Ajay K. Basu, J.
1. This is an application for contempt of Court moved by the petitioner against the respondents for deliberately violating or flouting the solemn undertaking given to this Hon'ble Court by the respondents before Mr. Justice Sankar Prasad Mitra as His Lordship then was who issued the Rule for Contempt. The relevant order in the Rule is: It is ordered that the respondents Sm. Shantilata Mitra, Samirendra Nath Mitra, Sailendra Nath Mitra, Miss Namita Mitra, Mrs. Amita Bose and Mrs. Sabita Ghose to show cause why they should not be held guilty of contempt of this Court for the breach of undertaking given to this Hon'ble Court.
2. This case has a chequered history. The petitioner granted a sub-lease of the 'Paramount Cinema' being premises No. 38, Upper Circular Road, Calcutta hereinafter referred to as the said premises to one Satyendra Nath Mitra, since deceased, for a term of 8 years more fully mentioned in the said lease. In July, 1955, the applicants instituted a suit being Suit No. 1833 of 1955 for ejectment against the said Satyendra Nath Mitra on the ground of default in payment of rent. On 10th July, 1958, a consent decree was passed where it was provided that the said Satyendra Nath Mitra, since deceased, would vacate and deliver up peaceful possession of the said premises to the applicants on the expiry of the period covered by the option in the terms of the said lease dated 25th September, 1952. On 18th July, 1961 Satyendra Nath Mitra died leaving behind him the respondents as his heirs and legal representatives, the respondent No. 1 being his widow and the other respondents being his sons and daughters. In November, 1962, a further consent decree was passed in execution application of the said consent decree dated 10th July, 1958, recording the death of the said Satyendra Nath Mitra and extending the time to vacate the premises till 30th December, 1965. in terms of the Deed of Settlement put in. Then on 15th February, 1966, another consent order was passed before Mr. Justice Sankar Prasad Mitra as he then was in the application for execution of the said decree dated 10th July, 1958, wherein the respondents gave a solemn undertaking to Court to vacate and deliver up possession of the said premises by 31st July, 1967. On 7th June, 1967, i.e., a few days prior to the zero hour for vacating the premises in terms of the undertaking an application was moved by the respondents for getting a discharge from the said undertaking given to this Court on 15th February, 1966, wherein they undertook to vacate on 31st July, 1967 and for an injunction restraining the applicants from evicting the respondents in execution of the said decree dated 15th February, 1966. Thereafter there was an interim order passed by Mr. Justice A.N. Sen, Thereafter that interim order was vacated and the parties were relegated to a suit. Thereafter a suit was filed on 7th July, 1967 and in that suit there was, inter alia, a prayer that the said order dated 15th February, 1966, of Mr. Justice Sankar Prasad Mitra as he then was to be declared void and unenforceable. The respondents obtained an interim stay but that was dismissed by Brother A.N. Sen on 18th August, 1967. Thereafter the respondents filed an appeal from the said order of dismissal of the application of stay by A.N. Sen, J. On 19th February, 1968, the present Rule Nisi was obtained for contempt of Court by the petitioner against the respondents for breach of undertaking given to this Court dated 15th February, 1966. On 21st February, 1968, the appeal filed by the respondents was disposed of and inter alia the hearing of the suit was expedited and the applicants were restrained from executing the said consent decree dated 10th July, 1958. till disposal of the suit. On 21st April, 1969, R.M. Datta, J., decreed the suit in favour of the respondents. The applicants thereafter appealed from the said decree of Brother Datta and on 11th October, 1974, the said appeal was allowed by the appeal court and the decree passed by my learned brother Datta, J., was set aside. From that order the respondents wanted leave to appeal to the Supreme Court which was dismissed. Then they directly applied to the Hon'ble Supreme Court for leave and that was also dismissed on 3rd February, 1975. Thereafter the respondents save and except Mrs. Sabita Ghose took out an application under Section 17-D of the West Bengal Premises Tenancy Act and got a stay of execution of the decree. On 16th May. 1975 the said application of the respondents under Section 17-D was dismissed with costs; on 23rd June, 1975. the respondents preferred an appeal from the said order of dismissal dated 16th May, 1975 and have obtained an interim order and the said appeal under Section 17-D is still pending. This application for Contempt was thereafter assigned to me by Hon'ble the Chief Justice.
3. Mr. Dipankar Ghosh with Mr. Mallick appeared for the petitioner. Mr. R.C. Deb, Mr. T.P. Das and Mr. Anindya Mitra appeared for the respondents.
4. Under the Contempt of Courts Act, 1971, Section 2(b) defines civil contempt, inter alia, as wilful breach of an undertaking given to a Court. In this particular case both the brothers Samirendra and Sailendra personally gave solemn undertaking to Court to vacate as aforesaid and the lady respondents through their counsel gave the undertaking. There is no question that though the undertaking was given to court to deliver up possession by the respondents, the respondents have not carried out the said undertaking and have not given up possession. The main contention of Mr. R.C. Deb for the respondents was that as the appeal is pending from the order dismissing the application under Section 17-D of West Bengal Premises Rent Control Act and there is a stay the Court should not pass any order in this application in any event until the disposal of the said appeal.
5. Mr. Dipankar Ghose, appearing for the petitioner drew my attention to Section 17-D of the West Bengal Premises Tenancy Act. An application under Sub-section (1) of Section 17-D is for setting aside of a decree or proceeding and an execution of a decree shall remain stayed until the application is disposed of. Now the execution of a decree is between the parties, that is, between the judgment-creditor and the judgment-debtor. But an undertaking to Court is a matter between the Court and the person who gives the undertaking to Court and they are entirely different and separate. Stay of execution of a decree simpliciter will not stay the operation of the order of Court regarding the undertaking. Therefore, under Section 17-D what was stayed by that Court is the execution of the decree by the procedure laid down in Civil Procedure Code and during the pendency of the appeal the execution of the decree has been stayed; but an application under Section 17-D cannot override the solemn undertaking given to Court. Mr. Deb's answer is that even if that be so, the petitioners themselves have waited so long and they would wait a little longer. But then the answer is that already about 20 years have gone by and the petitioner had to wait. When the suit filed by the respondents was pending in this Court, the Court stayed the operation of the orders and as such, the order regarding the contempt, for the breach of which this application is made, was also stayed. But Section 17-D of the Rent Control Act only stays the execution of the decree and so is wholly outside the scope of the order of contempt made by this Court and as pointed out by Mr. Ghose, if this application for contempt is now stayed, what will the petitioner's gain? Only their application will not be heard for some time more. But if the respondents ultimately lose the appeal, then unnecessarily this time will be wasted though the respondents will enjoy the premises and even if the respondents win the appeal then the consequence will follow. But the balance of convenience and the equity is certainly in favour of the applicant.
6. Mr. Deb also drew my attention to the cause title of the contempt application which says 'In the matter of violation and breach of the said undertaking on or about 1st August, 1967'. Mr. Ghose points out that whatever may be in the cause title, in the body of the order itself there is no ambiguity and the Court should look to the body of the order passed by the Court and not to the cause title as given by the parties. I, therefore, do not find any substance in Mr. Deb's argument.
7. The next point argued was whether an undertaking given to Court is an order of Court. To my mind, immediately an undertaking given to Court is incorporated in the order of Court, it becomes a part of the order of Court. Reliance was placed on the case of Biba Ltd. v. Stratford Investments Ltd., reported in (1972) 3 All ER 1041 which says that an undertaking given to Court and embodied in the written order of the Court had the same effect as a judgment or order of Court. In support of his contention Mr. Ghose relied on a case reported in : AIR1955Cal182 (Suretennessa Bibi v. Chintaharan Das). It is a Division Bench Judgment where a tenant gave an unconditional and unqualified undertaking to vacate the premises on a certain date and on his failure it was held that he is guilty of deliberate breach of undertaking given by him to the Hon'ble Court and as such, he is guilty of misconduct amounting to contempt of Court. Similarly, in a case reported in (1964) 68 Cal WN 148 which is also a Division Bench .Judgment (Lala Shyam Sundar v. Lala Balji Nath Prasad) the learned Judges followed the earr Her decision and in this case also breach of undertaking was construed as contempt of Court. Mr. Ghose further argued that by giving the undertaking the respondents derived considerable benefit to the detriment of the petitioner and it will be unjust and improper if after enjoying the benefit given to them and their solemn undertaking given to Court they are allowed to resile from the same with impunity. If any one is allowed to get away so easily from solemn undertaking then undertaking to Court loses all significance.
8. Mr. Anindya Mitter, appearing for Sabita Ghose points out that his client as well as Mrs. Amita Bose have given up their rights in favour of their brothers. In that view of the matter and in view of the fact that they are sisters and old mother and are all ladies, though they are technically guilty of contempt of Court but I do not inflict punishment on them.
9. I hold that the two brothers,Samirendra Nath Mitra and SailendraNath Mitra are guilty of Contempt ofCourt. Before awarding punishment, Icalled both the brothers to depose beforeme for the purpose of assessing them andascertaining their conditions. Both ofthem appeared to me to be docile, middleclass Bengalee gentlemen but obviouslythey have a very glorified or exaltednotion of their legal rights which prompted them to deliberately violate and flout.the order of this Hon'ble Court. I doubtwhether these glorified ideas of the legalrights are their own ideas or inspired bysomeone. I need not say anything more.I must note that though in their affidavits filed by them in paragraph 25 theyhave tendered unqualified apology to thisCourt but while arguing their counsel didnot point out or did not say a word thatthey are sorry for their conduct or thatthey are tendering any apology. In paragraph 25 they have stated 'In any eventwe humbly tender our unqualified apology to this Hon'ble Court'. It will be asad day for the Court if the Court allowsthe solemn undertaking given to thisCourt to be mere papers signifying nothing. The parties and litigants must knowand appreciate that they should not beallowed to treat the solemn undertakinggiven to this Hon'ble Court like a child'splay. Undertaking to Court and legalrights are entirely different and separate!matters.
10. As I have found, both Samirendra Nath Mitra and Sailendra Nath Mitra guilty of the Contempt of Court, I punish each of them with a fine of Rupees 1,000/- each and as ordered by the Division Bench in (1964) 68 Cal WN 148 similarly these two brothers Samirendra Nath Mitra and Sailendra Nath Mitra should suffer imprisonment for a fortnight each but such imprisonment will not be carried out if they conform to their undertaking given to Court and vacate the premises in suit and put the applicant in possession thereof within a week from today. In any event, the respondents Samirendra Nath Mitra and Sailendra Nath Mitra must pay the costs of this application to the applicant.
11. At the prayer of Mr. T.P. Das the stay for 7 days is granted.