1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 75 OF 2009 Ashok Bhairu Mohite & Ors. .. Petitioners Vs. Chandrakant Shankarrao Machale .. Respondent Mr. Sanjay Jain with Ms. Kavita Brid i/b Mr. Nivit Srivastava for the Petitioners. Mr. N. V. Bandiwadekar for the Respondent. CORAM : MRS. R. S. DALVI, J. DATE : 10th February, 2010. P.C. 1. This contempt petition has arisen from the order dated 28th November, 2008 of this Court passed in Second Appeal No. 722 of 2000 in the lis between the parties. The respondent’s Second Appeal was dismissed. The respondent was to hand over possession that was with him pending the dispute. The respondent applied for stay of that order. The Court gave the respondent four months time to vacate the premises on furnishing the usual undertaking within the period of four weeks from that 2 order. The Court clarified that the grant of the time and the filing of the undertaking would not curtail the respondent’s right to file a SLP in the Supreme Court. The Court, however, directed that if the respondent failed to file the usual undertaking within four weeks granted by the Court, the petitioner herein was at liberty to execute the decree. 2. The respondent gave the undertaking within two weeks of that order. However, the respondent did not vacate the premises as per the undertaking. The respondent should have vacated as per that undertaking by 28.03.2007. Instead the respondent availed of his right to file a SLP before the Supreme Court which was expressly granted to him. 3. The Supreme Court initially issued notice. Thereafter it gave direction to list the matter before the Court. It heard the parties on 01.02.2008 and reserved the order. Its order came to be passed dismissing the SLP on 30.10.2008. After the respondent had availed of his right to sue in the Apex Court and failed, the petitioner herein 3 demanded vacant possession as per the undertaking of the respondent on 24.10.2008. 4. The contempt petition has been filed on 10th December, 2008. It is within 12 months of the ultimate order of the Supreme Court dated 30.03.2008 and outside the limitation period of 12 months of the order of this Court dated 28.11.2006 which is stated to have been breached. 5. It is contended by the respondent that the petition is barred by limitation. Upon an arithmetical calculation of the aforesaid chronology it would, at first glance, be seen to be barred. However, it is contended by the petitioner that since the SLP was filed by the respondent and the notice was issued upon the petitioner in that behalf before the four month period expired on 28.03.2007, the petitioner stayed his hands and did not allege contempt of this order which the respondent had a right to challenge and have tested. What would have to be seen is whether by doing that the petitioner lost the period of limitation that was availed to him under the statute. 4 6. The order of this Court was to give the undertaking. The undertaking came to be given on 08.12.2006. The undertaking stated that the respondent was in actual use, occupation and possession of the suit premises and that he undertook to vacate and hand over peaceful possession of the same to the petitioner herein as per the order of this Court including the Hon’ble Supreme Court. No order was until then passed by the Supreme Court. Nevertheless the undertaking was that he would hand over as per that order. It therefore shows either that an application was already made on which the order was expected or that even if no application was made, it was intended to be made as per the express allowance in this Court’s order dated 28.11.2006 and as per the respondent’s legal right. The respondent had therefore not undertaken to hand over possession only as per the order of this Court. If the petitioner had insisted upon the decision on or before 28.03.2007 as per the undertaking of the respondent, the respondent would have resisted handing over of the possession because he had undertaken to hand over as per 5 the order of this Court including the Hon’ble Supreme Court. 7. It may be at once stated that the undertaking which was given by the respondent was not the “usual undertaking”. He was directed to give the usual undertaking given to this Court. Such undertaking is not that a party would hand over possession as per the order of this Court already passed which would include an order of the Supreme Court to be passed later. This undertaking itself would imply that until the order of the Supreme Court is passed, the undertaking would not be effectuated. It would therefore in terms be an undertaking against the order of this Court. It would therefore seek to avail of the four months period to vacate the premises and yet confer a stay of that order by the party giving the undertaking himself. It may be mentioned that such an undertaking is not unconditional and by its very term, contemptuous. 8. Nevertheless the undertaking was filed. The petitioner has accepted the contents of the undertaking. 6 The petitioner held his hands. He waited until the SLP of the respondent came to be dismissed. Even thereafter, the respondent did not vacate the premises an did not comply with his undertaking to hand over possession of the suit premises to the respondent as specifically undertaken as per the order of this Court and which by then included the order of the Supreme Court. Consequently, the petitioner demanded possession as per the undertaking, and failing the compliance of the demand, filed the contempt petition. 9. My attention has been drawn to the judgment of this Court in the case of Everest Enterprises Vs. N. K. Constructions Pvt. Ltd. in Contempt Petition No. 77 of 2000 in which upon perceived delay Section 29(2) of the Limitation Act was applied. Section 29 (2) runs thus : Section 29. Savings. ­ (1) (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of 7 determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. Consequently 4 to 24 of the Limitation Act would apply in considering the period of limitation under the Contempt of Courts Act since it is not specifically excluded by the Contempt of Courts Act. This includes Section 5 of the Limitation Act which allows the Court to grant an extension of the prescribed period of limitation upon being satisfied that there was sufficient cause for not preferring that application within the prescribed period of limitation. In this case the petitioner has shown not only the conduct of the respondent but deference to the highest Court of the country which the respondent had the legal right to approach for the redressal of his grievance and where this Court had expressly allowed the respondent to go. Consequently though contempt petition is filed outside the period on 12 months from the date of the order or the date on which the order should have been executed as per the 8 undertaking of the respondent, the extended period must be allowed to hear the petition on merits. 10. The respondent has been issued notice of this Court upon a prima facie case of contempt having been seen. That notice has been shown by the Advocate of the respondent. The notice expressly states that the respondent has been notified that the preliminary hearing of the contempt petition will take place on 31.03.2009 when he was called upon to appear and to remain present, and on the subsequent dates until the proceeding is finally disposed of by the Court. The respondent has appeared the pursuant to notice. The respondent has filed his affidavit­ in­reply as well as sur­rejoinder. The petition has to be heard and finally disposed of. 11. The respondent contends that he is not in possession of the premises which the petitioner has demanded. His Advocate drew my attention to the description of the premises at three places. He contended that the suit premises which is described in the deed of 9 mortgage, for the redemption of which the suit initially came to be filed and which has been ultimately decreed in appeal is shown to be the premises bearing House No. 1440A, under City Survey No. 1943 with its boundaries on the east, west, north and south sides of the premises shown therein. He showed me para 1 of the plaint in which the suit property is described as House No. 1440A on City Survey No. 1964 having area 428.10 sq. meters and which shows the boundaries to its west having open space of 36 x 36 sq. meters. He also showed me that in the decree which came to be passed the property described is as Municipal House No.1440A under City Survey No. 1064 admeasuring 428.10 sq. meters. 12. It is seen that the description of the property being the municipal house number is identical in para 1 of the plaint which is the description of the suit property and para 1 of the decree which shows the property for which the suit has been decreed except for the city survey number. The only difference in the city survey number is that it is shown to be 1964 in the plaint and 1064 in the decree. It 10 can be clearly seen that it is handwritten error. The plaint is typewritten. The decree is handwritten. The number is written in Marathi language. The only difference in the number 9 and 0 is a curve which is absent in the decree which has been drawn upon the suit being decreed. 13. The contention of the Advocate of the petitioner is that the respondent is not in possession of any property on City Survey No. 1064 for which the decree is passed. This would therefore called for arithmetical correction or amendment of the decree. This would not allow the judgment­debtor not to honour the decree for the city survey number as corrected. This amendment would be required to be made under Section 152 of the Civil Procedure Code which runs thus : Section 152. Amendment of judgments, decree or orders. ­ Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application any of the parties. 11 The Court may suo motu correct the error. Since it has not been corrected yet, this Court would be enjoined to correct it or to have it corrected. 14. The city survey number mentioned in the mortgage deed would be immaterial in view of the fact that the property mortgaged showing its boundaries has been accepted by the parties in the protracted litigation they have had. 15. It is seen that the respondent has been directed to give the usual undertaking to be granted the 4 month period of respite from execution upon the 2nd Appeal being dismissed. The undertaking runs thus : 1. I say that as per the order dated 28.11.2006 passed by this Hon’ble Court I am furnishing the usual undertaking. 2. I say that I am in actual use, occupation and possession of the suit premises and I undertake to vacate and handover peaceful possession of the same to the Respondents herein as per the orders of the Hon’ble Court including the Hon’ble Supreme Court. 16. The respondent knows what is the suit premises. The respondent undertook to vacate and hand over that suit 12 premises. The respondent must therefore hand over such premises as is in his actual use, occupation and possession. It does not matter that the decree showed one incorrect figure in an otherwise sufficiently described suit property which is accepted by the respondent as being in his actual use, occupation and possession. 17. Upon hearing the respondent absolutely no merit in his defence to the contemptuous action is seen. Consequently the contempt of the undertaking given by the respondent is seen. Unless the respondent purges the contempt by vacating and handing over the suit premises described in para 1 of the plaint forthwith, the respondent shall be committed to civil prison for a term extending one month. The respondent shall also pay fine of Rs.2,000/­. Contempt Petition is disposed of accordingly. The arithmetical error in the City Survey No. shown in the decree shall be corrected to read “City Survey No.1964”. This order is stayed for four weeks. (R. S. DALVI, J.) 13