1. This rule was issued on the opposite party to show cause why he should not be committed to prison for contempt of this Court for breach of a personal undertaking given by him to this Court in Second Appeal No. 1461 of 1953. The facts relevant for the purposes of this Rule may be briefly stated as follows: The petitioner Suretennessa Bibi instituted a suit for ejectment against there opposite party Chintaharan Das in respect of premises No. 37D, Surendra Nath Banerji Road. The petitioner succeeded in getting as decree for ejectment in the Courts below and against the decree of the lower appellate Court the opposite party Chintaharan Das filed a second appeal which was registered' and numbered as S. A. 1461 of 1953. That second appeal came up for Hearing under Order 41, Rule 11, Civil P. O., before this Court on 1-12-1953 on which date the following order was recorded by the Court: 'This appeal will be heard. The records need not be sent for and the usual notices need not issue, as it is represented to 'us that Mr. Charu Chandra Ganguly, Advocate, has got instruction to appear for the 'sole respondent.
Mr. Ganguly is permitted to enter appearance for the' sole respondent.
This appeal is disposed of in terms of the Joint petition of compromise filed by the parties in Court today. This petition will form part of the decree of this Court.'
2. The Joint petition of compromise which was filed by the parties was supported by an affidavit by Chintaharan Das on behalf of the appellant and by Abdul Gani on behalf of the respondent. Paragraph 2 of the petition runs as follows: 'The aforesaid appellant gives a personal undertaking to the Hon'ble Court that he will give quiet and vacant possession of the premises in question (which is the .subject-matter of the suit and appeal) to the aforesaid respondent by 25-2-1954.'
Paragraph 3 of the petition permits the respondent to withdraw the amount deposited by the appellant as cost. These are the only two terms upon which the appeal was allowed to be compromised on 1-12-1953. Thereafter the respondent Suretennessa Bibi filed an application before us alleging that though the appellant Chintaharan Das undertook to give quiet, and vacant possession of the premises by 25-2-1954, he had failed to do so and accordingly the petitioner applied for a Rule upon the opposite party Chintaharan Das to show cause Why he should not be commit-ed to prison for breach of the personal undertaking given to this Court.
It appears that the opposite party Chintaharan Das addressed a letter to the petitioner Suretennessa Bibi bearing the date 26-2-1954 in which he stated that he had vacated the house after Informing the petitioner verbally. In spite of his request to take possession of the house as well as the articles of furniture neither the petitioner nor her representative turned up and as such the opposite party was compelled to keep the articles under lock and key. This letter has been filed by the petitioner with his petition and it is marked as annexure 'B'. To this letter the petitioner sent a reply on 28-2-1954 denying the allegations that the opposite party was prepared to give vacant possession of the premises on or before 25-2-1954. The petitioner further alleged that upon enquiry she was satisfied that the premises were still in the possession of the opposite party who had not yet vacated the same and in this letter the petitioner charged the opposite party with having taken no step to comply with the terms of the solenama filed in this Court.
3. The opposite party in showing cause before us has stated that he had sub-let a considerable portion of the premises in dispute long before the institution of the suit for ejectment and that the petitioner Suretennessa Bibi was aware of this fact. It is curious that this allegation was not made in the letter which was addressed by the opposite party to the petitioner on 26-2-1954 nor was it mentioned in the affidavit which was sworn to by the opposite party in support of the petition of compromise filed in this Court on 1-12-1953. If the allegation made by the opposite party to the effect that he had sub-let a considerable part of the premises long before the institution of the suit and therefore it was not possible for him to give vacant possession to the petitioner on or before 25-2-1954 be correct, we must hold that the opposite party was guilty of having fraudulently suppressed this fact from this Court when he gave a solemn undertaking to this Court to vacate the premises in dispute on or before 25-2-1954. The letter which the opposite party wrote to the petitioner on 26-2-1954, in our opinion, is a mere eye-wash and was written for the purpose of creating evidence in his favour that he had complied with the terms of the undertaking given by him in his affidavit in this Court.
4. We have, therefore, no doubt in our mind that the opposite party Chintaharan Das is guilty of a deliberate breach of the personal undertaking given by him to this Court in his affidavit dated 30-11-1953. It is. settled law that breach of an undertaking given to a Court by a person in a pending proceeding on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt. In the case before us on the faith of the undertaking given by the petitioner the appeal filed by him was disposed of in terms of the petition of compromise under the provisions of Order 23, Rule 3, Civil P. C.
5. Mr. Guha appearing for the opposite party strongly relied upon the decision of this Court in the case of 'Sukumar Mitra v. Tarasankar Ghosh', : AIR1952Cal591 (A), to which I was a party. That was a case where there was an undertaking given by the tenant to vacate the premises by a particular date and there was a further clause that in case the tenant failed to vacate the premises in question within the prescribed period the landlord would be entitled to execute the decree for possession. Having regard to the fact that the consequences of default were provided for in the undertaking, it was held that 'the undertaking given in that case was not an unconditional or unqualified undertaking but was a qualified undertaking, a breach of which could not bring the case within the mischief of contempt proceedings.
It was further held in that case that the Court had some doubts whether in that case there was an undertaking given to the Court because there was room for reasonable doubt in the mind of the tenant that he had not given an unqualified undertaking to the Court. In the case before us, however, there can be no doubt that the undertaking given by the opposite party Chintaharan Das was an unconditional and an unqualified undertaking. The' consequences of default are not provided for either in the undertaking or in the order passed by the Court. In these circumstances, we are unable to hold that the decision in 'Sukumar Mitra's case (A)' helps the opposite party.
6. Mr. Guha also relied upon the fact that the undertaking given by the opposite party was not recorded in the order of the Court and therefore the conduct of the opposite party in violating the undertaking did not amount to contempt. We are unable to accept this argument. By the order which was passed by the Court the undertaking given by the opposite party in his affidavit was made a part of the decree and there can be no doubt that the Court disposed of the appeal on the faith of the undertaking given by the opposite party in his affidavit.
7. For these reasons we have reached the conclusion that the opposite, party Chintaharan Das is guilty of breach of a personal undertaking given to this Court which amounts to contempt.
8. Mr. Guha, appearing for the opposite party, has requested us to adjourn the case for the period of one month to enable the opposite party to comply with the undertaking given by him to this Court in his' affidavit dated 30-11-1953. In that undertaking the opposite party promised to vacate the premises by 25-2-1954. From that date he has had a period of two months and a half and as he has not been able to comply with-the undertaking during this period, we find no reason for holding that any useful purpose will be served by allowing him to comply with the undertaking by adjourning this case for a further period of one month.
9. We accordingly convict the opposite party Chintaharan Das for having committed an act of contempt and sentence him to simple imprisonment for three months and to pay a fine of rupees one thousand.
10. Let a writ of arrest be drawn up by the Registrar, Original Bide, and placed before us immediately. The Registrar is to act on a signed copy of the operative part of this order.
11. All 'expenses and charges for issue of the writ and for conveying the prisoner to the jail will be borne by the petitioner.
J.P. Mitter J.
12. I agree.