B.P. Mukharji, J.
1. This is the deft's. appln. for committing the pltfs. Sambhu Charan Nundy & Nilmoni Nundy for contempt & for varying and discharging the undertakings given by the deft, appct. under the consent decree. Two questions have been argued before me: one relates to the pillars according to the sanctioned plan of the Corpn. & the other relates to a window in the south-eastern room which is the alternative accommodation given under the consent decree to the deft.
2. The consent decree is dated the 23-11-1930. The terms of the consent decree are set out in annexure B to the petition. There are respective undertakings of the pltfs. & the deft, in the various clauses of the terms of settlement; for instance, Clause 2 of the terms of settlement contains undertakings given both by the pltf. as well as by the deft. Similarly, Clause 5 (wrongly numbered as 5 in the terms of settlement) embodies the undertaking by the deft.
3. With regard to the first question about pillars, it is admitted that the pltfs. have not built them according to the sanctioned plan attached to the decree & have thus failed to carry out the terms of the consent decree. The contention is therefore established.
4. Mr. Hitter's clients have however in the affidavit that they have filed as also in Ct. 'offered apologies through Mr. Mitter to this Ct. Mr. Mitter has also on behalf of his clients given an undertaking to the Ct. that the pillars will be built according to the sanctioned plan attached to the decree. I accept that apology & that undertaking.
5. The purpose of a contempt appln. is to see the honour of the Ct. respected & its orders obeyed. The sole object of the Ct. wielding its power to punish for contempt is always for the cause of administration of justice. That is its only interest in contempt jurisdiction & to that end such power is dedicated. In this respect neither pique nor vindictiveness at all enters into its consideration. I think justice in this case will be vindicated by accepting the apology & the undertaking given by the pltfs. to put up the pillars according to the sanctioned plan & by the resp. pltfs. paying the costs of this appln. The ease made out by the pltfs. in their affidavit with regard to the pillars is that it was really more desirable to have two pillars instead of three as shown in the sanctioned plan, as three pillars would only take more space than two pillars & the pillars have been placed in such positions that two in the case are enough & that such arrangement they thought would be better for the deft. Be that as it may, it is unfortunate that the pillars were not put Up according to the exact directions of the Ct. & according to the sanctioned plan to which the parties agreed by the terms of settlement. I am not concerned here with the reasonableness of what they have done but having regard to these reasons I am prepared to give the pltfs. another chance & thus accept the undertaking given today. Mr. Deb appearing for the deft, is prepared to accept such undertaking as he says his client wants the pillars to be constructed in the manner laid down in the sanctioned plan attached to the consent decree.
6. With regard to the opening of a window in the south-eastern room which is the alternative accomodation given to the deft, after he vacates the room in which he is in occupation now, it is said that there was a window at the time but has since been closed. The result is that the room has now no window at all. The room is intended to be used as a dispensary. Now, there is no undertaking with respect to this particular contention. Even if it is assumed that there was a window in the room but has been closed since as appearing in the affidavit of Dr. Sudhir Kumar Chakravarty affd. on the first day of February 1951, the appct's. case for contempt is not helped or advanced. Clause 1 of the terms of settlement provides that 'the pltfs. agree to let to the deft, the south-eastern room on Masjidbari Street having two shop doors on the said street of No. 124 Upper Chitpore Road. The room is demarcated in red in attached plan.' If the appct. has any remedy on this basis & if the appct. is right in his contention that there was in fact a window which has been blocked, he will have to choose appropriate remedies as he may be advised if there be any such remedies open to him. I have however no doubt in my mind that breach, even if there is any of term, the appct. cannot in any event proceed in contempt. The question whether there was a closing down of the window at the date or the time when the consent decree was made does not appear to me to be established on the affidavits. On behalf of the pltfs. it is said both in the affidavit as well as in the statement of counsel to the Ct. that the window was closed about eight months ago. That would show that there was in fact no window at the time of the consent decree.
7. There is also an affidavit of the previous tenant Paresh Nath Sil, who left this house & is no longer a tenant of the pltfs. saying in support of the pltfs. that the window was closed about 8 months ago. The engineers on either side have sworn affidavits to support their respective client's case. Mr. Jagannath Ganguly, in support of the appct. makes the case that from the construction it appears that the window has been closed recently, but of course he does not give, or venture to give, any approximate date & he does not say what he means by the word 'recently.' Equally, on the other side, another professional gentleman by the name of Mr. K. C. Pal, an engineer, chooses to say that there 'possibly could not be' any window. Be that as it may, I do not think that it helps the appct. inasmuch as there is no undertaking in respect of the alleged window, as indeed it could not be, having regard to the present dispute.
8. Mr. R. C. Deb, appearing on behalf of the appct. asks me that on this ground I should discharge his clients undertaking under Clause 2 of the terms of settlement to go into the south-eastern room. I do not think that the exact language of Clause 2 gives any strength to this argument of Mr. Deb. But, even assuming that the question of the deft. being released from his undertaking to go into the south-eastern room can arise, I do not see how I can give effect to it.
9. This is a consent decree & unless the parties agree, it will not be for the Ct. to alter the decree. Mr. Deb submitted without any authority that the Ct. can always vary the undertaking given by a litigant. I do not think that such a broad proposition is either correct in law or sensible. It is quite true that an undertaking is primarily a matter between the Ct. & the litigant but it is also incidentally, & very often substantially, one of the major considerations by which the other contending party agrees to certain terms. Here as I analyse the terms of settlement under the consent decree I find there are respective undertakings given by the pltfs. & the deft. to the Ct. & each is the consideration for either of the parties coming to the terms of settlement as they did. To vary, therefore, one particular undertaking of a particular party, the deft, in this case, & at the same time keeping the other undertakings of the pltf. to the Ct. intact, would be, in my view, unjustified because it will irreparably prejudice the pltfs. It is conceivable that if the deft. had not given that undertaking to Ct. the pltf. would never have agreed to the terms of settlement as embodied in the consent decree. I am, therefore, not willing to upset these undertakings & thus destroy the very basis of this consent decree. The law, as far as I know, is also to the same effect. Jessel M. R. in Hullins v. Howell, (1879) 11 Ch. D. 763 at p. 766 refd. to this question & the learned Master of the Rolls comes to this conclusion that interlocutory consent orders containing any undertaking could be discharged or varied on motion to the Ct. if such undertaking was given by mistake & where to enforce it will be an oppression on the party who gave such undertaking. I am of the view that the same position cannot be said to arise in a case where the final decree has been made, signed, passed & filed embodying the undertakings. The ratio of the decision of Jessel M. R. was based on the well known principle that the Ct. always has a 'general control' over orders made on interlocutory applns. & therefore had jurisdiction to mould them. Such is not the case where the Ct. has lost seisin of the matter after the completion of the final decree. Romer J. in Ainsworth v. Wilding, (1896) 1 Ch. D. 673 reviewed almost all available authorities including the one of Jessel M. E. & was of the view which supports my conclusion.
10. An appln. merely to vary or discharge an undertaking embodied in a final consent decree signed, completed & filed is in my judgment incompetent & the Ct. has no jurisdiction to entertain such appln. Bat that does not mean that in case of every breach of an undertaking in such a consent decree or for the matter in any other final decree signed, completed & filed, the Ct. has no option but to punish such breach by committing the contemner to prison. Such committal is always discretionary with the Ct. & the Ct. exercises such discretion on the facts of individual cases after their due consideration. Court's power to punish contempt always carries with it the power to pardon contempt if need be.
11. Mr. Deb apprehends that as there is no window the room would not be usable & if his client cannot get into that room, then he might be proceeded in contempt by the pltfs. at a later stage. If that is so, then that will be the proper stage for him to raise this question either for relief or of condonation on proper grounds. I do not therefore think I can make any order or I should make any order in respect of the window at this stage.
12. The order, therefore, will be recording of the pltfs. undertaking to the Ct. to put up the pillars as shown in the sanctioned plan attached to the decree & the pltfs. will pay the cost of this appln. to the appct. The key of the said southeasterly portion of the room is admittedly in the hands of the appct. The pltfs undertake to Ct. to commence work or construction of the pillars according to the sanctioned plan within a week from the date of the key being sent by the appct.'s solicitor to the pltf.'s solicitor. Plaintiffs further undertake to this Ct. to finish such construction of pillars within a month from such commencement of the construction.