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TMI Blog1990 (4) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reasonable 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 appellant died and after that the appellant is the landlady of the said bungalow. On the other hand, the appeal of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to or in breach of the order dated March 5, 1987. It was pointed out by the appellant that this undertaking 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 aforestated, it was pointed out by learned Counsel for the appellant that the undertaking was objected to as it did not state that 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Judge before whom the said contempt 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 undertaking given on behalf of respondent No. 1, that it would not part 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 petition. 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. 5 . It was submitted by Mr. Chidambaram, learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exparte 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 collusion with a view to defeat the decree obtained by the appellant 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 subtenancy was fabricated and antedated. 6 . 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 Contempt of Courts Act, 1971, in order to establish civil co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in Babu Ram Gupta v. Sudhir Bhasin and Anr. 1979CriLJ952 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. 8. We now propose to examine the facts appearing on the record in the light of the aforesaid submissions and decisions. What we do find on the record is that when the writ petitions filed by respondent No. 1 e 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 premises 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dichotomy, for the purposes of the contempt petition, between respondent No. 1 and respondent No. 2. Respondent No. 2 knew fully well when he authorised 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 sub tenancy rights in the same and had no intention whatsoever 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 raised that the clarification was given by him without taking instructions or that respondent No. 1 or respondent No. 2 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be strictly interpreted and that the requirements of that law must be strictly complied with before any person can be committed for contempt. However, as we have pointed out, respondent No. 1 gave an undertaking based on an implication or assumption which was false to its knowledge and to the know Sedge 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 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 executio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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