T.M.A. Abdul Hameed vs S. Radhakrishnan

Srinivasan, J.—This case is an illustration as to how a litigant can thwart an order passed by this Court on the basis of a compromise to

which he was a party.

GENESIS

The applicant herein is admittedly the owner of the premises No. 12, Mooker Nallamuthu Street, Madras-1. The Respondent was a tenant of

the western shop in the said building under the applicant. The applicant filed H.R.C. No. 744 of 1976 u/s 10(3)(c) of the Tamil Nadu Buildings

(Lease and Rent Control) Act on the ground of requirement for additional accommodation. The applicant was residing in a portion of the aforesaid

premises. The Respondent raised an objection that the application was not maintainable u/s 10(3) (c) of the Act as he sought additional

accommodation for the purpose of his business. The Rent Controller overruled the objections raised by the Respondent and ordered eviction. On

appeal by the Respondent, the Appellate Authority while upholding the bona fides of the requirement of the applicant, allowed the appeal on a

technical ground that the application should have been filed by the applicant u/s 10(3)(a) (iii) of the Act and not under S.(10) (3) (c) of the Act.

Thereafter, the applicant filed H.R.C. No. 308 of 1980 u/s 10(3)(a)(iii) of the Act. The Respondent contested the same on the ground that it was

barred by res judicata in view of the dismissal of the earlier proceeding for eviction. The contention raised by the Respondent was considered as a

preliminary objection and by order dated 15-7-1980, the Rent Controller held that the proceeding was not barred by res judicata. He directed

that the main petition would be taken up for disposal on 19-7-1980. The Respondent filed H.R.A. No. 1231 of 1980 on the file of the VI Judge,

Court of Small Causes, Madras, against the order of the Rent Controller. The Appellate Authority concurred with the view taken by the Rent

Controller and dismissed the appeal by an order dt.20-6-1981. Thereafter, the Rent Controller passed an order of eviction on 30-4-1984 after a

severe contest by the Respondent. One of the main contentions raised by the Respondent was that the applicant had already obtained vacant

possession of the eastern shop and he was keeping the same under lock and key with a view to let it out to some other party for a higher rent. That

contention was negatived by the Rent Controller, who accepted the case of the applicant that the eastern shop was used as a godown by

Hardware Traders"", a partnership firm in which he was one of the partners and that it was not vacant. The order of eviction was challenged by the

Respondent by an appeal in R.C.A. No. 874 of 1984. The Appellate Authority confirmed the order of eviction by his order dated 29-8-1985.

Against the said order, the Respondent preferred a revision to this Court which was taken on file as C.R.P. No. 3948 of 1985.

UNDERTAKING: During pendency of the said revision petition, there was a compromise between the applicant and the Respondent and the

relevant portion of the memo of compromise reads as follows:

By consent an order may be passed in the above C.R.P. on the following terms:

The Petitioner-tenant undertakes to vacate the premises No. l2(01d No. 23) Mooker Nallamu-thu St., Madras-1 (Western side portion) in the

ground floor on or before 31-7-1987.

When the Memo of compromise was filed in Court, Sathar Sayeed, J., passed the following Order on 28.1.1986:

The tenant, having lost in both the authorities below, has filed the above Civil Revision before this Court.

After some arguments, the respective counsel appearing for the parties decided that the matter has to be compromised. Accordingly, a memo of

compromise is tiled before me today duly signed by the respective parties and their respective counsel. The said memo of compromise will form

pars of this order. In view of the memo of compromise filed by the parties, there will be a decree in terms of the memo of compromise. The Civil

Revision petition is ordered accordingly. There will be no order as to costs.

The decretal order passed by this Court was as follows:

This petition coming on for hearing on Wednesday the 23rd day of July 1986 and this day in the presence of Mr. V. Subramaniam, Advocate for

the Petitioner and Mr. A.J. Abdul Razak. Advocate ror the Respondent having entered into a compromise between themselves and through their

Advocates and having filed a memorandum of compromise requesting the Court to pass an order in terms of the said memo of compromise duly

signed by the parties as well as by their respective counsel upon perusing the petition, the order of the lower court and the records in the case and

the said memorandum of compromise, the original of which is annexed herewith and the Petitioner-tenant undertaking to vacate the premises No.

12 (Old No. 23), Mooker Nallamuthu Street, Madras-I (Western side portion) in the ground floor on or before 31 7-1937(sic), this Court doth

record the said memo of compromise and both in terms thereof order as follows:

That the Petitioner-tenant does have time till 31-7.1987 to vacate the said premises:

2- That the Petitioner-tenant shall continue to pay the rent of Rs 600/ (Rupees six hundred only) per month regularly till 31.7.87 without any

default;

That the Petitioner-tenant shall not cause damage to the building, and not sublet the building: and

that there be no costs in this petition.

BREACH Before the time to vacate the premises expired, the Respondent filed a suit O.S. No. 5448 of 1987 on the file of the III Assistant

Judge, City Civil Court, Madras, on 2-7-1987 against the applicant and a tenant of his with reference to the eastern shop for a declaration that the

order of eviction dated 30-4-1984 made by the Rent Controller was null and void and consequential permanent injunction restraining the applicant

from interfering with the Respondent''s possession and enjoyment of the western shop by executing the order of the Rent Controller. In the plaint, it

was alleged that the order of eviction was obtained by committing fraud, misrepresentation and suppression of material facts. It was further alleged

that the applicant bad let out the eastern shop to the second Defendant in the suit after the disposal of the C.R.P., and, therefore, the Respondent

was entitled to question the eviction order passed by the Rent Controller. The applicant filed a written statement denying the allegations made in the

plaint and questioning the maintainability of the suit. The Respondent filed I.A. No. 12194 of 1987 for interim injunction till the disposal of the suit.

The III Assistant Judge passed an order on 4-8-1987 granting injunction in favour of the Respondent restraining the applicant from interfering with

the possession of the Respondent by executing the order of eviction. Against the said order, the applicant filed C.M.A. No. 161 of 1987 on the file

of the II Additional Judge, City Civil Court, Madras. When the appeal was taken up for hearing, both the parties represented that the appeal could

be closed with a direction to the trial Court to dispose of the suit expeditiously as per the time schedule that may be fixed by the appellate Court.

Accordingly, the appeal was disposed of with certain directions to the trial Court on the basis of the consent of both parties. That order was

passed on 17-12-1987. It was thereafter, the applicant filed a written statement in the suit. Though the appellate Court gave a direction to the trial

Court to take up the trial of the suits in the first week of March, 1988 positively and dispose of the same on merits and according to law by the

second week of March without fail, the suit continued to be pending even in June. 1988.

INITIATION OF CONTEMPT PROCEEDING: At that stage, it dawned upon the applicant to present this application for punishing the

Respondent for contempt of Court by contravening the order of this Court dated 28-7-1986 made in C.R.P. No. 3948 of 1985. The application

was presented in Court on 30-6-1988. It came up for orders on 9-9-1980. I ordered notice returnable by 30 9-1988. The notice was served on

20-9-1988 on S. Raju, the Manager of Associated Traders of which the Respondent is the proprietor.

HIDE AND SEEK: When the matter was called in Court on 30-9-1988, Mr B. Soundarapandian, advocate, appeared and represented that he

would file vakalat for the Respondent. When I enquired him why the Respondent was not present in court, he replied that the notice was not

received by the Respondent and so he was not personally present. I gave time for filing counter and vakalat till 14-0-1988 and directed that the

Respondent should be present in Court on that day. For some reason or other, the matter was not posted on 14-10-1988. It was actually posted

on 25-10-1988. On that day, Mr. N. Chandrasekaran, advocate, appeared for the Respondent and filed a counter affidavit. Mr Soundarapandian

did not appear. Learned Counsel prayed for an adjournment till 28-10-1988 for arguments.

On 28-10-1988, Mr. R.S. Venkatachari appeared as senior counsel for the applicant and argued the matter. After he concluded his arguments,

Mr. V.P. Raman, who appeared as senior counsel for the Respondent, commenced his arguments. At one stage of his arguments, I expressed my

view that it was a clear case of contempt and also abuse of process of court. Mr V.P. Raman said that he would advise his client to vacate the

premises in two weeks and withdraw the suit filed in the City Civil Court and that he did not want to argue the matter any further. I adjourned the

matter to 14-1 1-1988.

AGGRAVATION: On 14-11-1988, Mr. S. Govind Swaminathan, senior advocate, appeared as senior counsel and represented that he would

like to argue the matter on 18-11-1988. He also said that an application had been filed a few days earlier for striking down the compromise

memo, filed in C.R.P. No. 3948 of 1985 and the said application could also be heard along with this application on 18-11-1988. It appears that

M/s. P. Subba Reddy and N. Karthi-keyan, had filed vakalat for the Respondent with the consent of Mr. N. Chandrasekaran who entered

appearance earlier and filed the counter affidavit. Mr. Govind Swaminathan was appearing only as senior counsel for M/s. Subba Reddy and

Karthikeyan. The application for striking down the compromise memo referred to by learned Counsel was presented on 10 11-1988 with the

prayers to ""strike down the compromise memo, filed by the Petitioner/Respondent in C.R.P.3948 of 1985 in view of subsequent conduct of the

Respondent from 28-7-1986"" and ""punish the Respondent for making false statements and adducing false evidence in H.R.C No. 308 of 1980

and before Hon''ble higher Courts for obtaining vacant possession in relation to premises No. 12, Mooker Nallamuthu Street, Madras-1"". It was

alleged in the affidavit filed in support of the application that the compromise memo, filed in the Civil Revision Petition was not valid for the reasons

set out in the affidavit and that the Petitioner herein was the person who had committed contempt and not the Respondent. The application

purported to be under Rule 11 of the Tamil Nadu Buildings (Lease and Rent Control) Act. It is not clear whether the petition was under Rule 1 of

the Rules framed under the Act or u/s 11 of the Act. Neither Section 11 of the Act nor Rule 11 of the Rules framed under the Act was applicable

The Registry raised an objection as to the maintainability of the application and posted the matter for orders relating to maintainability along with

this contempt application. Learned Counsel for the Respondent did not want to argue on the question of maintainability of the said application.

Hence, 1 rejected the application as not maintainable.

MITIGATION: Even before the commencement of the arguments in the Contempt Application, Mr. Govind Swaminathan brought to my

notice that on his advice his client vacated the premises and when the key was sent to learned Counsel for the applicant it was refused. Learned

Counsel for the applicant explained the reason for refusing to accept the key as that the entire portion occupied by the Respondent was not

vacated and there were certain things belonging to the Respondent still in the premises and unless they were removed, he could not accept the key

of the premises. At my instance it was agreed that the things belonging to the Respondent would be removed and vacant possession of the

premises would be handed over to the applicant on 20-11-1988 in the presence of counsel for the applicant and the Respondent. It was also

agreed by the Respondent that he would file a memo in this Court that he would withdraw the suit O.S. No 5448 of 1987 on the file of the City

Civil Court, Madras. Accordingly, a memo signed by the Respondent and his counsel Mr. Subba Reddy was filed in the afternoon.

. ARGUMENTS: Mr. Govind Swaminathan contended that there was no contempt of Court in this matter as there was no undertaking by the

Respondent to the Court. According to learned Counsel, the undertaking was only in favour of the applicant as a term of compromise between the

parties and there was no undertaking to the Court as such. Learned Counsel submitted that a Court could punish a party for breach of an

undertaking only if the undertaking is to the Court. Secondly, it was urged that Section 20 of the Contempt of Courts Act, 1971, bars this Court

from initiating any proceeding for contempt after the expiry of a period of one year from the date on which the contempt is alleged to have been

committed. Learned Counsel submitted that the contempt in the present case, if at all, was committed on 31-7-1987, till which date the

Respondent was permitted to continue in possession of the premises and the Court issued notice in this application for contempt on 9-9-1988.

According to learned Counsel, the Court was prevented from issuing a notice after 30-7-1988.

After hearing arguments at some length on the aforesaid points, I directed learned Counsel to argue whether the power of this Court under

Article 215 of the Constitution of India to punish for contempt of itself is also governed by the limitation prescribed in Section 20 of the Contempt

of Courts Act. Learned Counsel for the Respondent argued that the provisions of the contempt of Courts Act regulate the procedure for initiating

proceedings for contempt and they would certainly apply to any proceeding under Article 215 of the constitution of India also. According to

learned Counsel, Section 20 of the contempt of Courts Act would apply to all proceedings for contempt, whether initiated suo motu or on

application. Learned Counsel for the applicant contended that in the present case there is a clear undertaking to the Court by the Respondent and

he having committed breach thereof, is guilty of contempt. It was further submitted that Section 20 of the Contempt of Courts Act is not applicable

to this case as the contempt is a continuing one and the Respondent has been committing contempt till 20-11-1988 when he delivered vacant

possession of the premises. It was further argued that by virtue of Article 215 of the Constitution of India, the power of this Court for punishing for

contempt is preserved in fact and it cannot be limited in any way by the provisions of Section 20 of the Contempt of Courts Act.

UNDERTAKING TO THE COURT: The contention that there was no undertaking to the Court by the Respondent is fallacious. I have

already extracted the decretal order passed in the Civil Revision Petition which expressly refers to the undertaking given by the Respondent herein.

Just because the undertaking is given pursuant to a compromise between the parties, it does not cease to be an undertaking to the Court. In order

to ascertain whether it is an undertaking to the Court or not, the circumstances under which it was given and the consequential order passed by the

Court should be considered. The term in the memorandum of compromise that the tenant undertakes to vacate the premises on or before

31.7.1987, was incorporated in the decree by an express reference thereto in the preamble. It was only on the basis of of the said undertaking, the

Court passed the decretal order granting time to the tenant till 31-7-1987 to vacate the premises. In the fair order also, the learned Judge who

dealt with the matter stated that the memo of compromise will form part of that order, The absence of the words ""to the court"" after the word

undertaking"", does not in any way alter the situation. On the facts of the case, I hold that the undertaking given by the Respondent is an

undertaking to the Court and it is not merely a promise made by the Respondent to the Petitioner.

Learned Counsel for the Respondent places reliance on the following observations made by the Supreme Court in Babu Babu Ram Gupta Vs.

Sudhir Bhasin and Another,

... It is manifest that any person appearing before the Court can give an undertaking in two ways: (1) that he files an application or an affidavit

clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated

by the court in its order. If any of these conditions are satisfied then a wilful breach of the undertaking would doubtless am-out to an offence under

the Act. Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by

the contemner, we are unable to find any material on record which contains such undertakings. It seems to us that the High Court has construed the

consent order itself, and the directions contained therein as an implied undertaking given by the Appellant. Here the High Court has undoubtedly

committed an error of law. There is a clear cut distinction be tween a compromise arrived at between the parties or a consent order passed by the

court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the

compromise or the order no question of contempt of court arises, but the party has a right to enforce the order or the compromise by their

executing the order or getting an injunction from the court.

It is seen from the facts of that case that no undertaking of any type was given by the party. In fact, the Supreme Court emphasises the said fact as

follows:

... In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the Appellant that

he would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver Apart from this, even the consent

order does not incorporate expressly or clearly that any such undertaking had been given either by the Appellant or by his lawyer before the Court

that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the Appellant or any

undertaking incorporated in the order impaired, it will be difficult to hold that the Appellant wilfully disobeyed or committed breach of such an

undertaking. . . .

The facts of the case before the Supreme Court bear no resemblance to the facts of this case. The observations of the Supreme Court relied on by

learned Counsel cannot be taken out of the context and applied to the present case.

My attention was drawn to the judgment of Division Bench of the Calcutta High Court in Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini

Goho ILR 1948 Cal. 294. In that case, a compromise containing an undertaking by the Defendant to remove the Kali image in the disputed

premises, was presented to the Court and a decree was passed in terms of the compromise. The terms of the decree are not available in the

report. The Bench observed that the compromise was negotiated between the parties outside Court and they had agreed to certain terms and

amongst other things, the Defendant promised or undertook to remove the image when called upon to do so. The Bench held that the agreement

was not with the Court, but with the Plaintiff/Respondent and there was no undertaking to Court as such. As the terms of the decree arc not

available in the report, it is not possible to express any opinion on the correctness of the decision. The view taken by the Bench may be correct on

the facts of that case as placed before it. If the Bench intended to lay down an abstract proposition of law, that there cannot be any undertaking to

Court in all cases of compromise between the parties, I should express my dissent thereto.

Learned Counsel also relied upon the decision of a single Judge of Allahabad High Court in Amar Chand Kapoor v. Roshan Lal AIR 1967

All. 442. The learned Judge has followed the decision of the Calcutta Bench in Nishu Kanto Roy Chowdhury''s case ILR 1948 Cal. 294 referred

to earlier and held that there is no undertaking to the Court. Referring to the decision of a Division Bench of the Bombay High Court in Bajranglal

Gangadhar Khemka and Another Vs. Kapurchand Ltd., , the learned Judge observed that the construction put up on the word ""undertaking"" by

the Bombay High Court was based not upon its plain and natural meaning but upon the technical meaning which it had come to acquire in that

Court over a number of years. According to the learned Judge, no such technical meaning had been acquired by that word in the Allahabad High

Court. I would hasten to add that in this Court also the word ""undertaking"" has acquired a technical meaning just as in the Bombay High Court. It

has not been the practice in this Court to use the expression ""undertaking to the Court"", but on the other hand, the practice in this Court is to use

the expression ""undertaking"" simpliciter.

In Prokash Chandra Mukherji v. Manin-dra Nath Mukherji ILR 1946 2 Cal. 499, the contention that there was no undertaking to Court and

there was only an agreement between the parties, was rejected with the following observations:

... The word ""undertaking"" is at times used loosely. It has to be ascertained in every case whether the promise which is sought to be enforced as an

undertaking is really a promise given to the other side so as to be a mere private agreement between the parties or whether it is an undertaking

given to the Court in the technical sense with the sanctity that is implied in it. I have already indicated the circumstances under-which this

undertaking came to be given and embodied in the decree. ...

In Bajranglal Gangadhar Khemka and Another Vs. Kapurchand Ltd., a Division Bench of the Bombay High Court consisting of Chagla, C.J.,

and Gajendragadkar, J. considered the question in detail. In that case, the Plaintiffs filed a suit for specific performance and alternatively for

damages. The plaintiffs were the lessees of a cinema known as the Paradise Cinema. There was a clause in the lease, which gave the Plaintiff an

option to purchase the property. The Defendants entered into agreement of sale of the property without giving the Plaintiffs the option to which

they were entitled. When the suit came up for hearing, the parties settled the dispute and the terms of consent were reduced to writing. One of the

terms of the compromise provided that the Defendants undertook to have the Paradise Cinema Limited to join as a confirming party to the lease to

be executed by them within two months in favour of the Plaintiffs. As there was a failure on the part of the Defendants to execute the lease, the

Plaintiff took out a motion for contempt of Court. It was argued before the Division Bench that there was no undertaking to the Court and there

was only a solemn promise by one party in favour of another party. The argument was rejected by the Division Bench with the following

observations:

We are not prepared to accept a position which seems to us contrary to the long practice that has been established in this Court, and, apparently,

also in England. There is no reason why even in a consent decree a party may not give an undertaking to the Court. Although the Court may be

bound to record a compromise, still, when the Court passes a decree, it puts its imprimatur upon those terms and makes the terms a rule of the

Court, and it would be open to the Court, before it did so, to accept an undertaking given by a party to the Court. There-fore, there is nothing

contrary to any provision of the law whereby an undertaking cannot be given by a party to the Court in the consent decree, which undertaking can

be enforced by proper committal proceedings.

The learned Chief Justice observed that the expression ""undertake"" had come to acquire through long practice a technical meaning and in all orders

and decrees of the Court whenever the expression ""a party undertakes"" had been used it had always borne the meaning that the undertaking had

been to the Court. It will be advantageous to extract the following passage in the judgment:

... But in our opinion, the expression ""undertake"" has come to acquire through long practice, a technical meaning. In all orders and decrees of the

Court, whenever the expression ""a party undertakes"" has been used, it has always borne the meaning that the undertaking has been to the Court.

The Advocate General has also referred us to the forms and orders thai appear in ""Seton on Decrees and Orders"", and in these forms the

expression used has always been ""a party ""undertakes and never a party undertakes to the Court."" Therefore, in English Courts as well, the

expression ""a party undertakes"" when used in decrees or orders has come to acquire the same technical meaning. What is more, it has been held

by Bhagwati, J. -an opinion with which I entirely agree-that it has been the long-standing practice on the original side that, whenever counsel

wishes to give an undertaking to the Court, he never expressly uses the words ""to the Court"" but merely states that he undertakes on behalf of his

client, and that undertaking is always understood to be an undertaking to the Court which could be enforced by committal proceedings.

The above view has been adopted in this Court by Venkatadri, J. in C.M.P-No. 8590 of 1965 in S.A. No. 1303 of 1964. After referring to

the judgment of the Bombay High Court, the learned Judge observed as follows:

... In the instant case, when the second appeal came before me, learned Counsel then appearing for the Respondents represented to me. that some

time might be given to his clients to enable them to seek alternative accommodation, and also gave an undertaking through his clients that they

would vacate the premises by 1.7.1965. The decree in S.A. No. 1303 of 1964 provided:

. . . the Advocate for the Appellants report ing to this Court that his clients are carrying on business in the suit premises for a number of years and

that it would not be possible for them to seek an alternative accommodation unless some time is given to them and having given an undertaking that

his clients would vacate the premises by 1.7.1965 and also filed a memorandum of undertaking dated 16.4.1965 to that effect, this Court doth

order and decree . . .

I am, therefore, of opinion that the undertaking given by the Respondents at the time of the second appeal is an undertaking given to the Court.

Even if the words ""to the Court"" are not mentioned after the word ''undertaking'', still the Court can see whether the undertaking is given to the

Court or not, by looking into the circumstances attending at the time of the undertaking given by the parties. In this case I have no doubt that the

intention of the Respondents was that the undertaking was to be an undertaking given to the Court; more so, when learned Counsel appearing for

the Respondents gives the undertaking in the open court that his clients would vacate the premises on or before a particular date. As observed by

Chagla, C.J., this is an undertaking by the counsel on behalf of his clients and that undertaking is understood to be an undertaking given to the

Court and it can therefore, be enforced in committal proceedings,

In Lala Shyam Sundar Vs. Lala Baij Nath Prasad, a similar contention that there was no undertaking to the Court was rejected by a Division

Bench with the following observations:

On behalf of the Appellant Mr. Ghosh argued that, as the formal order dated the 22nd September, 1959, did not expressly state that the

undertaking was given to the court, the undertaking was a promise made to the Respondent for the breach of which the Appellant could not be

committed for contempt of court. We cannot accept this contention. It is well settled that the breach of an undertaking given to the court by any

person in pending proceedings on the faith of which the court sanctions a particular course of action or inaction is misconduct amounting to

contempt. The point in issue is whether the undertaking given on 22nd September, 1959, is an undertaking to court on the faith of which the court

sanctioned some course of action or inaction. Now the court frequently ""proceeds upon undertaking given by parties and it is common practice to

insert the undertaking in the body of the order before the ordering part to which it relates so that in the event of breach it may be enforced by a writ

of attachment See Senton''s Forms of Judgments and Orders, 9th Edition Vol. I, pages 124 and 162. In the instant case the undertaking in

question was inserted in the introductory part of the order and in the substantive part of the order, it was stated that upon the undertaking given as

aforesaid, the court had directed the stay of execution of the order for a limited period. Plainly the undertaking was given to Court. On the faith of

the undertaking the Court sanctioned the stay of execution of the order. A reference to Seton''s Forms of Judgments and Orders shows that an

undertaking given to court in the technical sense is often expressed in formal judgments and orders as a simple ""undertaking.

The Bench proceeded to refer in Prokash Chandra Mukherji v. Manindra Nath Mukherji ILR 1946 2 Cal. 499 and Keshab Chandra Pal Vs.

Governor-General of India in Council and Another, . It was held that the latter case was distinguishable on facts.

A Full Bench of the Delhi High Court rejected a similar contention in Sardari Lal Vs. Ram Rakha, . That was a case which arose out of Rent

Control proceedings which ended in a compromise. Reliance was placed inter alia by the tenant on Babu Ram Gupta Vs. Sudhir Bhasin and

Another, case. The Full Bench repelled the contention observing that the Court was an active participant to the terms of the compromise and its

validity in a case for eviction on permissible grounds and material. Their Lordships observed that:

The fact that the undertaking does not expressly mention that it was given to the Courts is a matter of no consequence as on the interpretation of

the terms of the statement and a long practice understood by the counsel and Judges of this Court and the Courts subordinate to it, it is clear to us

that the undertaking must have been given to the Court. An undertaking recorded in Court has come to acquire a technical meaning it is always an

undertaking to the Court. Stay orders or injunctions prayed for are not granted when undertakings are given to the Court by the parties or their

counsel. "" . . . . . ."" thus the expression a party ''undertaking'' or ''gives a solemn promise'' used in the statements of the parties or their counselor in

the orders and decree of the Court, unless the context otherwise suggests, mean an implied undertaking to the Court. The undertaking is always

understood to be an undertaking to the Court, which undertaking could be enforced by committal proceeding?.

The latest case on the subject is Industrial Enterprises Vs. Metal Forgings (P) Limited, . Jain, J. of the Delhi High Court discussed the matter in

detail and referred to the decision of the Calcutta High Court and of the Supreme Court in Babu Ram Gupta Vs. Sudhir Bhasin and Another, and

observed as follows:

It is true that every undertaking given by a party to a litigation is not an undertaking to the Court; there is a difference between an undertaking

given to the other party and an undertaking given to the Court. The breach of an undertaking given to the other party will not constitute contempt of

Court. However, whether a particular undertaking is an undertaking to the Court or to the opposite party must depend upon the facts and

circumstances of each case and the language used. No doubt in the instant case, the parties negotiated a settlement outside the Court and reported

the same to the Court and the Court passed a decree in terms of the compromise. However, this would not warrant an inference that no

undertaking was given to the Court. It is clearly a case falling under the first method of giving an undertaking as expounded In Babu Ram Gupta

Vs. Sudhir Bhasin and Another, namely that the contemner files an application or an affidavit clearly setting out the undertaking given by him to

Court. As observed by the Supreme Court in the said case, if any of the two conditions mentioned therein are satisfied then a wilful breach of the

undertaking would doubtless amount to an offence under the Act This aspect of the matter was emphasised by the Supreme Court in para 10 of

the judgment as under:-

In the instant case, however, as indicated above, there is no application nor any affidavit nor any written undertaking given by the Appellant that he

would co-operate with the receiver or that he would hand over possession of the Cinema to the receiver... In the absence of any express

undertaking given by the Appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the Appellant wilfully

disobeyed or committed breach of such an under asking.

The use of the word ""or"" which is disjunctive is very significant to note. The instant case certainly satisfies one of the two methods of giving an

undertaking and, therefore, I am not persuaded to hold that failure/refusal on the part of the respondents to deliver vacant possession of the plot in

question to the Petitioner constitutes merely a breach of compromise and not of the undertaking ...

I have no hesitation to adopt the reasoning of the High Courts of Bombay and Delhi and to follow the judgment of Venka-tadri. J., of this

Court and hold that there was an undertaking in this case to the Court by the Respondent herein to vacate the premises on or before 31-7-1987

and he has committed a breach thereof. There is no dispute that an undertaking given to the Court has the same force as an injunction made by the

Court and a breach of the undertaking is misconduct amounting to contempt.

LIMITATION: 24. According to learned Counsel for the Respondent, Section 20 of the Contempt of Courts Act, 1971, has prescribed a period

of limitation of one year from the date on which the contempt is alleged to have been committed and that no Court shall initiate any proceeding for

contempt either on its own motion or otherwise after the expiry of the said period. According to learned Counsel, the terminus acquo in the present

case is 31-7-1987 and the initiation of any proceeding for contempt should have been made on or before 30-7-1988. The Law of Limitation is

founded on considerations of public policy and expediency. The intention of the law is not to give a right where there is none, but to impose a bar

after certain period to a proceeding to enforce an existing right. The object of the law is to compel litigants to be diligent in seeking remedies in

Courts of law by prohibiting stale claims. To secure the quiet and repose of the community, it is necessary that the title to property and matters of

right in general, should not be in a state of constant uncertainty, doubt and suspense. The Latin maxim interest rei-publicae utisitafinis lilium and

vigilantibus non darmientibus jura subveniunt forms the foundation of the law of limitation. By the very nature of things, the law of limitation is

applicable only with reference to enforcement of private rights. The necessity for putting the limit for litigation arises also from the perishable nature

of man and all that belongs to him. It has been said by John Voet that controversies are limited to a fixed period of time, lest they should be

immortal while men are mortal. Basically, law of limitation cannot be applied to proceedings for punishing criminals or offenders. That is partly

based on the exception made in favour of the Crown: Nullum tempus out locus occurrit regi (no time runs against, or place affects, the King). This

implies that there can be no laches on the part of the King and that, therefore, no delay will bar his right. The principle is that the King represents

the entire society and any action taken by him is not to enforce his individual right, but on behalf of the society as such. A criminal offence is an

injury to an individual as well as to the society. That is why the State prosecutes the criminals. Till recently, there was no limitation for prosecution.

It was introduced by the Code of Criminal Procedure, 1973. The main ground for prescribing limitation was that with the passing of time, the

testimony of witnesses becomes weaker and weaker because of lapse of memory and evidence becomes more and more uncertain with the result

that the danger of error becomes greater. It is to prevent the parties from abusing the process of the Court by filing vexatious and frivolous

prosecutions long after the offence when there will be uncertainty of a fair trial, the provisions of limitation were introduced in the Code of Criminal

Procedure. However, care was taken to provide for extension of the period of limitation, when the commission of the offences was not known to

the person aggrieved by the offence or to any police officer. Similarly, provision is made for extension of time whenever the Court is satisfied that

the delay has been explained on the materials or that the accused has absconded. In the case of continuing offence, it is provided that a fresh

period of limitation shall begin to run at every moment of the time during which the offence continues. Thus, to a limited extent, the law of limitation

has been extended to proceedings under the Criminal Law, and that too only with reference to smaller offences punishable with imprisonment not

exceeding three years. There is no limitation for taking cognizance of any offence punishable with imprisonment exceeding three years.

A proceeding in contempt has been described to be quasi-criminal in nature. It has, however, been recognised that it is sui generis and it is

neither civil nor criminal. The power to punish for contempt is a necessary concomitant of a Court in order that Justice may not be obstructed and

the Majesty of law is not jeopardised by disrespect and contumacy. The exercise of power of a Court to punish a person for contempt is in no

way analogous or similar to enforcement of a private right by an individual or a legal person. Every civilised society as such has an abiding interest

and a vital stake in the orderly administration of justice. Unless justice is so administered, all rights and liberties will perish and the rule of law will

be displaced by jungle law. The Court has the duty of protecting the interest of the public in the due administration of justice and so it is entrusted

with the power to commit for contempt of Court and not in order to protect the dignity of the Court against any insult or injury. It is to protect and

vindicate the right of the public, that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with. As observed by

Frank furter, J., in Offutt v. U.S. (1954) 343 U.S. 11. ""It is a mode of vindicating the majesty of law, in its active manifestation against obstruction

and outrage."" According to Curtis-Raleigh, J., quoted in Jennison v. Baker (1972) 111 ER 997, 1006. ""The law should not be seen to sit by

limply, while those who defy it go free, nd those who seek its protection lose hope"". Courts may not be immortal, but they are permanent and will

have to exist so long as a civilised society exists. A system of administration of justice is a vital limb of a civilised society. Hence, the concept of

limitation is alien to the basic principles of law of contempt.

Court of Record: The above principles shall apply to a Court of record automatically whether they govern the other Courts or not. A ''Court of

Record'' is defined in Jowitt''s ""Dictionary of English Law"", (2nd Edition, page 493) in the following terms:

A Court of record is one whereof of the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has authority

to fine and imprison for contempt of its authority. Such were the superior courts of common law before their abolition, and such are the High Court

of Justice and Court of Appeal, and the county courts: many of the ancient inferior Courts are also courts of record.

After referring to the said definition. Madon, J., observed i Umaji Keshao Meshram and Others Vs. Radhikabai and Another, at age 454, that

unless otherwise provided, the power to punish for contempt is thus inherent in and possessed by every Court of Record and pointed out that it is

fallacious to think that the High Courts became courts of record for the first time on the commencement of the Constitution. Tracing the history

from the Charter dated September, 24. 1726, granted by George 1 upto the framing of the Constitution of India, the learned Judge concluded that

Article 215 of the Constitution of India did not bring any revolutionary change in the nature and character of the High Courts existing at the date of

the commencement of the Constitution but merely followed a well-established pattern and practice in drafting constitutional legislations.

Provisions in the Constitution of India and Contempt of Courts Acts.- While recognising the fundamental right to freedom of speech and

expression in all citizens, Article 19 of the Constitution of India provides in Cl.(2) that the same shall not affect the operation of any existing law, or

prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred in the interests of

the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation

to contempt of court, defamation or incitement to an offence. Art 129 of the Constitution of India declares that the Supreme Court shall be a Court

of Record and shall have all the powers of such a Court including the power to punish the contempt of itself. The corresponding provision with

reference to High Courts is found in Article 215 of the Constitution of India in identical language. Entry 77 in List I of the Seventh Schedule enables

the Parliament to make laws with respect to ""constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such

Court), and the fees taken therein; persons entitled to practise before the Supreme Court"". Entry 14 in List III of Seventh Schedule empowers the

Parliament and the State Legislatures to make laws with respect to ""Contempt of court, but not including contempt of the Supreme Court"".

Before the passing of the Constitution of India, the Contempt of Courts Act, 1926, was in force. The heading of the Act stated that ''the Act

was to define and limit the powers of certain Courts in punishing contempt of Courts''. The preamble read ""whereas doubts have arisen as to the

powers of a High Court of Judicature to punish contempt of Courts and whereas it is expedient to resolve these doubts and define and limit the

powers exercisable by High Courts and Chief Courts in punishing contempt of Courts..."" Section 2 of the Act was to the effect that the High Court

of Judicature established by Letters Patent shall have and exercise the same jurisdiction, powers and authority in accordance with the same

procedure and practice in respect of contempt of Courts subordinate to them as they had and exercised in respect of contempts of themselves.

Thus, the jurisdiction which existed in all Letters Patent High Courts previously to punish for contempts of themselves was recognised and

continued unaffected. The only limitation placed on the powers was on the quantum of punishment which they could inflict thereafter. It is not

necessary for the purpose of this case to trace the previous history of the Chartered High Courts. After the Constitution, the Parliament enacted the

Contempt of Courts Act (32 of 1952) repealing the Act of 1926. There was, however, no change in the jurisdiction of the High Courts with

reference to contempt. Section 3 of the Act was similar to Section 2 of the old Act and it assumed the existence of a right to punish for contempt in

every High Court and also the existence of a special practice and procedure. In 1971, the Contempt of Courts Act (70 of 1971) was passed by

the Parliament to define and limit the powers of certain Courts in punishing contempt of Courts and to regulate their procedure in relation thereto. It

was stated in the Statement of Objects and Reasons as follows:-

It is generally felt that the existing law relating to contempt of Courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish

for contempt touches upon two-important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of

expression. It was, therefore, considered advisable to have the entire law on the subject scrutinised by a special committee in pursuance of this, a

committee was set up in 1961 under the Chairmanship of the late Shri H.N. Sanyal, the then Additional Solicitor General. The Committee made a

comprehensive examination of the law and problems relating to(sic) contempt of Court in the light of the position obtaining in our own country and

various foreign countries. The recommendations which the Committee made took note of the importance given to freedom of speech in the

Constitution and of the need for safeguarding the status and dignity of Courts and interests of administration of justice.

Section 2 of the Act contains definitions of ''civil contempt'' and ''criminal contempt''. Section 10 is similar to Section 3 of the Act of 1952, and

reads as follows:

Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in

respect of contempts of courts subordinate to it as it has and exercises in respect of itself:

Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where

such contempt is an offence punishable under the Indian Penal Code,

Section 11 of the Act relates to the jurisdiction of Court to inquire into or try a contempt of itself or a Court subordinate to it, whether the

contempt is alleged to have been committed within or outside its local limit of jurisdiction and whether the person alleged to be guilty of contempt is

within or outside such limits. Section 12 of the Act prescribes the punishment for contempt of Court. Section 17 of the Act prescribes the

procedure for proceeding u/s 15 of the Act relating to criminal contempt. Section 19 of the Act provides for appeals against any order or decision

of High Court in the exercise of its jurisdiction to punish for contempts. Section 20 of the Act, which is relied on by learned Counsel for the

Respondent, is in the following terms:

No court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date

on which the contempt is alleged to have been committed.

S.22 of the Act is a very important provision and it reads thus:

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts.

APPLICABILITY OF SECTION 20 TO CONTEMPT OF HIGH COURT

Time and again it has been laid down by the Supreme Court that the jurisdiction of the High Courts in matters of contempt of themselves, as

distinct from those of subordinate Courts as it existed prior to the Constitution has been recognised and continued by the Constitution under Article

215 and that the powers have been widened by he Contempt of Courts Act passed by Parliament.

In Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, Bose, J. ruled thus:

la any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate court, the Constitution vests these rights in

every High Court, so no Act of legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. It is true Section 5

expands the ambit of the authority beyond what was till then considered to be possible but it does not confer a new jurisdiction.t(sic) merely

widens the scope of an existing jurisdiction of a very special kind.

In Mohd. Ikram Hussain Vs. State of U.P. and Others, Hidayatullah, J observed as follows:

. . . In so far as the offence of contempt is concerned there was a manifest disobedience of the order and the High Court could punish it brevi manu

by ordering the Appellant to be detained in prison. The High Court''s powers for punishment of contempt have been preserved by the Constitution

and they are also inherent in a Court of Record. The learned Judges were perhaps in error in describing it as contempt in facie curiae. That is

contempt of a different sort. This was contempt by disobedience of an order of the High Court which is sometimes a civil contempt punishable

under the Code of CPC and sometimes a criminal con-tempt punishable by imprisonment. The only curbs on the powers of the High Court to

punish for contempt of itself are contained in the Con-tempt of Courts Act which limits the term for which a person can be imprisoned to six

months simple imprisonment ...

In R.L. Kapur Vs. State of Madras, the question is whether the power of the High Court to punish contempt of itself arose under the

Contempt of Courts Act, 1952, so that u/s 25 of the General Clauses Act 1897, Ss.63 to 70 of the Penal Code and the relevant provisions of the

Code of Criminal Procedure would apply, was considered in detail. The question was answered in the following terms:

. . . The answer to such a question is furnished by Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1952

themselves. Article 215 declares that every High Court shall be a court of record and shall have all powers of such a court including the power to

punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a court of

record, or whether the Article confers the power as inherent in a court of record, the jurisdiction is a special one, not arising or derived from the

Contempt of Courts Act. 1952, and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure. Such a position

is also clear from the provisions of the Contempt of Courts Act, 1952. Section 3 of that Act provides that every High Court shall have and

exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempt of courts

subordinate to it as it has and exercises in respect of contempts of itself. The only limitation to the power is, as provided by sub-S.(2), that it shall

not take cognizance of a contempt committed in respect of a court subordinate to it where such contempt is an offence punishable under the Penal

Code. As explained in Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, Section 3 of the Act is similar to Section

2 of the 1926 Act, and ""far from conferring a new jurisdiction, assumes, as did the Old Act, the existence of a right to punish for contempt in every

High Court and further assumes the existence of a special practice and procedure, for it says that every High Court shall exercise the same

jurisdiction, powers and authority ""in accordance with the same procedure and practice. . . ."" In any case, so far as contempt of the High Court

itself is concerned, as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court, and so no Act of a

legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. No doubt, Section 5 of the Act states that a High

Court shall have jurisdiction to inquire into and try a contempt of itself or of a court subordinate to it whether the alleged contempt is committed

within or outside the local limits of its jurisdiction and whether the contemner is within or outside such limits. The effect of Section 5 is only to widen

the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. It is true that u/s 4 of the Act the maximum sentence

and fine which can be imposed is respectively imprisonment for six months and a fine of Rs. 2000, or both. But that again is a restriction on an

existing jurisdiction and not conferment of a new jurisdiction. That being the position, Section 25 in the General Clauses Act, 1897 cannot apply.

The result is that s.70 of the Penal Code is no impediment by way of limitation in the way of the recovery of the fine.

It is seen from the judgment that a distinction is maintained between the power of the High Court to punish for contempt of itself and contempt

of a subordinate Court. The period of limitation prescribed u/s 70 of the Indian Penal Code has been held to be inapplicable to a proceeding in

contempt.

A Division Bench of this Court had occasion to consider the question whether the High Court is entitled to initiate proceedings in contempt suo

motu for the disobedience of an order directing the production of certain documents in Court within a particular time in Yegnanarayaniah, In re

1974 L.W. (Cri.) 228 : (1974) 1 Mh.L.J. 155. While answering the question in the affirmative, the Bench observed as follows:

We are unable to accept these contentions. Article 215 of the Constitution says that every High Court shall be a Court of record and shall have

all the powers of such a Court including the power to punish for contempt of itself. This is only in recognition of the inherent powers of the High

Court as a Court of record to punish for contempt of itself. No limitation has been imposed in this Article that in cases of civil contempts the Court

cannot take action suo motu. it is easy to conceive of a case where no party may care to come forward to move the Court for initiating

proceedings for contempt, but where the Court may consider it necessary and expedient to initiate action suo motu. It is obviously necessary in

such cases that the Court should have such a power.

The Bench referred to the decision of the Supreme Court in Sukhdev Singh''s case AIR 1954 S.C. 186 and observed that the discussion in that

case did not in any way turn on the question whether the contempt was a civil contempt or a criminal contempt. The Bench held that Section 10 of

the Contempt of Courts Act, 1971, maintained the same position which prevailed earlier. Ultimately it was held that this Court has jurisdiction to

initiate contempt proceedings suo motu even in a civil contempt as defined in Section 2 of Act 70 of 1971, that no particular form of procedure is

necessary so long as the proceedings are initiated giving an opportunity to the contemner to defend himself and that Article 21 of the Constitution is

not in any way violated thereby.

I am not only bound by the decision of the Bench, but also entirely in agreement with the ratio thereof. Learned Counsel for the Respondent

places reliance on the decision in Janardan Prasad Gupta Vs. O.P. Chakarvarty and Another, wherein a Division Bench of the Allahabad High

Court upheld the validity of Section 15 of the Contempt of Courts Act, 1971. In that case, a preliminary objection as to the maintainability of a

petition by an individual against the Additional Director of Medical and Health Services and Drags Controller, Uttar Pradesh and the Assistant

Drugs Controller, Uttar Pradesh alleging that they had committed criminal contempt of Court under Sub-clauses (i), (ii) and (iii) of Clause (c) of

Section 2 of the Contempt of Courts Act, was upheld as the Petitioner therein had not obtained the consent of the Advocate General in writing as

required by Section 15 of the Act. That decision has no bearing on the present case.

In N. Venkataramanappa v. D.K. Naikar and another AIR 1978 Kar 57cited by learned Counsel for the Respondent, the Karnataka High

Court applied the provisions of Section 20 of the Contempt of Courts Act to a proceeding in contempt of itself. The question whether Section 20

of the Contempt of Courts Act would apply to such a proceeding in view of the terms of Article 215 of the Constitution of India was not raised or

considered.

In Central Bank of India v. Current Transport Finance (P) Ltd ILR 1978 Del 233. Avadh Behari Rohatgi, J. held that Section 20 of the

Contempt f Courts Act is not applicable to a proceeding under Article 215 of the Constitution of India or to cases under Order XXXIX, Code of

Civil Procedure. The learned Judge observed as follows:

The question of limitation can be viewed from three angles. Kuldip Singh is in contempt of court''s order dated 9th October, 1973. In the first

place it is a contempt under the Act. u/s 2(b) Civil contempt means . . .

wilful breach of an undertaking given to a court.

-S.20 will apply to it.

Secondly, the breach of the undertaking can be said to be under the provisions of 0.39 R.2(3) of the Code of Civil Procedure. Instead of making

an order for attachment the court granted an ad interim injunction on 17th July, 1972. It was in terms of order that the undertaking was given. This

is a case of disobedience and breach of the terms of the undertaking.

Thirdly, under Article 215 of the Constitution this Court being a court of record has ""the power to punish for its contempt"". Neither under 0.39 of

the Code nor under Article 215 of the Constitution has any limitation been prescribed. The powers to punish under the Code and the Constitution

are in addition to and not in derogation of the provisions of the Act (S.20).

In a latter part of the judgment, it was observed that the power of the Courts of Record to punish contempt brevi manu and of inferior courts

to punish cases of contempt in facia curiae are parts of the same thing.

In Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, the Supreme Court had to decide the question of maintainability of an

appeal u/s 19 of the Act against the order of the High Court issuing notice to the Appellant to show cause why he should not be proceeded against

for committing contempt of the High Court. The Supreme Court held that an appeal shall lie only if the order was made in the exercise of its

jurisdiction to punish for contempt and not against an order which did not affect the right of the party aggrieved in any manner. It was held that

mere initiation of a proceeding for contempt by the issuance of a notice on the prima facie view that the case is a fit one for drawing up the

proceeding, did not decide any question. One of the arguments advanced before the Supreme Court was that initiation of a proceeding by the High

Court will be without jurisdiction if it is in violation of Section 20 of the Act. Dealing with that argument, the Supreme Court observed as follows:

. . . If the alleged contemner in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being

barred u/s 20 of the Act but the High Court holds that the proceeding is not barred, it may well be that an appeal would lie to this Court u/s 19

from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard

to such an order, but we merely mention this type of order by way of an example to show that even orders made a some intermediate stage in the

proceeding may be appealable u/s 19 . . .

It is contended that the Supreme Court recognised the applicability of Section 20 of the Contempt of Courts Act to the proceeding relating to a

contempt of the High Court itself. This argument is wholly fallacious. It is not possible to draw any such inference from the observations made by

the Supreme Court. The Judges had taken care to state expressly that they were not called upon to express their final opinion in regard to such an

order.

In Jose v. Alice Francis 1979 K.L.T. 262 a Division Bench of the Kerala High Court held that Section 15 of the Contempt of Courts Act does

not restrict the power of the High Court in any manner. It was held that the suo motu power of the High Court u/s 15(1) of the Act extends to

contempt of courts subordinate to it also and that the powers of the High Court as a Court of Record recognised by the Constitution cannot be

taken away by Section 15(2) of the Act.

A Division Bench of the Gujarat High Court opined in Dineshbhai A. Parikh Vs. Kripalu Co-operative Housing Society, Nagarvel,

Ahmedabad and Others, that Section 20 of the Contempt of Courts Act, 1971, provides not a period of limitation as it is ordinarily understood,

but a condition precedent to the exercise of Court''s power under that Act. It was held that Section 5 of the Limitation Act was not attracted to

proceedings under the Contempt of Courts Act. That was not a case of a contempt of the High Court. The proceeding related to a contempt of a

subordinate Tribunal. If the provision in Section 20 of the Contempt of Courts Act is a condition precedent and not a period of limitation, a fortiori

it cannot apply to cases of contempts of the High Courts under Article 215 of the Constitution of India. It is not necessary for me to discuss the

reasoning of the Bench in that case for the present purpose, as it is not a case relating to a contempt of the High Court. However, I will advert to

that case later, with respect to another aspect of the matter.

A Division Bench of the Andhra Pradesh High Court had occasion to consider the power of the Parliament vis-a-vis Article 215 of the Mohd.

Osman Shaheed Vs. Mohd. Baqur Hussain Shaa and Others, and observed thus:

. . . The power to punish contempts is conferred on this Court by reason of Article 215. This power being directly in the gift of the Constitution

cannot be taken away or abrogated or whittled down by any Act of the Parliament. For the power of the Parliament to make laws is subject to the

provisions of the Constitution. For its limitation we must look to Article 215 of the Constitution only and in Article 215 we find none. It does not

stand to reason to argue that what the Parliament cannot abridge a contemner can render negatory. . .

In S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow Vs. Vinay Chandra Misra, he power of the High Court to take suo motu

cognisance of contempt of subordinate/inferior Court was upheld. In the course of discussion, reference was made to Article 129 and 215 of the

Constitution of India and it was observed that the two Articles do not define as to what constitute contempt of Court. It was further observed that

the Parliament has, by virtue of the entries in List I and List III of Seventh Schedule power to define the limits of the Courts in punishing contempt

of Court and to regulate their procedure thereto. Advantage is sought to be taken of the said observation and contend that Section 20 of Contempt

of Courts Act regulates the powers of the High Court to punish for contempt of itself. There is no substance in the said argument as the question

before the Supreme Court related only to the power of the High Court to take suo motu proceedings for contempt of a subordinate Court.

In State of U.P. Vs. Radhey Shyam Tripathi and Another, a Division Bench of the Allahabad High Court traced the historical background of

the jurisdiction in the matter of contempt of Court and upheld the power of the Court to initiate proceedings suo motu without an affidavit from the

informant. It was also held that the Code of Criminal Procedure would not apply to a proceeding under the Contempt of Courts Act.

The latest pronouncement on this subject is that of Jagannadha Rao, J. of the Andhra Pradesh High Court in Advocate General A.P., v. A.V.

Koteswara Rao 1984 Cri.L.J. 1171 on which strong reliance is placed by learned Counsel for the Respondent. In fact, learned Counsel submitted

that the reasoning in the judgment could be treated as part of his argument. After referring to almost all the earlier cases referred to by me herein,

the learned Judge held that Section 20 of the Contempt of Courts Act will apply to cases initiated by the High Court for contempt of itself as well

as to cases of contempt of the subordinate Courts. According to the learned Judge, no distinction can be made between the two types of cases.

The learned Judge held that the power of the High Court to punish for contempt of itself can be regulated, though it cannot be abrogated, and the

Constitution having empowered the Legislature to pass laws, the procedural restrictions contained in the Contempt of Courts Act are not ultra vires

Article 215 of the Constitution of India. According to the learned Judge, limitation being a procedural law, Section 20 of the Contempt of Courts

Act is only a regulatory provision. With respect I do not agree with the reasoning of the learned Judge. In the first place, the learned Judge has

omitted to consider the ruling of a Division Bench of the same Court in Mohd. Osman Shaheed Vs. Mohd. Baqur Hussain Shaa and Others, to

which I have already made a reference. Secondly, it has to be pointed out that the learned Judge has drawn inferences from some of the decisions

of the Supreme Court. For example, after referring to the judgment of the Supreme Court in Baradakanta Mishra Vs. Justice Gatikrushna Misra,

Chief Justice of the Orissa High Court, which referred to the provisions of Section 20 of the Contempt of Courts Act, while considering the

maintainability of an appeal u/s 19, the learned Judge observed as follows:

The fact that the Supreme Court thought fit to refer to Section 20 in the above case, even though the question of limitation did not arise, cannot

however be ignored. I am of the view that, when the case related to contempt of the High Court, he Supreme Court would not have referred to

Section 20 unless it was applicable to cases of contempts of the High Court also.

Similarly, referring to the observations in Purshotam Dass Goel Vs. Hon''ble Mr. B.S. Dhillon and Others, , the learned Judge observed:

In this ruling, their Lordships of the Supreme Court have expressly referred to Section 20 in connection with the powers of the High Court under

Art 215 for punishing for contempt of itself. If Section 20 was not applicable to a Court of Record, their Lordships would not have referred to that

section in the above case. I cannot ignore the above observations of the Supreme Court.

Similarly, the learned Judge has chosen to draw inferences from the observations made in S.K. Sarkar, Member, Board of Revenue, U.P.,

Lucknow Vs. Vinay Chandra Misra, and Mohd. Ikram Hussain Vs. State of U.P. and Others, . The learned Judge has entirely overlooked that a

case is an authority only for what it actually decides and not for what may logically follow from it Every judgment must be read as applicable to the

particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be

expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. (vide

Sreenivasa General Traders and Others Vs. State of Andhra Pradesh and Others, . The Supreme Court has stated the law thus in Deena alias

Deen Dayal and Others Vs. Union of India (UOI) and Others,

Any case, even locus classical, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical

situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of

the decision which is cited as a precedent. Human mind trained even in the strict discipline of law, is not averse to taking the easy course of relying

on decisions which have become famous and applying their ratio to supposedly identical situations . . .

The learned Judge of the Andhra Pradesh High Court is also not right in proceeding on the basis that the law of limitation is entirely procedural.

The Law of Limitation is partly substantive and partly procedural. I have already stated that basically, the principle of limitation has no place in the

law of contempt. If by a provision of limitation in the Contempt of Courts Act the High Court is prevented from exercising its power recognised

and acknowledged in Article 215 of the Constitution of India, it cannot be said to be merely regulatory. It is certainly an abrogation of the power.

In my view, the learned Judge is also not right in his interpretation of Section 22of the Contempt of Courts Act. The plain meaning of the Section

22 is that the inherent power of the High Court to punish for contempt of itself remains untouched. To say that Section 20 of the Act does not

abrogate the power under Article 215 of the Constitution of India, either wholly or partially and that the powers can be exercised in all their

amplitude within the period of one year specified in the Section is really a contradiction in terms and an incongruity in itself. It should not be

forgotten that the law of contempt is for the purpose of preserving the purity and efficacy of the judicial process and no man should be allowed to

snap his fingers at the system of justice by cleverly keeping out of its reach tor a particular period of time. It should be realised by one and all in the

society that no one who interferes or obstructs the due process of law and administration of justice is beyond the reach of the contempt power of

the High Court irrespective of the passage of time. There may be difficulty in proving the facts. The Court will have to be careful and cautious in

appreciating the evidence. If, however, it is established to the satisfaction of the Court that a person is guilty of contempt, the parly cannot be

allowed to get away with impunity. The arm of the law is long and strong enough to reach him. Hence, I hold that Section 20 of the Contempt of

Courts Act is not applicable to cases of contempts of the High Court which are governed by Article 215 of the Constitution of India.

Assuming that Section 20 of the Contempt of Courts Act applies, is this proceeding barred thereby? The Supreme Court has in Baradakanta

Mishra Vs. Justice Gatikrushna Misra, Chief Justice of the Orissa High Court, ruled that the exercise of the jurisdiction to punish for contempt

commences with the initiation of proceeding for whether suo motu or on a motion or a reference and that is why the terminus a quo for the period

of limitation provided in Section 20 is the date when a proceeding for contempt is initiated by the Court. There is no difficulty in accepting the

argument of learned Counsel for the Respondent that the initiation of proceeding for contempt in the present case was on 30.9.1988 and not on

30.6.1988 when the application was presented in Court by the applicant as contended by learned Counsel for the applicant. I do not, however,

accept the further contention of learned Counsel for the Respondent that the period of one year specified in the section came to an end on

30.7.1988, i.e., at the expiry of one year from 31.7.1987 which was the date before which the Respondent agreed to deliver possession to the

applicant. The relevant portion of the section reads "". . . after the expiry of a period of one year from the date on which contempt is alleged to have

been committed"". Admittedly, the Respondent did not deliver possession till 20.11.1988. On the day when this Court initiated the proceedings for

contempt, the Respondent was in possession, thus committing breach of the undertaking given by him. According to the learned Counsel, the act of

contempt was complete at the end of the 31st July, 1987 and there is no such thing as continuing breach in law. Learned Counsel placed reliance

on the following observations of a Division Bench of the Gujarat High Court inDinesh-bhai v. Kripalu Co-operative Housing Society, Nagarvel,

Ahmedabad and others AIR 1280 Guj. 194.

It has also been argued by Mr. Raval in that behalf that once contempt is committed, unless it is purged, it continues to be committed every day

and every moment and that, therefore, an action can be taken against the contemner at any time. We cannot accede to this contention because

Section 20 in terms places an absolute fetter on the power of the court to initiate proceedings for contempt after the expiry of a period of one year

from the day on which contempt is alleged to have been committed. If we accede to the argument which Mr. Raval has raised, Section 20 would

be redundant because every act of contempt will ordinarily mean recurring contempt from day to day and from moment to moment until it is purged

by an order of the court. We are, therefore, unable to accede to the argument which Mr. Raval has raised, because by doing so, we cannot

deprive the legislative enactment of its force and substance.

There is a fallacy in the submission made by learned Counsel. The observations of the Division Bench in that case have to be understood in the

context of the facts of the case. The Petitioner before that Court was admitted to the membership of the Respondent society in July 1973, which

had been constructing residential flats. In 1977, the society passed a resolution expelling the Petitioner from its membership and he challenged the

same before the Board of Nominees constituted under the Gujarat Cooperative Societies Act. On 26th May, 1978, the Board of Nominees issued

an ad interim injunction restraining the other members of the society from taking possession of the flats under construction and restraining the

society from handing over possession of those flats to the other members. The Board of Nominees also stayed the implementation of the resolution

which was challenged before it. The Petitioner alleged that the other members of the society took possession of the flats in violation of the interim

injunction, completed the construction and occupied them. The Board of Nominees heard both parties on 5lh May. 1979, and vacated the ad

interim injunction. That order was challenged in revision before the Gujarat Co-operative Tribunal. In that revision, no ad interim injunction was

given. After hearing both sides, the Tribunal allowed the revision application and granted ad interim injunction. The Petitioner alleged that during the

period in which the ad interim injunction issued by the Board of Nominees was in operation, the Respondents committed a wilful breach thereof.

An objection was raised as to the jurisdiction of the Court to take action under the Contempt of Courts Act in view of the provisions of Section 20

of the Act. While considering the same, the Bench pointed out that the ad interim injunction issued by the Board of Nominees had been in force

from 26.5.1978 to 5.5.1979, when it was vacated. The petition for contempt was filed on 20.11.1979 and notice was issued by the Court on

23.11.1979. The Bench held that unless the Respondents had committed wilful breach of the ad interim injunction issued by the Board of

Nominees between 20.11.1978 and 5.5.1979, no action could be taken against them. The Bench calculated the one year period prior to the date

of filing of the petition. The Petitioner had not stated in the petition for contempt as to when exactly the breach of the injunction was committed.

The Bench held that it was quite probable that the breach might have been committed between 26.5.1978 and 20.11.1978 and if that was so, it

fell outside the period of one year mentioned in Section 20 of the Act. The injunction in that case issued by the Board of Nominees was only with

reference to handing over possession of the flats by the society to the other members and taking possession of the flats by the other members.

Hence the act of contempt was complete when the other members took possession of the flats from the society. That could have happened only on

specified dates. There was no question of the society or the members thereof committing contempt subsequently, when the members continued in

possession. It was only in that context the Division Bench refused to accept the argument that once contempt is committed, it continues to be so

every day and every moment unless it is purged. The facts of the present case are entirely different.

Here, the Respondent undertook to deliver possession on or before a particular date and so long as he had not fulfilled the undertaking, he

continues to be committing breach thereof, every moment and every day, till he hands over possession. It is not like scandalizing a Court by means

of a publication. The act of contempt is complete in such a case as soon as the publication is made. In a case of trespass of a land, it continues to

be so until the trespasser becomes the owner thereof by virtue of the law of limitation. The Limitation Act prescribes a period of 12 years for

instituting a suit for possession from the date of dispossession when the suit is based on previous possession and not on title and from the date

when the possession of the Defendant became adverse when the suit is based on title. Section 27 of the Limitation Act provides for extinguishment

of the title of such property at the determination of the period limited for instituting a suit for possession. While in all other cases, the Law of

limitation bars only the remedy and does not extinguish the right, the only exception is found in Section 27 of the Limitation Act.

Just as Section 472 of the Code of Criminal Procedure provides for a continuing offence, Section 22 of the Limitation Act, 1963, provides for

continuing breach of contracts and continuing torts. In Kuchibotha Kanakamma and Anr. v. Thadepalli Ranga Rao and others AIR 1957 A.P.

419, Viswanatha Sastri, J. has considered the entire case law relating to continuing wrongs and laid down the relevant criteria for ascertaining

whether a particular wrong is a continuing one or not. The learned Judge observed:

If A tortiously causes bodily injury to B, he wrong is complete the moment the injury is done, though the effect of the injury might last during the

life-time of B. This is plainly not a case of a continuing wrong. The distinction between an injury which itself continues and an injury whose effect

alone continues is often found to be a subtle refinement. In Brojendra Kishore Roy v. Bharat Chandra Roy 20 Cal. W.N. 481 : AIR 1916 Guj.

751, Mookerjee, J. pointed out that the essence of a continuing wrong is that"" ""the act complained of creates a continuing source of injury and is of

such a nature as to render the doer of it responsible for the continuance.

In such cases a fresh cause of action arises de die in diem. To put the matter in another way where the wrongful act produces a state of affairs,

every moment''s continuance of which is a new tort, a fresh cause of action for the continuance lies, for there is a real distinction between

continuance of a legal injury and of the injurious effects of a legal injury. In other words, the continuance of the effects of a wrong is not the same

thing as a continuing wrong. Where the Plaintiff has the right to take water through a channel running through the Defendant''s land, an obstruction

to the flow of water or unauthorised diversion of the water by the Defendant through a pipe is, according to the decision of the Judicial Committee,

a continuing wrong to which Section 24 of the Limitation Act of 1971 corresponding to Section 23 of the Act of 1908 would apply.

. . . The Defendant who by his wrongful act has brought a state of affairs the continuance of which every moment is a new tort and who, though, in

a position to terminate it at his will, causes the state of affairs to continue, commits a continuing wrong within the meaning of Section 23 of the

Limitation Act. The continuance of a state of affairs originally brought about by the defence might well be continuing wrong. Explaining the words

''continuance of injury or damage"" Buckley, J. observed:

The words do not mean or refer to damages inflicted once and for all which continues unrepaired but to a ''new damage recurring day by day In

respect of an act done. It may be once and for all at some prior time'' (italics are mine here in '' '')(sic) or repeated, it may be, from day to day.

Harrington v. Corporation of Derby. L.R. (1905) 1 Ch. 205(P).

Learned Counsel for the Respondent sought to support his proposition by referring to the judgment of Ramamurti, J. in Rajagopala Naidu v.

Ayyaswamy Chettiar and Ors. 78 L.W. 658 : AIR 1965 Mad 532 in which it was held that on the facts of the case it was a simple case of a

breach of contract to which Article 115 of the Limitation Act would apply. In that case, the Plaintiff agreed to surrender his right as lessee over a

premises and in consideration thereof, an agreement was entered into between the first and second Defendants to the effect that for a period of 15

days at the time of Deepavali each year, the Plaintiff would be permitted to occupy the ground floor portion in the premises to sell crackers. The

agreement was dated 29.12.1952. On 17.10.1953, the Plaintiff issued a notice to both the Defendants asking for possession of the premises for a

period of 15 days as per the agreement. The claim was repudiated by the Defendants on 26.10.1953. The Plaintiff sold the entire stock on

12.11.1983 and later filed a suit for enforcing his rights under the agreement. It was claimed that he had sustained damage to the tune of Rs.

5200/-. After failing in both the Courts below, the Plaintiff preferred a second appeal in this Court. It was contended that Article 115 of the

Limitation Act would not apply to the case and that it would be governed by S.23 or 24 of the Limitation Act of 1908. That contention was

rejected by the learned Judge by pointing out that the Plaintiff had admitted in the plaint that he should be put in possession for a period of 15 days

prior to Deepavali and so, the breach committed by the Defendants had occurred on 6.11.1953 at the latest. While dismissing the appeal, the

learned Judge made the following observations on which reliance is placed by learned Counsel for the Respondent:

I am of the opinion that those decisions are not relevant to the instant case and that the observations contained therein should not be divorced from

their context and understood as authority for the position that in every case of a breach of contract, Limitation would commence to run not on the

date of the breach, but only from the date when the party aggrieved was in a position to fix or quantify his damages. Entirely different

considerations would apply to a claim for indemnity. This is a simple case of a breach of contract, the breach consisting in the Plaintiff not being

allowed to enjoy his promised right of a licence for a period of 15 days. Breach is complete when the time for putting the Plaintiff in possession of

the property had expired on 6.11.1953, the date of Deepavali. The fact that the Plaintiff could not file a suit that very day and that some time may

have to lapse for him to determine the quantum of damages does not mean that limitation does not commence to run from the date of the breach.

The above observations have no bearing whatever in the present case as the question before the learned Judge was entirely different from the one

that is being considered here.

In Central Bank of India v. Current Transport Finance (P) Ltd. ILR (1978) Del 233, to which I have already made a reference Avadh Behari

Rohatgi, J., observed as follows:-

... Even to-day Kuldip Singh is in contempt as he continues to be in breach of the undertaking. (Underlining mine). Wilfully and contumaciously he

has refused to hand over the vehicles. He refuses to abide by the undertaking. This is a case of breach of the undertaking.

The above passage shows that the concept of continuing contempt is well recognized Hence, this proceeding is not barred by the provisions of

Section 20 of the Contempt of Courts Act.

Abuse of Process of Court:- Sri. V.P. Raman, senior counsel, who appeared for the Respondent at one stage contended that invoking a

judicial process will not amount to contempt and at any rate, the Respondent cannot be said to have wilfully disobeyed the order of this Court after

the III Assistant Judge, City Civil Court, Madras, passed an order of injunction in I.A. No. 12194 of 1987 in O.S. No. 5448 of 1987 on his file.

There is no substance in this argument. Even resorting to the City Civil Court in this case is itself an abuse of process of Court. The lawyer, who

appeared for the Respondent in the City Civil Court, Madras and the Judge who granted injunction may be guilty of contempt of this Court as they

have aided the Respondent in disobeying the order of this Court. A similar situation arose in Lajuklata Vs. Nrishingha Prosad, In that case, in a

proceeding against an order for delivery of possession, the Respondent was allowed to remain on the premises till a particular date on his giving an

undertaking that he would vacate the premises by that time. Without fulfilling the undertaking, the Respondent made an application to the Small

Cause Court for an order that a notice may be issued on the landlord to show cause why execution of the decree passed in the suit for possession

should not be stayed till the disposal of a suit which he intended to file in the High Court. Condemning the action of the Respondent, the Division

Bench observed as follows:

On the facts I have already stated, there can be no question that the opposite party has been guilty of contempt of this Court and the contempt has

been of a flagrant character. Not only did he fail to carry out the undertaking which he had given to this Court, both personally and through his

Advocate, but he also resorted to the means of trying to secure an order from a subordinate court which he thought, would enable him to ignore

the undertaking given to this Court with impunity. As I have already stated, only when the pressure of this Rule was brought to bear upon him, he

did ultimately quit the premises.

It is seen from the records that the order of injunction passed by the City Civil Court, Madras, restrained the Petitioner herein from interfering

with the possession of the Respondent. That did not absolve the Respondent from complying with the undertaking given by him to deliver

possession of the property to the Petitioner. Hence, it cannot be contended that after the passing of the order of injunction by the City Civil Court,

the breach of the undertaking ceased to be wilful and that contempt came to an end at that time. InHestons Transport (St. Helens) Ltd. v.

Transport and General Workers Union (1972)3 All. ER 101, the House of Lords held that to establish wilful disobedience, it was not necessary to

show that it was contumacious in the sense that there was a deliberate disobedience of the order and it was sufficient to show that disobedience

was not casual or accidental and unintentional. Bramwell, L.J , defined it in Lewis v. Great Western Rly., Co. (1877)3 Q.B Div. 195 thus: ""Wilful

misconduct"" means misconduct to which the will is a party, something opposed to accident or negligence.

In ThomeRural District Council v. Bunting and Anr. (1972) 3 All. ER. 657, Goulding, J., of Chancery Division held that ""the Court had

jurisdiction to commit for contempt a person, who, although he had not himself given any undertaking to the Court, aided and abetted a Defendant

in committing a breach of an undertaking which the Defendant had given"".

In The Advocate General, Advocate-general, State of Bihar Vs. Madhya Pradesh Khair Industries and Another, , the Supreme Court held

that an abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice is a

Contempt of Court and that it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the Judicial

process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of

justice. There can be no doubt that the breach of undertaking on the part of the Respondent is deliberate and intentional and by no stretch of

imagination it can be said to be accidental. He has aggravated the offence by abusing the process of Court in approaching a subordinate Court for

an injunction preventing the Petitioner from executing the order of this Court.

DANGEROUS TREND

It is a matter of grave concern that of late respect for law and Court is dwindling. Cases of disobedience of orders of Court are in the increase

in geometric progression, The following statistics will give an idea as to the same:

Year Contempt Applications

filed.

1978 30

1979 1980 66 67

1981 108

1982 140

1983 192

1984 248

1985 294

1986 309

1987 365

1988 (upto 447

20-12-88).

The Supreme Court took note of the present trend in Balram Singh Vs. Bhikam Chand Jain and Others, and remarked as follows:

We must take serious view of the conduct of the contemners in committing a breach of the undertaking in view of the growing tendency to trifle

with the Court''s orders based on undertakings with impunity. ...

It was held in that case that it would be a travesty of justice if the Court were to allow such gross contempt of Court to go unpunished, without an

adequate sentence.

CONCLUSION

In the result, I hold that the Respondent is guilty of contempt in flouting the undertaking given by him to this Court in C.R.P. No. 3948 of 1985.

The fact that he has delivered possession on 20.12.1988 after the initiation of the contempt proceedings, does not save him from the consequences

thereof, as laid down by the Supreme Court in Chhaganbhai Norsinbhai Vs. Soni Chandubhai Gordhanbhai and Others, . The dilatory tactics

adopted by him even after the service of notice in this proceeding had only added fuel to the fire. There has also been no expression of regret at

any stage on the part of the Respondent. The Respondent deserves to be punished for contempt.

Mr. S. Govind Swaminathan, learned Counsel for the respondent wanted to argue separately on the question of sentence and the matter was

posted today for such arguments. He submitted that this is not one of the usual cases of contempt and there were several doubts on questions of

law which had to be cleared by my judgment. Accepting his arguments I think this is not a case in which the Respondent should be punished with

imprisonment. The Respondent is sentenced to pay a fine of Rs. 1,500 within a week from this date into this Court. In case of default, the

Respondent shall undergo simple imprisonment for a period of two weeks.