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Sukumar Mitra Vs. Tarasankar Ghosh - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCriminal Misc. Case No. 28 of 1952
Judge
Reported inAIR1952Cal591,56CWN580
ActsConstitution of India - Article 215
AppellantSukumar Mitra
RespondentTarasankar Ghosh
Appellant AdvocateHiralal Chakravarty and ; Bejoy Ghose, Advs.
Respondent AdvocateHariprasanna Mukherjee and ; Rabindra Nath Mitra, Advs.
DispositionPetition rejected
Cases ReferredCosta Rica v. Erlanger
Excerpt:
- .....breach of the undertaking and praying to the court for taking proceedings in contempt against the opposite party.3. the above rule was served on the opposite party who has appeared in court and has shown cause. in the affidavit in opposition filed by him he has detailed the reasons why he could not vacate the premises on or before 2-1-1952. mr. mukherjee who has appeared on his behalf has raised certain legal objections why this court should not exercise its powers for committing the opposite party for contempt of this court.4. the facts which are relevant for the present purpose may be stated as follows: the petitioner was the landlord in respect of certain premises being the upper flat of 98a bakul bagan road, bhowanipore, calcutta. on an allegation that the opposite party and one.....
Judgment:

Das, J.

1. This is a Rule obtained by the petitioner calling upon the opposite party to show cause why he should not be committed for contempt of this Court as a result of a breach of an undertaking given by him to this Court whereby he undertook to the court to vacate the premises on or before 2-1-1952.

2. The Rule was issued on the 18-2-1952 on an application filed by the petitioner stating; that there has been a breach of the undertaking and praying to the Court for taking proceedings in contempt against the opposite party.

3. The above Rule was served on the opposite party who has appeared in court and has shown cause. In the affidavit in opposition filed by him he has detailed the reasons why he could not vacate the premises on or before 2-1-1952. Mr. Mukherjee who has appeared on his behalf has raised certain legal objections why this Court should not exercise its powers for committing the opposite party for contempt of this Court.

4. The facts which are relevant for the present purpose may be stated as follows: The petitioner was the landlord in respect of certain premises being the upper flat of 98A Bakul Bagan Road, Bhowanipore, Calcutta. On an allegation that the opposite party and one Bankim Chandra Mukherjee were in possession as tenants and had failed to vacate the premises inspite of requisite notices the petitioner instituted a suit for ejectment. The suit was decreed by the trial court and an appeal filed by the opposite party to the lower appellate court proved infructuous. The opposite party thereupon preferred a second appeal to this Court. This appeal was heard by Blank J. The learned Judge directed the suit to be remanded to the trial court. After remand the trial court again decreed the petitioner's suit. The opposite party preferred a second appeal to this Court which was also dismissed. The opposite party then preferred an appeal under Clause 15 of the Letters Patent, being Letters Patent Appeal No. 2 of 1951. This appeal tame up for hearing before this Bench on the 29-1-1951. On that date, the petitioner and the opposite party filed a joint petition of compromise. It is necessary to recite only two of the terms of the said joint petition of compromise, viz., clauses (3) and (5).

Clause (3) states that

'the appellant Tarasankar Ghose, opposite party undertakes to Court to vacate and make over peaceful and vacant possession of the upper flat in the premises No. 98A Bakul Bagan Road, Bhowanipore, Calcutta, to the petitioner Sukumar Mitra (petitioner) on or before the 2nd January 1952...............'Clause (5) states that'in case the appellant Tarasankar Ghose (opposite party) fails to vacate the said upper flat in the said premises within the period aforesaid, the said respondent Sukumar Mitra (petitioner) will be entitled to execute the decree for possession passed by the court below on 29th June 1949 and/or will also be entitled to take such proceedings against the appellant as he may be advised and the said appellant Tarasankar Ghose will not be entitled to raise any objection thereto or to be entitled to any further time on any grounds whatsoever.'

5. The said joint petition of compromise was signed by the appellant Tarasankar Ghose (opposite party) and the respondent Sukumar Mitra (petitioner) on the 29th of January 1951. This Bench recorded an order which inter alia stated as follows:

'Read an application filed in Court to-day and heard learned Advocates. The appellant is present in Court and agrees to the terms set out in the petition.

Let the appeal and the connected Rule be disposed of in terms of the petition of compromise filed in Court to-day and let the petition of compromise form part of the decree...............'

6. A decree was drawn up accordingly. The decree inter alia stated...............

'It is hereby ordered and decreed, by and with consent of the appellant and the plaintiff-respondent, that the appeal as between them be and the same is hereby disposed of in accordance with the terms of the said joint petition of compromise (which is marked with the letter 'A' and annexed to the decree) do form part of the decree and that the said parties do govern themselves and be bound by the terms of the said joint petition of compromise * * * *'

7. As already stated, the opposite party failed to vacate the disputed premises on or before 2nd January 1952, the petitioner moved this Bench and obtained the present rule. The opposite party has showed cause.

8. It is not necessary to deal with the truth or otherwise of the reasons which according to the opposite party, prevented him from complying with the undertaking said to be incorporated in the order of this Court, as in my opinion, this case fails on the legal objections which were raised on behalf of the opposite party by Mr. Hariprasanna Mukherjee, learned Advocate appearing on his behalf.

9. It was first contended that there was no order of the court recording the undertaking which is set out in the joint petition of compromise. The effect of the compromise was said to be that there was merely a qualified undertaking, if any, and as such, proceedings in contempt are not available to the petitioner. In support of his submission Mr. Mukherjee referred us to an unreported Bench decision of this Court in 'HARIDAS BASU v. SAKTIDA PADA', Misc. Case No. 276 of 1951, decided on the 26th of February 1952. In this unreported decision, the facts were that the opposite party of that Miscellaneous Case made an application for stay of further proceedings by way of deli-very of possession to a receiver appointed by the court below and obtained a Rule. An ad interim stay of proceedings as aforesaid was granted. The Rule came up for hearing before a Bench of this Court. By an order dated the 15th May 1951 the Bench directed that the proceedings referred to should be stayed pending the hearing of the appeal, in view of certain conditions and undertakings recorded by the Court. Item (2) of these conditions stated that the petitioner in the said Rule gave an under taking to preserve the property in proper condition pending the hearing of the appeal. The order concluded as follows:

'In default of compliance with any of the conditions Nos. 1, 2 and 4, this Rule will stand discharged with costs, hearing fee one gold mohur.'

10. An application was made for taking proceedings in contempt on the ground that since the said order the disputed premises had fallen down. A rule was issued. The opposite party showed cause & the fact that the premises had fallen down was challenged on behalf of the opposite party. A question of fact had to-be determined whether the disputed premises had collapsed before the 15-5-1951 when the order was made by the Bench. It was held by the Bench (Chakravarttj and Sinha JJ.) hearing the rule that the proceedings in contempt could not be sustained. Mr. Justice Chakravartti gave the following reason in support of the order:

'It is perfectly clear that while laying down the conditions, the learned Judges also had present to their minds the possibility of breaches of the conditions and for such possible breach, they themselves prescribed the penalty. It will be remembered that, according to the default clause, if any default was committed in respect of any of the condition Nos. 1. 2 and 4, the Rule would stand discharged and the consequence of a discharge of the Rule would be that the property would revert to the possession of the receiver. It is thus clear that the learned Judges, in making the order of the 15th May, 1951, did not impose any absolute obligation on the opposite parties in respect of preserving the cinema house in a proper condition but gave them a choice. The choice was that they would have either to preserve the property in proper condition and keep in their possession or if they failed in doing so, they must submit to the receiver resuming possession of the cinema house.'.

The learned Judges therefore held that there was no room left for any case of contempt to arise in that case.

11. In the present case, the undertaking said to have been given to the court to vacate the premises on or before 2nd January 1952 has to be read with clause (5) of the joint petition of compromise which provided that in case of failure on the part of the appellant (opposite party) to vacate the premises . certain consequences would follow namely that the petitioner would be entitled to execute the decree of the Court below and/or will also be entitled to such proceedings as he may be ordered and in such proceedings the opposite party will be disentitled to raise any objection or to pray for extension of time. On the principles laid down in the Bench decision, it must be held that there was no unqualified undertaking on the part of the opposite party and as such the opposite party cannot be held to have been guilty of contempt of this Court.

12. Mr. Chakravarty, learned Advocate appearing for the petitioner has referred us to the decision in the case of 'ALI MOHOMED ADAMALLI v. EMPEROR', 72 Ind App 226 (PC) and has submitted that the mere fact that another remedy is provided for in case the opposite party failed to vacate the premises is not conclusive of the matter. It is true that in 'ALI MOHAMMAD'S CASE' the Judicial Committee observed that

'the contention that the court cannot commit for contempt if any other remedy exists is novel and no authority to that effect was quoted, or was known to their Lordships.'

Their Lordships proceeded to observe:

'No doubt the fact that there is another remedy available is a matter for the court to consider in exercising its discretion whether to commit or not to commit, but, on the other hand, the desirability of speed and necessity of ensuring that the orders of the court should be obeyed are also matters of importance.'

13. These observations do not really assist the petitioner in the submission that the Bench decision of Chakravartti and Sinha JJ., should not be followed. The Bench decision of Chakravartti and Sinha JJ., proceeded on the footing that in cases like the present where the consequences of default are provided for in the order itself, the undertaking should not be construed as being an unqualified one.

14. In my opinion, the first contention of the petitioner must be given effect to. The undertaking said to have been given to the court in the circumstances of this case, should not be regarded as an unqualified undertaking and a failure to keep to the terms thereof cannot therefore be regarded as justifying the exercise of the discretionary powers of this Court to order committal for contempt.

15. It was also contended on behalf of the opposite party that the effect of the order of this Bench recording the compromise, was that the undertaking must be taken to be one as between the parties.

16. It is well settled that a breach of an undertaking given to the court by a person in pending proceedings on the faith of which the court sanctions a particular course of action, is misconduct amounting to contempt. The question however is whether in making the order which this Court passed on the 29th January 1951 the court sanctioned the compromise because an undertaking was given to it. I have already quoted the terms of the order of this Court as also the material portion of the decree.

17. In Seton on Judgments and Orders, Edition 7, volume 1, page 124, it has been stated that the compromise ought not to be introduced into the body of the order but either identified or scheduled. It is, however, common practice to insert undertakings in the body of the order, and in the event of breach, undertaking may be enforced by writ of attachment, whereas if it formed part of the agreement set forth in the schedule, proceedings in the nature of specific performance might be 'necessary.

18. In this country, the mode of recording a compromise came up before the Judicial Committee in the case of 'HEMANTA KUMARI DEBI v. MIDNAPORE ZEMINDARI CO. LTD.', 46 Ind App 240 (PC). Lord Buckmaster made some pertinent observations at page 246:

'Their Lordships are not aware of the exact system by which documents are recorded in the courts in India. But a perfectly proper and effectual method of carrying out the terms of the section would be for the decree to recite the whole of the agreement and then to conclude with an order relating to that part which was the subject of the suit, or it could introduce the agreement in a schedule to the decree, but in either case, although the operative part of the decree would be properly confined to the actual subject-matter of the existing litigation, the decree taken as a whole would include the agreement.'

19. In the present case the undertaking to the court was not formally embodied in the order directing the compromise to be recorded, nor was it specifically set forth in the decree. It may be that the clear implication of the order was that there was an undertaking to the court to vacate the premises on or before the 2nd January 1952. At the same time a litigant in the position of the opposite party might have been under a bona fide misapprehension as to the effect of the order of this Court and the decree passed therein.

20. Mr. Mukherjee has drawn our attention to a Bench decision of the Patna High Court in the case of 'BAKHTIARPUR BIHAR LIGHT RAILWAY CO. LTD. v. STATE OF BIHAR', : AIR1951Pat231 and has submitted that in somewhat similar circumstances a Bench of the Patna High Court was of the opinion that there was no undertaking to the court in the case. As I have said it is not necessary for us to decide finally whether in this case there was an undertaking given to the court or not. In my opinion, there was room for reasonable doubt in the mind of a person like the opposite party that he had not given an unqualified undertaking to the court. In the case of 'HOMI RUSTOMJI v. SUB-INSPECTOR BAIG', AIR 1944 Lah 196 (Special Bench) Harries C. J. observed that proceedings for contempt of court though not criminal, are of quasi-criminal nature and therefore when there is any reasonable doubt, the person charged with contempt is entitled to the benefit of such doubt.

21. The decision of Das J. in 'PROKASH CHANDRA v. MANINDRA NATH', ILR (1946) 2 Cal 499 to which our attention was drawn by Mr. Chakravarty is distinguishable. In that case there was an unqualified undertaking given to the court to vacate the premises by a special date. There was no ambiguity whatsoever in the undertaking and there was no room for reasonable doubt as to whether an unqualified undertaking was given or not. The undertaking was also recorded by the Court.

22. It is also to be remembered that the remedy of committal for contempt should be most jealously and carefully watched and should only be exercised with the greatest reluctance and the greatest anxiety on the part of Judges: see Jessel, M. R. in 'Costa Rica v. Erlanger, In Re: Clements' (1877) 46 LJ Ch 375 at pp. 381-382.

23. In view of the principles indicated above and having regard to all the facts and circumstances of the case, I am clearly of opinion that this is not a fit case for the exercise by this Court of its extraordinary and summary powers to commit the opposite party for contempt of this Court.

24. My conclusion therefore is that this petition must fail. Having regard to all the circumstances I am of opinion that the parties should bear their own costs.

Lahiri, J.

25. I agree


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