Tarlochan Singh vs Avtar Kaur

G.C. Garg, J.

Facts giving rise to this Contempt petition may in brief be noticed thus :

It deserves to be noticed at the very outset that the parties to this litigation are close relations. Roshan Singh, brother of the respondent herein, filed a suit through his brother Avtar Singh as his attorney, for mandatory injunction directing defendant Avtar Kaur, respondent herein to vacate the house and surrender its possession on the plea of it being in her occupation as a licensee. The suit was contested by Avtar Kaur. Her case was that her brother Roshan Singh had entered into an agreement with her on 22.2.1978 for transfer of the house in her favour. The suit was put to trial and the same was ultimately decreed by the then Senior Sub Judge, Hoshiarpur by judgment and decree dated 16.3.1991. Plea of the defendant as taken in the proceedings of the suit was rejected by the trial Court. DefendantAvtar Kaur, aggrieved by the judgment and decree dated 16.3.1991 passed by the trial Court, filed appeal which was disposed of by learned District Judge on 9.6.1993 on the basis of the settlement arrived at between the parties. Appellant before the District Judge made a statement which was reduced into writing wherein she admitted that her brother Roshan Singh was the owner of the house in question who was residing with his family in England and that if and when he came to India and asked for the house being vacated for his residence, she will vacate the same. In view of this statement made by Avtar Kaur, the appeal was dismissed.

Roshan Singh came to India on 13.8.1993 and on 14.8.1993, he asked the respondent herein to vacate the house in the presence of Avtar Singh, Mehar Singh and Tarlochan Singh but the respondent refused to vacate the house. Roshan Singh ultimately died in India on 16.8.1993 who was survived by his son Tarlochan Singh and others. Tarlochan Singh son of Roshan Singh served notice dated 2.9.1993 through his counsel, Shri P.S. Sangha, Advocate, Hoshiarpur calling upon the respondent to hand over the vacant possession of the house, and for noncompliance of the order, he would initiate contempt proceedings for violating the undertaking given to the court. Notice was replied by Sh. Sham Lal Handa, Advocate on behalf of the respondent. A copy of the reply is Annexure R1 to the written statement filed to the contempt petition. The broad stand taken in the reply to the notice is that she is not liable to vacate the house. She called upon Tarlochan Singh to withdraw the notice unconditionally. Since the house was not vacated, Tarlochan Singh filed the present contempt petition under Section 12 of the Contempt of Courts Act praying that the respondent be proceeded against and punished under the aforesaid Act.

On notice of the petition having been issued, respondent put in appearance and filed reply. The stand taken by the respondent is that the contempt petition is not maintainable for violation of the statement made in the Court and that an effective remedy is available to the petitioner by way of execution under JUDGMENT 39 Rule 2A of the Code of Civil Procedure. It is also the stand of the respondent that no undertaking was given to the Court and the statement made by her could not be taken to be an undertaking to the Court which could be made the subjectmatter of the contempt petition and that the respondent never backed out from her statement and in fact her brother never asked her to vacate the house and she came to know of his return only when she came to know about his death.

This matter came up for hearing before Amarjeet Chaudhary, J. on various occasions before it was listed before me. On 24.8.1994, Amarjeet Chaudhary, J. granted three months time to the respondent to comply with the undertaking given in court (i.e. in the court of learned District Judge, (Hoshiarpur). Despite the time having been granted, the respondent did not surrender the possession. Under the directions of this Court, the respondent came present in Court on 14.3.1995, 15.3.1995 and 2.5.1995. She is even present in Court today also. On the dates she came present in Court, she was asked if she was ready to surrender the possession of the house in question even now. She took a definite stand that she is not prepared to vacate the house and will vacate the same only when Tarlochan Singh comes to India permanently and not otherwise.

Learned counsel for the petitioner submitted that the statement made by the respondent on 9.6.1993 before the learned District Judge, to the effect "My brother Roshan Singh is the owner of the disputed house, who is residing with his family at present in England. As and when he will come to India and ask me to vacate the house, I will vacate the house for them. I had accepted this only to settle the dispute but he had promised me to give this house" is nothing but an undertaking given to the court and the violation thereof is punishable under the Contempt of Courts Act. He submitted that Roshan Singh came to India and asked the respondent to vacate the house on 14.8.1993 in the presence of Avtar Singh, Mehar Singh and Tarlochan Singh. But the house was not vacated even after the son of Roshan Singh served a notice dated 2.9.1993 on her. The respondent thereby perpetuated the contempt. Learned counsel for the petitioner further submitted that not only this, by order dated 24.8.1994, this Court having regard to the close relationship of the parties, afforded an opportunity to the respondent by giving her three months time for complying with the undertaking given in the Court, but the respondent did not surrender possession even thereafter. Even otherwise she is not prepared to surrender possession and in this behalf she has taken a categorical stand while appearing in these proceedings before this Court.

On the other hand, learned counsel for the respondent submitted that the statement of the type, as given by the respondent in the Court on 9.6.1993 cannot be taken to be an undertaking to the Court and, therefore, the respondent is not liable to be punished under the Contempt of Courts Act. According to the learned counsel, the statement was in the nature of a compromise. It was further submitted that the respondent who is a widow, on being deserted was kept by her brother Roshan Singh, as the other brother is not pulling well with her. As regards the statement to vacate the house, it was submitted that she agreed to vacate the house only if Roshan Singh came to India and settled here permanently. He having died, his son is in England and she will vacate the house if his son Tarlochan Singh permanently comes to India for settling down here. It was disputed that Roshan Singh ever asked the respondent to vacate the house and it was only the petitioner who asked for the aforesaid possession and he cannot, in the circumstances of this case, get possession. Learned counsel in support of his submission has relied upon Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho, AIR 1948 (35) Calcutta 294 and Surjit Singh Sahni v. Union Bank of India, 1993(1) Punjab Law Reporter 262.

It may at this stage be mentioned that the respondent filed another suit and obtained on order of injunction, but the same has since been vacated by the trial Court vide order dated 27.4.1995.

In Nisha Kanto Roy Chowdhury''s case (supra) the owner brought a suit for ejectment against the lessee on the ground that the letter had installed certain image on the premises without owner''s consent. The suit was compromised. The tenant had undertaken to remove the image before giving up possession of premises or at any time prior thereto, on demand by the owner. The compromise was presented to the court and a decree was passed in terms of the compromise. On a later date the owner moved the court that the tenant be punished under the Contempt of Courts Act.

In the above situation it was held that on the true construction of the compromise, the mere use of the word "undertake" did not mean a promise to Court. It was only a solemn promise by the tenant to the owner and the nature of that promise or undertaking could never be changed by reason of the compromise being accepted by the court and a decree passed in its terms. Consequently, the contempt petition was dismissed with the above observation.

In Surjit Singh Sahni''s case (supra) it was held that before respondent could be punished, it must be proved that the breach or disobedience was wilful or contumacious and the act of the contemner signified disrespect to the court. It was further held that in order to amount to contempt of Court and to be punishable as such, the mere breach of the compromise and disobedience of the order passed by the Court was not enough. It must be further proved that the breach or disobedience was wilful or contumacious and the act of the contemner, therefore, signified disrespect to the Court. The Bench noticed in that case, that only a statement was made and the same would not take the character of an undertaking.

Learned counsel for the parties have been heard and the record perused.

Suit filed by Roshan Singh against the respondent, directing the latter to vacate the house in question and deliver its possession was decreed by judgment and decree dated March 16, 1991. Respondent filed appeal before the learned District Judge. She made statement in the proceedings of the appeal, as has already been noticed above. After the respondent made statement, her appeal was dismissed and the suit filed by Roshan Singh was dismissed as withdrawn. This fact alone clearly goes to show that Roshan Singh acted on the statement of the respondent made before the appellate court and withdrew his suit. It is also apparent that the learned appellate court keeping the statement of the respondent in view, dismissed the appeal. Such a statement as made by the respondent and has been noticed above, in my view, is nothing but an undertaking to the Court. In view of this statement, the respondent was legally bound to vacate the house as and when asked for by Roshan Singh. It is further clear from the record that Roshan Singh did come to India and asked the respondent to vacate the house and hand over its possession to him, but she refused to do so even in spite of having been served with a notice through an advocate. It is strange to notice that in reply to the notice, she rather took a stand that she had filed a suit against the petitioner (Tarlochan Singh) and others regarding the same property in which an injunction had been granted in her favour. It may be useful to mention here again that the injunction as referred to by the respondent in the reply to the notice has since been vacated by the trial Court vide its order dated April 27, 1995, a copy of which has been placed on record.

It is settled law that breach of an undertaking given to a court by a person in a pending proceeding on the faith of which the court sanctions a particular course of action is a misconduct amounting to contempt. In other words, it can be said that if one refuses to abide by the undertaking, it clearly smacks of contempt of court. In order to arrive at the conclusion whether a particular act falls within the mischief of contempt of court or not, all that is primarily required to be seen is whether such a statement is an undertaking; was it made to the court as such or merely a promise to the opposite side and if it was an undertaking to the court, was there a wilful disobedience or evasive failure on the part of the contemner so as to amount to contempt of court. Seen in the light of the above principles, the statement of the respondent as made before the learned appellate court is certainly an undertaking to a court in pending proceedings on the basis of which the court proceeded to dispose of the matter and consequently, in view of her statement and the statement made on behalf of the defendantappellant therein, set aside the judgment and decree dated 16.3.1991 of the trial Court and dismissed the plaintiff''s suit as withdrawn. The statement was thus not in the nature of compromise. It was clearly a statement made in the Court and thus, an undertaking to a court in pending proceedings. Nisha Kanto Roy Choudhury''s case has, therefore, no application to the facts and circumstances of the present case.

As noticed already, a perusal of order dated 24.8.1994 passed by Amarjeet Chaudhary, J. shows that his Lordship had in a way taken the respondent''s statement as an undertaking and thus provided her an occasion to comply with the said undertaking by surrendering possession. But the respondent instead of complying with the said order, filed Contempt Appeal 7 of 1994 against the order of his Lordship which met with failure. Even after this, respondent was asked to surrender possession but she stuck to her stand. This offer was made having regard to the close relationship between the parties.

This is not a case where respondent may say that she had no knowledge of the order passed, for the respondent was represented by a counsel before the appellate court and more so, the order was passed in her presence and even in view of her own statement. To me, wilful disobedience means disobedience to any judgment, decree, direction, order, writ or other process of court or wilful breach of an undertaking given to the court. If the respondent had not given the undertaking to the Court, the suit of Roshan Singh plaintiff would not have been dismissed as withdrawn. Thus the statement made by the respondent is an undertaking and the evasive failure on her part to abide by it, is clearly disobedience and a wilful and contumacious act, thereby amounting to civil contempt as defined under section 2(b) of the Contempt of Courts Act.

As far as the stand now taken by the respondent that as and when Tarlochan Singh, who is presently residing in England, comes to settle here permanently, she will vacate the house, is concerned, this device seems to have been adopted by her in order to protect her possession. There is no mention of the name of Tarlochan Singh in the statement of the respondent made before the appellate court. Thus the changed stand of the respondent as noticed above, cannot be recognised as far as the present contempt proceedings are concerned.

In Saleemuddin and another v. Sharfuddin and others, AIR 1980 Delhi 39, it was held that breach of an undertaking given to the court amounts to contempt in the same way as a breach of an injunction and is liable to be visited by the same punishment as far as breach on an injunction. In the light of the observations aforesaid, the respondent here is also liable to be punished in the same way as if she has disobeyed an injunction issued by a court.

Keeping in view the totality of the facts and circumstances as noticed above, I am clearly of the opinion that the respondent has wilfully and deliberately failed to abide by the undertaking given by her to the appellate court, for she did not surrender the possession of the house in question when asked by Roshan Singh, the owner thereof. Rather she refused to vacate the house after the death of Roshan Singh and shifted her stand that when Tarlochan Singh son of Roshan Singh comes and settles in India permanently, she will vacate the house. Several occasions were provided to enable the respondent to surrender possession of the house, but she remained adamant and her stand as on today is also the same as it was on previous occasions. Thus, I have no option but to hold her guilty under the Contempt of Courts Act. Consequently, this petition succeeds and is allowed. The respondent is sentenced to undergo simple imprisonment for a period of four months and to pay a fine of Rs. 2000/. In default of payment of fine, the respondent will further undergo simple imprisonment for a period of one month. However, on the oral request of the learned counsel for the respondent, the sentence is suspended for a period of 15 days to enable the respondent to file appeal. If, however the appeal is not filed or the sentence is not suspended by the appellate Bench, the respondent shall, immediately on the expiry of 15 days, surrender before learned Sessions Judge, Hoshiarpur to undergo the sentence awarded.