) 1 Supreme Court Cases 360