Case: Dr.(Mrs.) Roshan Sam Boyee Vs. B.R. Cotton Mills Ltd.

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 s aid 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 194 9, the appellantbecame 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 s uit 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 defaul t 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 su it 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 husb and 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 ren t 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, r espondent 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 hearingbefore a learned Single Judg e 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 ti me 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 direc ted under the order dated 5.3. 1987. 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 claimin g 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 cha nce, 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, aff irmed 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 complian ce 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 wi th the possession of suit premises or create any third party interest in the suit premises in any manner whatsoever. The undertaking did notstate that respondent no. 1 had not, before the undertaking was given parted with the possession of the suit pr emises 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- la nt 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 la wful 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 provi sions of the Contempt of Courts Act, 1971. 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 Bomba y 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-ten ant 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 posse s- 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 poss ession. He took the view that the aforesaid under- taking given on behalf of respondent no. 1, that it would not part 386 with possession or create any third party interest in the suit premises, did not imply that respondent no. 1 was in actual p hysical 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 lear ned 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 appella nt 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 resp ondent 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 o ut 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.

Court's reasoning:
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 pa ssed 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 contem pt 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 str ictly 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 n o. 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 e qually 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 t his, 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 v. Sh.K.M.M. Shetty and others, 1989 (4) JT 573 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 factthat 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 t o 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