ivil Appeal No. 1778 of 1990.
From the Judgment and Order dated 5.7.1988 of the Bombay High Court in Contempt Petition No. 106 of 1987.
P. Chidambaram, Ms. Raian Karanjawala, Mrs. Manish Karanjawala and Mrs. Meenakshi Arora for the Appellant.
K.S. Cooper, K. Parasaran, Anil B. Divan, A.S. Bhasme, P.H. Parekh, Sunil Dogra, Gopal Subramaniam, Ms. Indu Malho tra for the Respondents.
383 The Judgment of the Court was delivered by KANIA, J.
Leave granted.
The appeal is taken up for final hearing.
Counsel heard.
The short facts necessary for the disposal of the appeal are as follows: The appellant is the owner of a Bungalow known as "Villa Hormazd" at 8 A, Carmichel Road, Bombay.
The suit premises, comprising two floors of the said bungalow, were leased to Mayer Mills Ltd. under a lease deed dated April 16, 1948 for a period of three years from November 1, 1947.
At that time, the bungalow belonged to the father of the appellant.
On the death of the father of the appellant in 1949, the appellant became the landlady of the said bungalow.
Respondent No. 1, B .R.
Cotton Mills.
Ltd., is the successor in interest of Mayer Mills Ltd. and at the relevant time was in possession of the suit premises as a tenant.
Respondent No. 2 is the Chairman of respondent No. 1 and the other respondents are some of the Directors of respondent No. 1.
The appellant filed a suit being R.A.E. No. 763/ 6563 of 1966 in the Small Causes Court at Bombay for eviction of respondent No. 1 from the suit premises and for possession on the ground of rea sonable and bona fide requirement.
During the pendency of this suit, another suit for eviction was also filed by the appellant against respondent No. 1 for eviction on the ground of default in the payment of rent for a period of more than six months.
The Trial Court by its judgment dated September 13, 1975 decreed the aforesaid eviction suit R.A.E. No. 763/6563 of 1966 (hereinafter referred to as "the said suit") but the other suit for eviction filed by the appellant was dismissed in view of the eviction decree passed in the said suit.
Respondents nos.
1 and 2 filed an appeal against the decree for eviction but the said appeal was dismissed.
In February, 1986, the husband of the appel lant died and after that the appellant is the landlady of the said bungalow.
On the other hand, the appeal of the appellant against the dismissal of her other suit, for eviction on the ground of default in payment of rent was allowed and that suit was also decreed against respondent No. 1.
The respondent then filed a writ petition in the High Court at Bombay challenging the decrees for eviction passed by the Court of Small Causes as aforestated.
On February 27, 1987, respondent No. 2 filed a suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the suit premises and was not bound by the decrees of eviction passed in respect of the suit premises against the tenant, namely, respondent No. 1.
The said Writ Petition 384 No. 1066 of 1987 filed by respondent No. 1 challenging the decrees for eviction passed against respondent No. 1 in the said suits and confirmed in appeal came up for hearing before a learned Single Judge of the Bombay High Court on March 5, 1983.
The learned Judge by his judgment and order of the same date, dismissed the said writ petition.
The relevant part of the order of the learned Judge reads as follows: "The petitioner requests for time of eight weeks to vacate the premises.
He is granted the said time subject to execut ing written undertaking that he shall not part with the possession of the suit premises or create third party inter ests in the suit premises in the meantime in any manner whatsoever. ' ' On March 11, 1987, the matter was brought up again before the learned Single Judge by learned counsel for the appellant for pointing out that respondent No. 1 had not filed the requisite undertaking as directed under the order dated 5.3.
It appears that at that stage it was point ed out to the Court by Mr. Dalvi, learned counsel for the appellant that respondent No. 2 had filed a declaratory suit in the Court of Small Causes as aforestated claiming to be the sub tenant of the suit premises.
The order of the learned Judge dated March 11, 1987 shows that the learned Judge stated that he did not wish to take any action at that time on the conduct of respondent No. 1 but, as a last chance, granted respondent No. 1 time upto March 17, 1987 for furnishing the undertaking as ordered failing which it would be deemed that the condition was not fulfilled.
Re spondent No. 3, as a Director of respondent No. 1, by his affidavit, affirmed on March 17, 1987, gave an undertaking merely stating that respondent No. 1 would not commit any act contrary to or in breach of the order dated March 5, 1987.
It was pointed out by the appellant that this under taking was not in compliance with the orders passed by the learned Single Judge.
After some correspondence, respondent No. 3, by his affidavit affirmed on March 25, 1987 filed an undertaking on behalf of respondent No. 1 inter alia stating that respondent No. 1 would not part with the possession of suit premises or create any third party interest in the suit premises in any manner whatsoever.
The undertaking did not state that respondent No. 1 had not, before the undertaking was given parted with the possession of the suit premises or created any third party interest therein.
When the matter came up on March 31, 1987 before the learned Single Judge who had given time to respondent no 1 to vacate as afore stated, it was pointed out by learned counsel for the appel lant that the undertaking was objected to as it did not state that 385 respondent No. 1 was in possession.
Thereupon Shri R.J. Joshi, learned counsel for respondent No. 1 Company, stated that the undertaking spoke for itself and when it stated that respondent "shall not part with possession" it meant that respondent No. 1 company was in possession.
In view of this, the learned Judge did not give any further clarifica tion.
Respondent No. 1 preferred a special leave petition to this court against the judgment of the learned Judge dis missing the said writ petition but the said special leave petition was dismissed.
Thereafter the suit filed by re spondent No. 2 in the Court of Small Causes for a declara tion that he was the lawful sub tenant of the suit premises was dismissed but he preferred an appeal against the said decision and in that appeal obtained an interim injunction restraining the appellant from interfering with his posses sion of the suit premises.
In view of this, the decree for eviction could not be executed.
Thereafter in June 1987, the appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court setting out the facts and praying that the respondents should be punished under the provisions of the .
It has been inter alia alleged in the contempt petition by the appellant that in spite of the said undertaking, respondent No. 2 had filed a suit, being suit no.2911 of 1987 in the City Civil Court at Bombay claiming a declaration that the decree for possession was a nullity and for an injunction restraining the appellant from executing the decree and obtained an ad interim injunction a few days after the summary dismissal of the special leave petitions filed by the respondents in this Court as afore stated.
The said suit was thereafter dismissed for non prosecution but, in the meantime, respondent No. 2 filed the suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the premises as aforestated.
It was submitted by the appellant in the contempt petition that the said undertaking given by respondent No. 1 clearly implied that on the date of the undertaking, respondent No. 1 was in possession of the suit premises and in order to defeat the decree for possession, respondent No. 1 had set up its Chairman, respondent No. 2, to file the aforesaid suit in the Court of Small Causes claiming sub tenancy.
It was further submitted by the appellant that although re spondent No. 1 continued to be in possession of the suit premises it had set up respondent No. 2 to file the suit on the ground that he was in possession of the suit premises as a sub tenant in his own right and continued to be in posses sion thereof.
The learned Judge before whom the said con tempt petition came up for hearing took the view that in the order of the learned Single Judge dated March 5, 1987, he was unable to read any direction to file an undertaking to give possession.
He took the view that the aforesaid under taking given on behalf of respondent No. 1, that it would not with possession or create any third party interest in the suit premises, did not imply that respondent No. 1 was in actual physical possession of the suit premises and that the fact that respondent No. 2 was claiming an independent title in himself as a sub tenant by virtue of a Resolution of respondent No. 1 was not sufficient to hold that respondent No. 1 or the other respondents were guilty of contempt.
He took the view that there was no undertaking by respondent No. 1 to deliver possession of the suit premises and on the basis of these conclusions, he rejected the contempt peti tion.
At the same time the learned Judge did observe that respondent No. 1 may have indulged in sharp practices but held that it was not guilty of contempt.
The present appeal is directed against this order.
It was submitted by Mr. Chidambaram, learned counsel for the appellant that respondent No. 1 and respondent No. 2 were guilty of contempt and the learned Single Judge was in error when he took the view that no contempt was established in the matter against the respondents.
It was submitted by learned counsel that on 5th March, 1987 when the writ peti tion preferred by respondent No. 1 was summarily rejected by Justice Puranik of the Bombay High Court, learned counsel for respondent No. 1, on instructions, made an application to the learned Judge to grant respondent No. 1 time for eight weeks to vacate the suit premises.
This time was granted subject to respondent No. 1 executing an undertaking that he would not part with the possession of the premises or create third party interests therein as set out earlier.
After delaying the matter for some time, respondent No. 3 filed on March 25, 1987, an affidavit, as a director of respondent No. 1 wherein he set out inter alia that respond ent No. 1 agreed to give an undertaking as set out earlier as respondent No. 1 was desirous of approaching the Supreme Court to challenge the order of the learned Judge dismissing the writ petition.
It was submitted by Mr. Chidambaram that this undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over the vacant and peaceful possession of the suit premises after eight weeks, if the special leave petitions preferred by respondent No. 1 were dismissed or no interim relief was obtained thereunder.
This undertaking was taken note of by Justice Puranik when the case reached before him on March 31, 1987.
It appears that an objection was taken to the language of the said undertaking on the ground that it did not state that respondent No. 1 was in possession of the suit premises and thereupon, Mr. R.J. Joshi, learned counsel for respondent No. 1, stated that the undertaking spoke for itself and that when it stated that respondent No. 1 shall not part with the possession of the suit premises it 387 meant that respondent No. 1 was in possession of the prem ises.
It was submitted that this statement must have been made after taking proper instructions and that, by instruct ing its counsel to make the statement, respondent No. 1 had clearly attempted to mislead the Court and the appellant.
It was urged that, m any event, this undertaking clearly im plied that if no interim order was obtained by respondent No. 1 from this Court, respondent No. 1 would hand over the possession of the premises to the appellant.
This assurance/undertaking was false to the knowledge of the appellant, as by that time, respondent No. 2 had already filed a suit in the Court of Small Causes claiming sub tenancy from respondent No. 1 and had obtained an interim ex parte injunction restraining the appellant from executing the decree in her favour.
It was submitted that the record discloses that respondent Nos. 1 and 2 were acting in collu sion with a view to defeat the decree obtained by the appel lant and to prevent the execution of the decree.
It was contended on behalf of the appellant that the resolution of respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was, on the other hand, contended by Mr. Cooper, learned counsel for respondent No. 1 that no contempt was made out by the appellant in the matter.
He vehemently argued that the case for taking action in contempt, set up by the appellant, was one of civil contempt.
Under the provisions of sub clause (b) of section 2 of the , in order to establish civil contempt, the alleged contemner must be proved to be guilty of wilful disobedience to any judgment, decree direction, order writ or other process of a Court or wilful breach of an undertak ing given to a court.
He drew our attention to the statement contained in Halsbury 's Laws of England, Volume 9 IVth Edition, at para 66 (page 40) that the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper.
notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.
It was further submitted by him that there is no such thing in law as an implied contempt.
Learned counsel urged that, in the present case, there was no mandatory injunction or order given by the court to the effect that respondent No. 1 must vacate the premises after eight weeks from 5th March when the undertaking was agreed to be given.
It was submitted that even if a view was taken that, in these circumstances, respondent No. 1 must be held to have given an undertaking to give possession of the said suit premises to the appellant after the said period of eight weeks, there was no wilful breach on the part of respondent No. 1 in not complying with that undertaking as 388 it was respondent No. 2 who was claiming to be in possession of the said premises in his independent right as a lawful sub tenant and it was he who had obtained an interim injunc tion from the Small Causes Court.
It was urged by learned counsel that so far as respondent No. 2 was concerned he had not given any personal undertaking to the court.
It was submitted by learned counsel for all the respondents that before a court could take any action for contempt it must be strictly established that the contempt had been proved beyond reasonable doubt as an action for contempt was in the nature of a criminal proceeding.
Mr. Cooper drew our attention to the decision of this Court in The Aligarh Municipal Board & Ors.
vs Ekka Tonga Mazdoor Union and Others, [1970] 3 SCC p. 98 wherein it has been held that "In order to bring home a charge of contempt of Court for disobeying orders of Courts those who assert that the alleged contemners had knowledge of the order must prove that fact beyond reasonable doubt.
In case of doubt, however, benefit ought to go to the person charged." He further relied upon the decision of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., [1979] 3 SCR p. 685 wherein a Bench of two learned Judges of this Court held that "it is not open to the Court to assume an implied undertaking when there is none on the record.
" We now propose to examine the facts appearing on the record in the light of the aforesaid submissions and deci sions.
What we do find on the record is that when the writ petitions filed by respondent No. 1 in the High Court were dismissed by Puranik, J. by his order dated 5th March, 1987, learned counsel for respondent No. 1 applied for time for eight weeks to vacate the premises and the learned Judge gave the said time to respondent No. 1 to vacate the prem ises subject to its filing a written undertaking that it would not part with the possession of the suit premises or create third party interest in the suit premises.
It may be that time to vacate was applied for as respondent No. 1 desired to file an appeal to the Supreme Court.
The fact, however, remains that, if the claim of respondent No. 2 is correct, on that day he was already a lawful sub tenant of the suit premises and occupying the same.
Respondent No. 2 was none other than the Chairman of respondent No. 1 compa ny.
It is, therefore, inconceivable that respondent No. 1 could have been unaware of the claim of respondent No. 2.
It is, therefore, apparent that respondent No. 1 clearly tried to mislead the court when it gave instructions through its officers to learned counsel appearing for respondent No. 1 to apply for time to vacate the premises and remained silent when time was given on the condition that a written under taking as aforestated would be filed, suppressing from the 389 court the fact that respondent No. 2 claimed to be the sub tenant of the said premises and we have no doubt that re spondent No. 2 must have been a party to this course of action.
After some hesitation, the written undertaking was filed as aforestated which clearly implied that respondent No. 1 was in possession of the suit premises and in a posi tion to hand over possession of the suit premises to the appellant after the period of eight weeks expired.
Respond ents Nos. 1 and 2 knew fully well that this was not possible unless respondent No. 2 gave up his claim which he had no intention of doing.
Further, on March 31, 1987 learned counsel for respondent No. 1 appeared in court and stated that the undertaking spoke for itself and when it stated that respondent No. 1 would not part with the possession of the premises it meant that respondent No. 1 was in fact in possession thereof.
As we have already pointed out respond ent No. 2 was and continued to be the Chairman of respondent No. 1; his nephew, Prem Kumar Gupta, who was residing in the said premises in 1973, according to the evidence given by him in the Court of Small Causes, was a Director of respond ent no,. 1 company.
After all, respondent No. 1 is a company and it can have no knowledge or intention other than .the knowledge and intention of the people who control it.
We have no doubt at all that it was respondent No. 2 who, along with some of his family members, was in full charge of the affairs of respondent No. 1 company.
In these circumstances, it appears clear to us that all the actions taken by the legal advisors and counsel of respondent No. 1 including, in particular, the giving of the aforesaid undertaking as well as the clarification given by learned counsel regarding the meaning of that undertaking as aforestated were with the fullest knowledge and consent of respondent No. 2.
It is impossible to maintain this dichotomy, for the purposes of the contempt petition, between respondent No. 1 and respond ent No. 2.
Respondent No. 2 knew fully well when he autho rised the giving of the undertaking on behalf of respondent No. 1 or consented to its being given that respondent No. 1 was in no position to hand over possession of the suit premises in execution of the decree because respondent No. 2 claimed to be in possession of the said premises and claimed subtenancy rights in the same and had no intention whatsoev er of giving up the claim.
In fact, the entire course of conduct adopted on behalf of respondent No. 1 was only with one aim in view and that was to frustrate or to at least delay indefinitely the execution of the decree which the appellant had obtained after the lapse of many years and after such sustained and lengthy legal proceedings which must have caused the appellant considerable expenses and anguish.
It is significant that till Mr. R.J. Joshi, the learned counsel, who gave the clarification in respect of the said undertaking was alive, no contention was ever 390 raised that the clarification was given by him without taking instructions or that respondent No. 1 or respondent No. 2 were not aware of the same.
It was only after the sudden demise of the learned counsel that this contention was first raised by respondent No. 1.
This conduct speaks volumes for the dishonest attitude adopted by respondents nos.
1 and 2.
Raising this contention after the death of Mr. R.J. Joshi can only be regarded as one more of the tricks which respondents nos.
1 and 2 have played throughout the case in order to defeat and delay the execution of the decree for possession against respondent No. 1.
In the circumstances set out earlier, although the learned Judge of the High Court might have felt constrained by what he considered to be the limits of his jurisdiction in a contempt proceeding, we feel that our hands are not so tied and, where there is patent dishonesty on the part of respondents Nos. 1 and 2 writ large on the face of the record, the law does not require that we should sit back with folded hands and fail to take any action in the matter.
We find that under clause (1) of Article 142 of the Constitution, it is provided that this court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so passed or order so made shall be enforced throughout the territory of India in the manner set out therein.
In the circumstances which we have already set out earlier, we are of the view that re spondent No. 1 is guilty of misconduct amounting to contempt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu tion of the decree in favour of the appellant or otherwise.
It is significant that the claim of sub tenancy set up by respondent No. 2 is pursuant to an alleged resolution of respondent No. 1.
We have also no doubt that respondent No. 2 was a party to this breach of the undertaking being com mitted and, in fact, it was he at whose instance respondent No. 1 committed the breach of the undertaking as aforestat ed.
We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be strictly complied with before any person can be committed for contempt.
Howev er, as we have pointed out, respondent No. 1 gave an under taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 No. 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the learned counsel for respondent No. 1 as set out earlier.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, we fail to see how it can be said that they are not guilty of contempt.
Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises.
We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and others, J.T. where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that "it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt.
" At the same time, we are conscious of the fact that we cannot altogether foreclose the claim set up by respondent No. 2 in the declaratory suit filed by him in the Court of Small Causes to establish that he is a sub tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947.
However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her.
All the necessary parties to that suit are before us and have had and adequate opportunity to be heard.
In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court and pass in its place the following order: The Court Receiver, High Court of Bombay who has already been appointed by our order dated January 25, 1990 shall take possession of the suit premises from the present agent and shall appoint the appellant as his agent in respect of the suit premises and hand over possession to the appellant of the suit premises on such terms and conditions as the Court Receiver may think fit but with the limitation 392 that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order to meet unforeseen contingencies.
This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver.
It is clarified that the possession of the prem ises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities.
It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court.
In the event of respondent No. 2 being able to finally estab lish his right to the sub tenancy of the suit premises as claimed by him in the declaratory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised.
Respondents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20,000 the liability for the payment of the said aggregate amount being joint and several as between respond ents Nos. 1 and 2.
As far as respondent No. 3 is concerned, we do not propose to take any action against him.
N.P.V. Appeal allowed.


Summary:
The appellant landlord obtained a decree of eviction of respondent No. 1 company from the suit premises.
Aggrieved, respondent No. 1 filed a Writ Petition before the High Court.
Dismissing the Petition, the High Court granted eight weeks ' time to respondent No. 1 for vacating the suit prem ises, subject to the filing of an undertaking that it will not part with the possession of, or create third party interest in, the suit premises in any manner whatsoever.
After some correspondence respondent No. 3, by an affidavit, filed the required undertaking on behalf of respondent No. 1 but without mentioning that the respondent No. 1 had not already parted with possession of the suit premises or created any third party interest therein.
Later, counsel for respondent No. 1 clarified that when the undertaking stated that respondent No. I would not part with possession it meant that respondent No. 1 was in possession.
But, in the meantime, respondent No. 2 Chairman of respondent No. 1 Company filed a suit claiming a declaration that he was the lawful sub tenant and the decree for possession was a nulli ty and obtained an injunction, thus preventing the appellant from executing the decree.
Thereupon, the appellant filed a petition for contempt before the High Court praying that the respondents should be punished under the provisions of the Contempt of Courts Act, 1972.
The High Court rejected the petition.
381 In the appeal before this Court, it was contended on behalf of the landlord appellant that the High Court was in error in holding that no contempt was established against the respondents, that the undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over vacant and peaceful possession of the same after eight weeks, which was also made clear from the clarification given by counsel for respondent No. 1 that this assurance/undertaking was false, as by that time re spondent No. 2, had already filed a suit claiming sub tenan cy from respondent, that the record disclosed that respond ents No. 1 and 2, were acting in collusion with a view to defeat the decree obtained by the appellant and to prevent the execution of the decree and that the resolution of the respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was submitted on behalf of the respondent that before a Court could take any action for contempt, it must be strictly established that the contempt had been proved beyond reasonable doubt, as an action for contempt was in the nature of a criminal proceeding.
Allowing the appeal, this Court, HELD: .
I The Proceedings in the contempt are quasi criminal in nature, and law of contempt has to be strictly interpreted, and the requirements of that law must be strictly complied with before any person can be committed for contempt.
However, where there is patent dishonesty writ large on the face of the record, the law does not require that this Court should sit back with folded hands and fail to take any action in the matter.
In exercise of its juris diction under clause (1) of Article 142 of the Constitution, this Court may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it.
[391G H; C D] 1.2 In the instant case, respondent No. 1 gave an under taking based on an implication or assumption which was false in its knowledge and to the knowledge of respondent No 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the counsel for respondent No. 1.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, it cannot be said that they are not guilty of contempt.
382 Respondent No. 1 is guilty of misconduct amounting to con tempt and must be held to have committed contempt by giving the undertaking and instructing its counsel to give the clarification of the meaning of the undertaking knowing fully well that it was not in possession of the suit prem ises, and was not in a position to give possession of the suit premises, to the appellant in execution of the decree in favour of the appellant or otherwise.
There is no doubt that respondent No. 2 was a party to this breach of the undertaking being committed and, in fact, it was at his instance that respondent No. 1 committed the breach of the undertaking.
[391H, 392A B, 391E F] 1.3 Respondents No. 1 and 2 cannot be allowed to thwart the execution of the decree and continue to remain in pos session of the suit premises.
No doubt, the claim set up by respondent No. 2 in the declaratory suit filed by him to establish that he is a sub tenant of the suit premises and entitled to protection of the Bombay Rents, Hotel and Lodg ing House Rates (Control) Act, 1947 cannot be foreclosed.
However, by reason of any interim order obtained in that suit, the appellant can no longer be deprived of the posses sion of the said premises pursuant to the decree obtained by her, till the claim in the declaratory suit is established.
[392C, E] 1.4 The Court Receiver.
High Court, who has already been appointed should appoint the appellant as his agent in place of the existing agent, and hand over possession of the suit premises to her on such terms and conditions as he may think fit.
It would be open to respondent No. 2 to apply for vacation or variation of the order, in the event of his being able to establish his right to sub tenancy.
[392G, 393C] Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and Ors.
, J.T. , relied on.