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A.B. Gurumurthi Chetty Vs. Sella Perumal Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad651; 165Ind.Cas.747
AppellantA.B. Gurumurthi Chetty
RespondentSella Perumal Pillai
Cases ReferredKochappa v. Sachi Devi
Excerpt:
- - that this apprehension was well-founded is shown by the events that have subsequently happened. order 21, rule 32 is obviously inapplicable and it is doubtful if section 151 can be invoked in a case like the present. the reference to section 94 must fairly be understood as taking in the provisions of order 39 as well. it does not seem to me to come with any grace from the mouth of a person who has given such an undertaking to say that because the court was good enough to accept that undertaking and did not;.....is common knowledge that in proceedings before the courts in the mofussil hundreds of orders are passed on undertakings given by one or other of the parties. unless i find some reason compelling me to hold that the lower courts themselves are powerless to deal with breaches of such under-takings i am loath to deny to them such power. whether what has happened in any particular case amounts to an injunction or not must be decided with reference to the substance of the court's order and not as a mere matter of form. in the view that i am bound to uphold the authority of the court so far as is reasonable and within the limits permitted by law, i would bold that when a court accepts an undertaking given by a party its order amounts in substance to an injunction restraining him from acting.....
Judgment:
ORDER

Varadachariar, J.

1. This revision petition arises out of an order passed by the District Munsif of Trichinopoly, directing the arrest and imprisonment of the petitioner for a period of two months. The circumstances which led to that order are as follows : The petitioner was the defendant in O.S. No. 728 of 1933 which had been instituted against him for the recovery of a sum of money. Soon after the filing of the suit, the plaintiff applied for attachment before judgment of a certain sum of money lying with the Public Works Department to the credit of the defendant. In that connexion the defendant filed an affidavit on 29th November 1933 undertaking to draw the bill amount and to deposit the same in Court pending disposal of this petition without utilising it for his other purposes. The plaintiff was not prepared to accept this under-taking because he was not sure what the defendant would do once he drew the money. That this apprehension was well-founded is shown by the events that have subsequently happened. When the attachment application came on for orders before the Court on 29th itself, it appears that the defendant's vakil modified the undertaking in the affidavit and substituted an undertaking not to draw the cheque amount pending further orders of the Court on the petition. The vakil took care to add that as the party was not present in Court then, this undertaking was given by him under instructions from the party. The Court recorded the undertaking and on 21st December 1933 an order was passed in the following terms : ' Pleaders heard. Not pressed in view of the undertaking already given by defendant. Dismissed.'

2. I may at this stage dispose of a contention advanced by Mr. Narayanaswami Iyer on behalf of the petitioner that the undertaking given by the defendant or his vakil could enure only pending the disposal of the attachment petition and with the dismissal of the petition on 21st December 1933 the undertaking itself came to an end. I am unable to accept this contention because it will not be a reasonable or even an intelligible construction of the order. The natural meaning of the order is that an attachment is not necessary because of the undertaking given.

3. The defendant had applied for leave to defend under Order 37, Civil P.C. As the Court was prepared to grant leave only on condition of the defendant giving security and as the defendant pleaded absence of means to give security, the plaintiff's pleader was willing that the Court should modify the order of 21st February 1933 to this extent : that the defendant might apply to the Public Works Department authorities to send to this Court the amount standing to the credit of the defendant with them. This order was passed on 8th February 1934. Taking advantage of this indulgence, the defendant drew the money from the Public Works Department authorities and disbursed it to meet what he considered an urgent demand; and on 19th February he made up his mind to file an application to modify the order granting leave. I can only characterise this as an unfortunate step as I do not wish to use any harsher language. In due course this later application was allowed to be dismissed for default.

4. Feeling aggrieved at the way in which the defendant had drawn the money and spent it, the plaintiff applied to the Court to commit the defendant to jail for contempt of Court and for violating the undertaking. The petition purported to be filed under Sections 151, 94 and Order 21, Rule 32, Civil P.C. Order 21, Rule 32 is obviously inapplicable and it is doubtful if Section 151 can be invoked in a case like the present. The reference to Section 94 must fairly be understood as taking in the provisions of Order 39 as well. There can be little doubt that the lower Court was justified in its conclusion that the defendant has been guilty of a breach of his undertaking and I see very little justification or extenuation for that course of conduct. I have, therefore, to deal only with the petitioner's contention that the order of the lower Court was passed without jurisdiction.

5. Mr. Narayanaswami Iyer contends that any proceeding taken under Act 12 of 1926 can be initiated only by an application filed on the original side of this Court and there was no other remedy open to the plaintiff. In the view, I take, it is not necessary for me to express any opinion, as to whether proceedings under Act 12 of 1926 must necessarily be taken on the original side of this Court or can be dealt with on the appellate side. It is not suggested that if the case is covered by the provisions of Order 39, the lower Court had no jurisdiction to deal with the matter. The main argument is that there is no injunction as contemplated by Order 39. I have carefully considered this question. It is common knowledge that in proceedings before the Courts in the mofussil hundreds of orders are passed on undertakings given by one or other of the parties. Unless I find some reason compelling me to hold that the lower Courts themselves are powerless to deal with breaches of such under-takings I am loath to deny to them such power. Whether what has happened in any particular case amounts to an injunction or not must be decided with reference to the substance of the Court's order and not as a mere matter of form. In the view that I am bound to uphold the authority of the Court so far as is reasonable and within the limits permitted by law, I would bold that when a Court accepts an undertaking given by a party its order amounts in substance to an injunction restraining him from acting in breach thereof. The form only implies that the Court is prepared to deal with him honourably in the expectation that he will treat his undertaking as equivalent to an order of Court. It does not seem to me to come with any grace from the mouth of a person who has given such an undertaking to say that because the Court was good enough to accept that undertaking and did not; pass an order of its own he is not in the position of a person bound by an order of the Court. The difficulty referred to in Kochappa v. Sachi Devi (1903) 26 Mad 494 does not arise in the present case, because the order was here passed on an application made by the party and not suo motu by the lower Court. In these circumstances I see no reason to interfere with the order of the lower Court.

6. The Civil Revision Petition is dismissed, but as the matter is not by any means free from doubt, I do not think this is a case in which I should make any order as to costs.


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