1 WP.8283.2008.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 8283 OF 2008 Sanchita Amitabh Dasgupta ...Petitioner Vs. Amitabh Prashant Dasgupta & Anr. ...Respondents Ms. Neela Gokhale a/w. Mr. Hitesh Vyas i/b. Mr. Ajit Kulkarni for the Petitioner Mr. S.A. Sawant a/w. Ms. Smita Mane, Ms. Seema Dhavale for the Respondents CORAM : SMT. ROSHAN DALVI, J. DATED : 3RD MARCH, 2011 ORAL ORDER: 1. Rule. Made returnable forthwith. 2. The Petitioner wife has challenged the order of the learned Family Court No.1 Pune vacating an injunction granted to her against dispossession in the premises in which she lived as a licensee. The Petitioner and the Respondent No.1 married on 21 st April 2003. The Petitioner wife moved from Lucknow to Pune after her marriage. The husband and the wife resided in a flat owned by and belonging to the mother-in-law of the wife, the mother of the husband as licensee. A license agreement was executed by them as co-licensees under which they were required to pay Rs.5000/- per month to the licensor. 2 WP.8283.2008.odt The mother-in-law issued a notice for termination of license. The wife filed a petition for divorce and obtained an injunction protecting her possession. Thereafter the mother-in-law got herself on record of the Petition as a necessary party in view of the fact that her premises was taken to be shared residence of the parties in respect of which the wife obtained an order of injunction. Though the order of injunction was granted essentially against the husband, it impliedly included his mother as his relatives, attorneys and friends through him were restrained from dispossessing the wife. 3. Upon the application of the mother-in-law the impugned order came to be passed vacating the order of injunction. 4. The wife filed this Writ Petition challenging the order of vacating the order of injunction. She was directed to pay the license fees as a condition of granting her interim relief. 5. She challenged that interim order by way of an SLP. Her SLP was dismissed on 19 th July 2010. Consequently, the order vacating the order of injunction was impliedly revived and was sought to be enforced. 6. When that was sought to be enforced the wife filed an undertaking in the Family Court. The undertaking was to vacate the suit premises after one month of the date of the 3 WP.8283.2008.odt undertaking. A written undertaking has been given by the wife on 4 th October 2010. She was, therefore, required to vacate the premises licensed by her from her mother-in-law by 3 rd November 2010. This undertaking was given to obtain a respite in the application seeking to enforce the order of vacating the order of injunction. 7. This writ petition having been filed prior to the undertaking having been given, she sought to pursue the writ petition after depositing the amount of license fees ordered to be deposited. She took out another application for clarification of the time for deposit. Nevertheless the deposit has been made. The writ petition has to be considered keeping in mind her undertaking given pending the writ petition when the order of interim stay, which was conditionally passed in the writ petition, was initially challenged and later upheld. 8. It is contended on her behalf that her application for injunction was made under Section 7 Explanation (c) to the Family Court Act, 1984. The licensed property is sought to be contended to be “the property of the parties” though it is admittedly the property owned by her mother-in-law and not by either her or her husband who are the parties to a marriage. Though it may be seen that the very order of injunction against dispossession obtained by her would not fall within the ambit or Section 7 explanation (c) as it was not a property of the parties to the 4 WP.8283.2008.odt marriage, it is contended on her behalf that it was an order of injunction arising out of the marital relationship. Be that as it may, the order of injunction obtained by her was vacated by the Family Court. She gave an undertaking to abide by the order of vacating the order of injunction, upon she being given one month’s time for that purpose. 9. It is now contended that she gave the undertaking under constraint. Undertakings are given by parties who are invariably under constraints. Undertakings are given when all other doors appear to be closed. Undertakings are given when a party agrees and understands that the order which is passed is required to be obeyed. In this case the order of vacation of the order of injunction was challenged in the writ petition. The conditional interim order was not complied, but challenged further. That challenge was lost. Thereafter the undertaking was given. The writ petition itself would not even survive upon such undertaking; it would become infructuous. If the undertaking is honoured, as it should have been, the writ petition would have to be withdrawn. The undertaking is not honoured; the writ petition is sought to be agitated. The agitation is sought to be made out on the ground that the mother-in-law was not a necessary party and could not have obtained an order in the Petition for divorce filed by her where she was made a party Respondent. The order of making her a party Respondent has not been successfully challenged. She, 5 WP.8283.2008.odt therefore, remains the party Respondent. She is entitled to be heard. She is entitled to make application in the Petition. She has made one such application. That application is for vacating the order of injunction granted in the Petition. Order of vacating the injunction has come to be final upon the undertaking given by the wife to vacate the premises after one month. The consideration for giving the undertaking is the time that the wife got to make arrangements for vacating the premises. In fact the undertaking reads into it the requirement of making such arrangement. The undertaking runs thus: “I state that as per the order of this Hon’ble Court I will vacate the suit premises. I state that I don’t have any residence to stay in Pune except the suit premises. I state that I will be on road. I state that in this circumstances I request that the time limit to vacate the suit premises may kindly extended further one months to enable me to search for a suitable accommodation for myself. I undertake that I will vacate the premises in one months time.” 10.The wife submits to the jurisdiction of the Court. The wife submits to the order passed by the Court to vacate the suit premises. The wife states that she has no other residence and would be on the road and because of that and under those circumstances she requests the Court to give her time limit to vacate. The extension by further one month to vacate is to 6 WP.8283.2008.odt search for a suitable accommodation for herself. It is for the wife to search for a suitable accommodation and to end her constraint. Instead of that, she has sought to agitate the writ petition, which has become infructuous upon the undertaking being given. 11.It is argued on her behalf that the mother-in-law, licensor would be required to make an application before the competent authority under Section 24 of the Maharashtra Rent Control Act 1999 which alone has jurisdiction under Section 47 of the said Act she being a landlady under Section 41(c) under said Act. That argument would have been attractive had the undertaking not being given pending the writ petition. Once an undertaking is given all other legal questions cannot be determined on merits. The undertaking alone has to be honoured and respected. 12.The depth of the solemn aspect of an undertaking given to Court has been considered since the case of Bajranglal Gangadhar Khemka & Anr. Vs. Kapurchand Ltd. A.I.R (37) 1950 Bombay 336 in the Division Bench judgment of Justice Chagla C.J and Gajendragadkar, J., as they then were. The giving of the undertaking in all orders and decrees of Court has been considered to mean an undertaking given to the Court. It is observed that the expression “ a party undertakes” has borne the meaning that the undertaking has been to the Court, the 7 WP.8283.2008.odt failure of which would result in an action for contempt. That was a suit of specific performance of a contract. The Plaintiffs had an option to purchase the leased property which was sought to be sold to another without giving them the option. The parties compromised the action and executed Consent Terms. The Defendants were to execute a lease in favour of the Plaintiffs. The Defendants undertook to have the 3 rd party joined as a confirming party to the lease and failed to execute the lease as agreed upon. The Plaintiffs called upon the Defendants to join the 3 rd party as such and upon failure of the Defendants sued on contempt. The learned single Judge Bhagwati, J., as he then was, held that there was a willful default on the part of the Defendants, and ordered them to carry out the undertaking within one month from the date of the order, failing which a warrant for committal of the Defendants to prison would be issued. It was contended on behalf of the Defendants that the undertaking was a mere solemn promise given to the Plaintiffs and that there was no undertaking to the Court such as to constitute contempt. Negativing that contention it was held by the Division Bench that there was no reason why even in a Consent Decree a party may not give an undertaking to the Court. It was observed that when the Court passed a decree it puts its imprimatur upon those terms and makes the terms a rule of the Court. It was, therefore, held that there was nothing contrary to any 8 WP.8283.2008.odt provision of law whereby an undertaking cannot be given by a party to the Court in a Consent Decree, which undertaking can be enforced in proper committal proceedings. It was observed that when an undertaking is given by a party to the Court, it becomes an order of the court and a particular mode is prescribed for enforcement of that particular order. That mode is the proceedings for contempt for enforcement of the order. The fact of giving of an undertaking to Court can be seen by looking at the Consent Decree itself. The Court considered the scheme of the agreement containing the undertaking and confirmed the order of the learned single Judge in directing compliance of the undertaking and dismissed the Appeal upholding the order of committal in case of its failure. 13.Halsbury’s Laws of England – Fourth Edn. Vol. 9, page 44 (para 75) deals with the aspect of giving undertakings thus: “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.” This has been cited with approval in the case of Chhaganbhai Norsinbhai Vs. Soni Chandubhai Gordhanbhai (1976) 2 S.C.C. 951. 14.The case of Bajranglal (supra) has been followed with 9 WP.8283.2008.odt approval by the Supreme Court in the case of Bank of Baroda Vs. Sadruddin Hasan Daya & Anr. (2004) 1 SCC 360 holding that: “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.” 15.In such a case, therefore, the attempt to prosecute the Writ Petition, despite the undertaking, is itself an audacious attempt to ignore the solemnity and profundity of the act of giving the undertaking. 16.In view of the undertaking the writ petition has become infructuous. It is, therefore, dismissed and the rule is discharged. 17.In view of the above, application for further one months’ time to vacate is seen to be lacking in bona fides and is rejected. 18.The Civil Application No.172/2011 does not survive and is disposed off as such. (SMT. ROSHAN DALVI, J.)