1. This is an appeal from a judgment of Gentle J. in a case of contempt of Court.
2. The present appellant and the respondent had entered into a tenancy agreement in respect of a room in No. 1A. Obhoy Goho Road, Calcutta. The respondent, who was the owner of these premisss had let to the defendant one room in the premises as a shop in which the trade of a butcher was to be carried on. In that room the appellant installed the images of Kali and Siva and to this the respondent objected. Eventually the respondent gave to the appellant notice to quit the premises and brought a suit for ejectment in this Court.
3. The suit was not contested, but on the contrary the parties came to an agreement. The terms of compromise were drafted and signed by the parties and these terms were handed, into Court and the compromise was made a rule of Court.
4. By the compromise the present appellant admitted that he was a monthly tenant of the premises which he used as a meat shop. He also admitted that the images Of Kali and Siva had been brought to the said shop without the consent of the respondent. He further admitted that this was a wrongful act on his part. The defendant then went on to admit that he had removed the image of Siva since the suit had been instituted and then admitted that the Kali image had never been consecrated and was not being worshipped and in fact that it had only been placed in the shop to attract customers. Then follows a most important paragraph and I think it advisable to set out that paragraph in extenso:
The defendant hereby undertakes to remove the said Kali image as also all permanent brick built and other structures in and around the place where the image of Kali is situate before he gives up possession of the saia shop room or at any time prior thereto on demand by the plaintiff or the owner for the time being of the said premises No. 1A. Abhoy Goho Road.
5. Then follows a term by which the present appellant was allowed to continue as a monthly tenant of this room at a rent of Rs. 18/-per month.
6. As I have said, the compromise was presented to the Court and a decree was passed in terms of the compromise.
7. Later, the respondent called upon the appellant to remove this image of Kali which was placed in the shop. The appellant declined to do so and accordingly the respondent applied to this Court to commit the appellant for contempt of Court on the ground that he had broken an undertaking which he had given to the Court that he would remove the Kali image when called upon to do so by the respondent.
8. Gentle J. who heard this application came to the conclusion that the present appellant had given the Court an undertaking to remove the Kali image and certain structures upon demand made by the respondent and as he had declined or neglected to do so after such demand he was guilty of a breach of his undertaking to the Court. The learned Judge held that this was a case of contempt, committed the appellant and ordered that he should be detained in prison for a period of one month, though he was given a month to remove the image and the structures and to pay certain sums to the respondent in which event he would not be imprisoned.
9. On behalf of the appellant it has been contended that this committal for contempt of Court cannot possibly be sustained. Before the learned Judge it was argued that the appellant was under no obligation to remove the image or any structures until the termination of the tenancy. The learned Judge rightly pointed out that paragraph 6 of the compromise agreement makes it clear that the appellant would be bound to remove the image and structures either before he vacated the premises or at any time when called upon to do so by the respondent. The point made before the learned Judge has, very wisely, not been pressed before us. Clearly the respondent had a right to call upon the appellant to remove the image and the only question that we have to decide is whether his failure to remove the image is a breach of any undertaking given by him to the Court and therefore a contempt of Court.
10. The alleged undertaking given by the appellant is said to be contained in paragraph 6 of the compromise and that paragraph has already been set out at length. It is to be observed that that paragraph which opens with the words 'The defendant hereby undertakes to remove the said Kali image...' does not state that the defendant undertook to the Court to remove the image. It is merely stated that the defendant undertook.
11. It was urged before Gentle J. and again urged before us that there was no undertaking given to the Court in paragraph 6 of the compromise. All that paragraph 6 means, it is said on behalf of the appellant, is that the defendant agrees with the plaintiff to remove the image before he gives up possession or at any time on demand.
12. The learned Judge was of opinion that the ordinary meaning must be given to the word 'undertakes' and he seems to have thought that the ordinary meaning of the word 'undertakes' was 'solemnly promises' to a Count.
13. We have examined the various meanings of the word 'undertake' in the Oxford Dictionary and nowhere is it said that the word 'undertakes' implies a promise to a Court. One of the meanings of the verb 'to undertake' is 'to give a, formal promise or pledge.' That is, to give a formal promise or pledge to any one, not necessarily to a Court. It, therefore, follows that if the ordinary meaning is given to the word 'undertakes' paragraph 6 should read: 'the defendant hereby formally promises or pledges to remove the said Kali image...' 'What the respondent urges us to do is to read into paragraph 6 the words 'undertakes to Court.' The words are not there.
14. It must be remembered that this compromise agreement was negotiated between the parties outside Court. They were agreeing to certain terms and amongst other things, the defendant promised or undertook to remove this image when called upon to do so. The agreement he made was not with the Court, but with the plaintiff respondent, and prima facie he undertook to remove this image with the plaintiff respondent.
15. When this paragraph is to be construed we must bear in mind that it is found in a document executed by two parties, the plaintiff and the defendant and the promises made by the plaintiff are promises made to the defendant and vice versa. How, therefore, can the undertaking to remove the image be treated as an undertaking not to the plaintiff but to the Court? It must be remembered that the Court at this stage was no party to the agreement.
16. Mr. Ghose who has agrued this case on behalf of the respondent with great force has urged that we must bear in mind that this agreement was arrived at with a view to presenting it to Court and asking the Court to pass a decree in its terms. He has contended that when that is borne in mind it is clear that the words 'the defendant hereby undertakes to remove' means that the defendant agrees to give the Court an undertaking that he would remove the image. But I cannot see how those words can possibly be read into paragraph 6 of the compromise agreement. Even if the parties intended, as they did, to submit these terms to Court and to ask the Court to pass a decree in terms of the compromise, all they intended to do was to obtain a decree which would enable the terms to be enforced by the Court. All that could be enforced were the terms actually agreed upon.
17. The fact that this document was to be submitted to Court cannot, in my view, affect the construction to be given to paragraph 6. If, on a proper construction of paragraph 6 there is nothing but a promise, possibly solemn, by the defendant to the plaintiff, then it does not become anything more than such a promise when the document is put in Court and the Court passes a decree in terms of it.
18. It must be remembered that compromise decree is nothing more than an agreement of the parties with the sanction of the Court superadded. It has really no greater sanctity than the agreement itself. It certainly cannot mean anything more than the agreement itself.
19. Mr. Ghose frankly admitted that if the words in para. 6 were 'the defendant hereby undertakes with the plaintiff to remove the said Kali image', then making that agreement a rule of Court could not possibly convert that undertaking into an undertaking to the Court. He did, however, contend that as the words 'with the plaintiff 'had been omitted, the moment the decree was passed in consonance with the agreement, the words 'the defendant hereby undertakes to remove the said Kali image' became 'the defendant undertakes to the Court to remove the said Kali image'. I am quite unable to follow that argument or the reasons upon which it is based. It appears to me that the Court must first construe para. 6 of the compromise and ascertain its meaning. Once that meaning is ascertained, the meaning cannot be changed merely because a decree was passed in teems of the compromise. The terms of the decree must mean precisely the same as the terms of the compromise.
20. Gentle J. followed a single Judge decision of this Court in Haricharan Dey v. Ranjit Kumar ('38) 42 C.W.N. 203. In that case the word 'undertake' was used in a paragraph in a compromise, although there was nothing to suggest that the undertaking was to a Court. The compromise was made a rule of Court, and Panckridge J. came to the conclusion that the undertaking mentioned in the compromise was an undertaking to the Court. The learned Judge gives no reasons for so holding beyond the fact that the word 'undertake' was used. But as I have stated the mere user of the word 'undertake' does not mean a promise to a Court. It merely means a solemn promise to some one and where the word appears in an agreement between A and B, it appears to me that if A undertakes, he obviously undertakes to B, and not to a Court. In Building and Land Trust (India) Ltd. v. Tilok Ghand Surana (unreported) decided on 22-5-1946, Clough J. arrived at the same conclusion as that arrived at by Panckridge J. in the case I have cited and Gentle J. in the present case. The learned Judge appears to have thought that once the facts are borne in mind that the parties intended the agreement to be submitted to Court and that a decree was passed in terms of it, the word 'undertake' when used in a compromise must mean an agreement by one of the parties to give an undertaking to the Court. I cannot accept that reasoning. It appears to me that each case must be decided on its particular facts and upon the precise words in the compromise under discussion and cases are not very helpful unless the words are precisely similar. In the present case, it appears to me, on a true construction of para. 6 of the compromise, that there was nothing more than a solemn promise by the defendant to the plaintiff and the nature of that promise or undertaking could never be changed by reason of the compromise being accepted by the Court and a decree passed in its terms.
21. It was urged by Mr. Ghose on behalf of the respondent that this is the common practice on the Original Side. If it is then the sooner the practice is stopped the better. I find it difficult to believe that practitioners on the Original Side do not make it clear that an undertaking is to. the Court and not to another party. It is true that the practitioners on the Original Side have this case of Panckridge J. in their favour, but in my view that case cannot be supported and the practice if it exists should cease. If one of the terms of compromise is that one of the parties should give an undertaking to the Court then the compromise should make it clear that such is the case. If it does not make it clear and the compromise merely states that one of the parties 'undertakes' then the ordinary construction must be given that that is a promise or solemn promise given to the other party and not to the Court.
22. In my judgment the view of the learned Single Judge cannot be sustained and that being so the appellant should not have been committed for contempt and his committal and sentence are set aside.
23. In the result, therefore, this appeal is allowed. The order of the learned Single Judge is set aside and the application to commit the appellant for contempt is dismissed. The appellant is entitled to his costs in this Court and in the Court below.
B.K. Mukherjea, J.
24. I agree.