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Jamnadas Bhaichand Shah and ors. Vs. Bhavnaben Nanubhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ165; (1982)1GLR285
AppellantJamnadas Bhaichand Shah and ors.
RespondentBhavnaben Nanubhai and anr.
Excerpt:
.....to be accepted, though we hasten to add that we are fully satisfied that these respondents by giving solemn declaration practised fraud on this court by persuading it to believe that they would abide by certain conditions and, therefore, the court should extend the time of vacating the premises up to 2-4-1982. this, however, would fall far short of amounting to civil contempt. we are sorry to note that such irresponsible behaviour of people like this might even smother the court's sympathies in future......it appears that no amount was paid and the present petitioners proceeded to execute the decree for possession. when the petitioners went for execution, they found obstruction raised by one hirabhai rabari posing as the representative of maninagar gymkhana pvt. ltd. the petitioners, therefore, felt that the undertaking given to this court that bhavnaben alone was in possession was thus flagrantly breached and the respondents had committed contempt of court.5. we had issued rule to these respondents and on 29-7-1981, they have filed their joint reply under their signatures, wherein they have inter alia 6tated that some part of the suit property 'is' in possession of maninagar gymkhana pvt. ltd. since 1-8-1979. they further alleged that this fact was known to the petitioners.....
Judgment:

N.H. Bhatt, J.

1. By this application, three applicants, the decree-holders of a decree in H. R. P. Suit No. 202 of 1979 of the Court of Small Causes, Ahmedabad passed against the respondent No. 1 Bhavnaben for the recovery of the premises, pray that in the interest of justice, respondent No. 1 Bhavnaben and her husband Nanubhai Mohanlal Banker, respondent No. 2 herein, be suitably dealt with under the provisions of the Contempt of Courts Act, 1971, in so far as they had failed to abide by the court's order dated 2-4-1981 and the undertaking filed by them in that regard.

2. A few facts require to be stated. After the decree had come to be passed, execution was attempted to be effected. At that stage, present respondent No. 2 Nanubhai, husband of Bhavnaben, obstructed the execution on the ground that he was the tenant of the suit premises and not his wife Bhavnaben. The matter ultimately came to this High Court in Civil Revision Application No. 425 of 1981 filed by respondent No. 2 Nanubhai, the executing court not having upheld his alleged ground of obstruction. Incidentally, the matter had come up before me sitting as the single Judge on 2-4-1981. I had rejected that application. At that time, both these respondents, prayed for time to vacate and so I had passed the following order:

Removal of obstruction not to be effected or decree not to be executed for one year if and only if all the arrears of mesne profits due till 31-3-1981 are deposited with the trial court by Bhavnaben within a fortnight from today and further if the mesne profits are deposited with the trial court every month regularly by 7th of the succeeding month and both Bhavnaben and the applicant (Nanubhai) file undertaking by tomorrow that Bhavnaben alone is in possession.

Pursuant to the oral assurance given to this Court on 2-4-1981, which persuaded this Court to grant time for vacating the premises, on 3-4-1981 both these respondents filed the undertaking as follows :-

That Shrimati Bhavnaben Nanubhai Banker is the only person who is in possession of the suit premises.

3. Then the matter was again brought to this Court on 24-4-1981 because the amount that was ordered to be deposited within 15 days from 2-4-1981 was not deposited despite extension of time by me up to 21-4-1981 for making the payment of the amount of mesne profits. On that day, that is, on 24-4-1981, t had passed an amplificatory order, which inter alia mentions as follows:-

The petitioner's wife Smt, Bhavnaben shall file an undertaking within a week regarding the delivery of peaceful and vacant possession of the suit premises, as per the time granted by this High Court, as per its order dated 2-4-1981 in C. R. A. No. 425 of 1981.

There was further extension of time granted by me on 5-5-1981 to the following effect:-

Time up to 6-5-1981 to file the undertaking and 10 days' time to deposit all arrears. No further time is to be given.

By then, on 4-5-1981, respondent No, 1, Bhavnaben, had filed the undertaking as follows:-

That I shall deliver the peaceful and vacant possession of the suit premises within the time granted by this High Court on/or before 2nd of April, 1982. I ahall abide by the court's order dated 2-4-1981 passed in Civil Revision Application No. 425 of 1981.

4. Thereafter, it appears that no amount was paid and the present petitioners proceeded to execute the decree for possession. When the petitioners went for execution, they found obstruction raised by one Hirabhai Rabari posing as the representative of Maninagar Gymkhana Pvt. Ltd. The petitioners, therefore, felt that the undertaking given to this Court that Bhavnaben alone was in possession was thus flagrantly breached and the respondents had committed contempt of court.

5. We had issued rule to these respondents and on 29-7-1981, they have filed their joint reply under their signatures, wherein they have inter alia 6tated that some part of the suit property 'is' in possession of Maninagar Gymkhana Pvt. Ltd. since 1-8-1979. They further alleged that this fact was known to the petitioners (decree-holders), but they had exerted pressure on them and had made them enter into the compromise.

6. As it appeared to us that what these respondents stated before us in reply to the rule issued by us was diametrically contrary to what these respondents had solemnly declared before this Court on 3-4-1981, we thought it necessary to examine both of them and the questions that were put to them and the answers each of them gave are part of the record of these proceedings.

7. It is, therefore, clear that on 2-4-1981, these respondents hadmade a false statement, false to their knowledge, about Bhavnaben alone being in possession. It is clear that had this solemn declaration not been made, I, sitting as the single Judge, would not have given any time and would have allowed the execution proceedings to have their own course. The facts, therefore, in our view, are fully established and they show that these respondents made one or the other of the two declarations, namely, one dated 3-4-1981 and the other in the form of their reply dated 29-7-1981, to be false to their knowledge.

8. The question that, however, arises before us is whether this conduct of these respondents, which ex-facie appears to be improper, gives rise to any contempt, either civil or criminal. Civil contempt has been denned in Clause (b) of Section 2 of the Act as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Though the statement on oath dated 3-4-1981 is labelled as an 'undertaking', it is not an undertaking in the strict sense of the term, but is only a solemn declaration. The word 'undertaking' has been explained in Black's Law Dictionary as taking on oneself or engaging oneself in or as taking in hand. Undertaking is nothing but a promise to do or abstain from doing something. If there is no promise, there is no undertaking. Undertaking is an engagement by one of the parties to the other. It is a promise given by a party in the course of legal proceedings or his counsel, generally as a condition to obtaining some concession from the court or the opposite party. All these various sets of meanings clearly indicate that a party who undertakes promises either to do some positive act or to refrain itself from doing some act. There is always an undertaking to do something or not to do something. The undertaking dated 3-4-1981 is strictly speaking not an undertaking as understood in the common or legal parlance.

9. Assisting us in these proceedings, Mr. Nanavati. the learned advocate for the petitioners, urged that in the further solemn statement dated 4-5-1981, respondent No. 1 Bhavnaben had specifically undertaken two things, namely; (1) to deliver the peaceful and vacant possession of the suit premises within the time granted by this High Court i.e. on or before 2-4-1982. The occasion for this undertaking has not so far arisen. The second undertaking referred to in Annexure F dated 4-5-1981 is that she would abide by the court's order dated 2-4-1981 passed in Civil Revision Application No. 425 of 1981. this Court, as a matter of fact, in its order dated 2-4-1981, had not issued any direction as such qua these respondents. Only a concession was extended to them that if Bhavnaben paid up all the arrears till 31-3-1981 within a fortnight from that day (2-4-1981) and continued to deposit with the trial court mesne profits every month regularly by 7th of the succeeding month and files an undertaking that Bhavnaben alone was in possession, the decree was not to be executed or the proceedings about removal of obstruction were not to be proceeded with. So strictly speaking, there was no direction as such. Mr. Nanavati's submission, therefore, that there was an undertaking in this sense of the term is difficult to be accepted, though we hasten to add that we are fully satisfied that these respondents by giving solemn declaration practised fraud on this Court by persuading it to believe that they would abide by certain conditions and, therefore, the court should extend the time of vacating the premises up to 2-4-1982. This, however, would fall far short of amounting to civil contempt.

10. The question of criminal contempt as denned in Clause (c) of Section 2 of the Act does not at all arise, because the action of these respondents cannot be said to be scandalising the court or lowering the authority of the court or prejudicing or interfering with the due course of any judicial proceeding or interfering or tending to interfere with or obstructing or tending to obstruct the administration of justice in any manner. We are sorry, however, to note that our sympathies were misplaced and these respondents have taken unfair advantage of the indulgence shown by this Court because of the sympathetic attitude towards people who were likely to be thrown out of their residence. We are sorry to note that such irresponsible behaviour of people like this might even smother the court's sympathies in future.

11. Even if we read all the orders and the solemn statements made by the respondents, including Annexures C & F, as contended by Mr. Nanavati, we find it difficult to uphold the contention that there has been any civil or criminal contempt.

12. The Misc. Application No. 331 of 1981 is, therefore, rejected and rule is discharged with no order as to costs.

13. We have heard Mr. R.N. Shah appearing for the respondents on the question as to why prosecution against these respondents should not be launched by this High Court, acting through its Registrar, for the offences Under Sections 182, 193, 199 and 417 of the Indian Penal Code in the larger interests of administration of justice. All that Mr. Shah submitted was that while exercising contempt jurisdiction, this High Court is not competent to give any such direction. The High Court exercising any one of its many facets of jurisdiction remains a High Court in charge of administration of justice and if in the course of its duties it comes to its notice that prima facie some offence concerning the administration of justice has been committed by some party, it will be within the competence of this Court nay, it will be the duty of this Court in the administration of justice to direct prosecution. We, therefore, order that the Registrar of this High Court shall file a complaint against these respondents for the offences Under Sections 182, 193, 199 and 417 of the Indian Penal Code in so far as they had made a false declaration - a sort of evidence on 3-4-1981 and had practised fraud on the court by persuading the court to suspend execution of the decree for one year on the promise that Bhavnaben would be in a position to deliver vacant possession on 2-4-1982 as referred. If such a solemn representation had not been agreed to be made, I would certainly not have stayed the execution of the decree for one year. The declaration was made by them which this Court was authorised to receive as evidence of that fact. This statement was known to be false by them, as their reply dated 29-7-1981 shows.


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