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Lala Baijnath Prosad Vs. Lala Shyam Sunder - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1961CriLJ222
AppellantLala Baijnath Prosad
RespondentLala Shyam Sunder
Cases ReferredHaridas Basu v. Sakti Pada Mukherjee
Excerpt:
- .....was being' resolved by a promise on his part to do the act by a certain date. there was already a decree for possession against him under which he had the obligation to leave the premises and make over possession of the same to the applicant herein, no doubt the liability as to. mesne profits was being quantified but construing the order i have no hesitation in holding that the respondent was binding himself to the court to vacate the premises by october 1, 1960. if the words 'to court' had appeared after the words 'upon the said respondent by his said advocate undertaking' the ground for the argument advanced would have disappeared. the absence of the words 'to court' does not, in my opinion, make any difference on the facts of this case. if the 'undertaking' was meant to be no more.....
Judgment:
ORDER

G.K. Mitter, J.

1. This is an application by one Lala Baijnath Prosad, a decree-holder, for committal to prison of the respondent Shyam Sundar Agarwalla for contempt of Court for breach of an undertaking alleged to have been given by him and recorded in the order dated 22nd of September, 1959 whereby he undertook to pay to Messrs. Sarat Chandra Ghose and Co., Attorneys for the petitioner, a sum of Rs. 500/- per month as mesne profits by the first week of every month, the first of such payment to be made by the first week of October 1959, and deliver vacant possession of premises No. 6, Shibu Thakur Lane, Calcutta, to the petitioner on or before the 1st of October, 1960.

2. The facts as laid in the petition are as follows. One Lala Pratap Chandra Agarwalla instituted suit No. 4 of 1926 in the Court of the Judge, Small Cause Court, Allahabad, for partition of the joint family business and properties belonging to the parties to the said suit, the petitioner being defendant No. 7 and the respondent being defendant No. 22. The final partition decree was made on the 13th of January, 1939, whereby lot No. 4 including a Calcutta property, being premises No. 6, Shibu Thakur Lane, was allotted to the petitioner. An appeal was preferred from this decree to the Allahabad High Court and it was disposed of by a decree dated 6th of December 1949 whereby the said Calcutta property as well as other properties were allotted to the petitioner. The decree provided that the parties would be put in possession of the immovable properties forthwith and the Receiver appointed over the property would be discharged. The petitioner filed two applications for execution at Allahabad, in execution case No. 2 of 1953, excluding the Calcutta property. On the 15th of February, 1958, a tabular statement was filed in this Court by the petitioner for execution of the said partition decree by delivery of possession of premises No. 6, Shibu Thakur Lane to the petitioner by evicting the respondent Lala Shyam Sundar from the said premises as indicated in column 10 of the tabular statement. An order for possession was made in terms of the tabular statement on the 12th of June, 1958. Thereupon the respondent 'took various proceedings for setting aside the said order for possession and ultimately by an order dated 5th of May, 1959, the Stay order obtained by the respondent was vacated with the result that the order for possession made on the 12th of Tune 1958 became enforceable. As the respondent offered resistance when the Sheriff went to deliver possession in terms of the order the petitioner made an application under Order 21 Rule 98 of the Code of Civil Procedure and the matter came up before P. B.

Mukharji, J. when His Lordship made an order directing the Sheriff of Calcutta to put the petitioner in possession of premises No. 6, Shibu Thakur Lane. According to the petition, the learned advocate for the respondent gave an undertaking to this Court whereby the respondent was to vacate the premises No. 6, Shibu Thakur Lane, Calcutta, on or before the 1st day of October 1960, and to pay a sum of Rs. 500/- per month as mesne profits to Messrs, Sarat Chandra Ghose and Co. by the first week of every month, the first of such payments falling due in the first week of October, 1959. As. the application turns on the exact wording of the order it is necessary to set out the relevant portion-thereof in extenso. After reciting the affidavits used in connection with the application the order provides as follows:.upon hearing Mr. B. C. Dutt Advocate for the said applicant and Mr. G. Chakravarty for; Mr. S. Banerji Advocate for the said respondent and upon the said respondent by his said advocate undertaking to vacate the premises No. 6, Shibu Thakur Lane, Calcutta, on or before the first day of October one thousand nine hundred and sixty and also undertaking to pay the sum of Rupees five hundred per month as mesne profits to Messrs. Sarat Chandra Ghosh and Company attorneys for the said applicant by the first week of every month; the first of such payment to be made by the first week of October next, it is ordered that the Sheriff of Calcutta do put the said applicant in possession of premises No. 6, Shibu Thakur Lane, Calcutta and it is further ordered that the said Sheriff do take police help it necessary for removing the occupiers of the said premises including the said respondent and for putting, the said applicant in possession of the said premises and it is further ordered that if further resistance or obstruction is made by the said respondent or by other person at his instigation the said Sheriff do in the mode prescribed under Order XXI Rule 98 < of tile Code of Civil Procedure put the said applicant in possession of the said premises and upon the undertaking of the said respondent given as aforesaid it is further ordered that this order shall not be executed till the first day of October one thousand nine hundred and sixty.

3. The learned Advocate-General appearing for the respondent contends that the undertaking mentioned in the order was not, and is not, one given-to this Court but merely amounts to a promise by his client to do certain things by specified dates which the parties had recorded in the order made by this Court. It is argued that the order shows that the Court took the view that the applicant was entitled to an order for possession but that the order was not to be executed till the 1st day of October 1960' because of the agreement between the parties which was recorded in the form of an undertaking. I find myself unable to accept this argument. According to the Oxford Dictionary 'to undertake' means 'to bind oneself to perform', 'to make oneself responsible for', 'to accept an obligation' etc. Looking at the circumstances of this case it cannot be said' that there was any doubt about the obligation of the respondent to vacate the premises which was being' resolved by a promise on his part to do the act by a certain date. There was already a decree for possession against him under which he had the obligation to leave the premises and make over possession of the same to the applicant herein, No doubt the liability as to. mesne profits was being quantified but construing the order I have no hesitation in holding that the respondent was binding himself to the Court to vacate the premises by October 1, 1960. If the words 'to Court' had appeared after the words 'upon the said respondent by his said Advocate undertaking' the ground for the argument advanced would have disappeared. The absence of the words 'to Court' does not, in my opinion, make any difference on the facts of this case. If the 'undertaking' was meant to be no more than a 'promise' by the party to the applicant before P. B. Mukbarji, J. there would have been no occasion for the promise to be made through -the advocate.

4. The learned Advocate-General drew my attention to two reported judgments of this Court in support of his contention that unless the undertaking is clearly expressed to be one given to this Court, it would be no more than an agreement between the parties. The first case cited by him is that of Nisha Kanto Roy v. Saroj Bashini : AIR1948Cal294 .

5. The facts in this case were as follows:

A suit was filed for ejecting the appellant from a room in premises No. 1A, Abhoy Goho Road, Calcutta. The plaintiff alleged that the appellant had wrongfully installed the images of Kali and Siva in that room. The suit was compromised by an agreement between the parties which was recorded in Court. By it the appellant admitted that he was a monthly tenant of the premises which he used as a meat shop. He further admitted that the images of Kali and Siva had been wrongfully brought to the said shop without the consent of the plaintiff respondent. The compromise contained the further following term:

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 said 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, Abhey Goho Road.

6. This was followed by a term whereby the appellant was allowed to continue as a monthly tenant of the room at a rent of Rs. 18/- per month. The compromise was presented to the Court and a decree was passed in terms of the compromise. Thereafter the respondent called upon the appellant to remove the image of Kali which was placed in the shop. The appellant declined to do so and the respondent applied to commit the appellant for contempt of Court on the ground that he had broken an undertaking which he had given to the Court to remove the image of Kali.

7. Gentle J. who heard the application came to the conclusion that the appellant had given the undertaking to the Court to remove the image of the deity and committed the appellant ordering that; he should be detained in prison for a period of one month unless he removed the image and the structures and paid certain sums to the respondent within a certain period.

8. In appeal Harries, C.J. construing the above paragraph observed that the said term of compromise was to be found in a document executed by two parties and the promises of the plaintiff were made to the defendant and vice versa, and, therefore, an undertaking contained therein to remove the image of a deity should not be treated as an undertaking to the Court but was to be taken only as an undertaking or promise to the plaintiff. His Lordship added 'It must be remembered that the Court at this stage was no party to the agreement'.

9. The other case relied on by the Advocate-General is that of Sukumar Mitra v. Tara Sankar Ghosh, : AIR1952Cal591 . This was a case very much like the above wherein the petitioner and the opposite party before this Court had filed a joint petition of compromise, the material clauses whereof were as follows:

Clause (3): The appellant Tarasankar Ghosh, opposite party, undertakes to Court to vacate and make over peaceful and vacant possession of the upper flat in premises No. 98A, Bakul Bagan Road to the petitioner, Sukumar Mitra, on or before the End January, 1952.

Clause (5): In case the appellant Tarasankar Ghosh fails to vacate the said upper flat in the said premises within the aforesaid period, the said respondent will be entitled to execute the decree For possession passed by the Court below on the 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 will not be entitled to raise any objection thereto or to be entitled to any further time on any grounds whatsoever.

10. The learned Judges of the Division Bench referred to a judgment of Chakravartti, J. in Haridas Basu v. Sakti Pada Mukherjee decided on the 26th February, 1952 and came to the conclusion that although there was an undertaking to Court, it was a qualified undertaking and, as such. proceedings in contempt were not available to the petitioner.

11. With due respect to the learned judges I find myself unable to accept the reasoning, given. Clause (3) above expressly recorded that the undertaking was given to the Court and it could not be said that although incorporated by the parties in the document of compromise the undertaking recorded was not given to the Court and was not meant to have its usual force and effect. Enforcement could be had of the obligation under Clause (3) either by an order for possession or for committal for contempt of Court or both. Clause (5) of the compromise, in my view, did not at all cut down the rights given by Clause (3) but merely stated what would have followed as a necessary consequence of Clause (3), that is to say, it would be open to the petitioner either to execute the decree for possession or to take such other steps as the law allowed him to take including an application for committal on the ground of contempt of Court for breach of the undertaking given.

12. So far as the judgment of Harries C.J. is concerned, it stands on a different footing altogether.

There the compromise was certainly between the parties and what the Court did was to record the agreement arrived at between them in the decree; there was thus at least reason for holding that although the word 'undertaking'1 was used in a paragraph of the compromise petition it was meant to be no more than an agreement between the parties.

13. Construing the order as a whole in this case, to my mind, it is sufficiently clear that the Court thought that the applicant was to be entitled to possession of the property and ordered accordingly but on the undertaking of the respondent given to it to vacate the premises on or before the 1st day of October 1960 and further undertaking to pay Rs. 500/- per month asmesne profits to the applicant's solicitors by the 1st of every month until delivery of possession the Court directed that the order for possession was not to be executed before the 1st of October, 1960.

14. There must have been negotiations between the parties before the above order was made and it is apparent that the applicant, although he was entitled to possession forthwith, was content to stay his hands in view of the undertaking or solemn assurance given by the respondent to vacate the premises by the date mentioned. The undertaking was given not by one party to another but on behalf of the party by his advocate. I cannot accept that such an undertaking was between the parties inter se and that the undertaking was not given to this Court. In my view, there has been a clear breach of the undertaking given to this Court and accordingly, there will be an order in terms of prayer (a) of the Notice of Motion.

15. So far as the undertaking to pay money is concerned, it is certainly open to the respondent to show that through no fault of his own or due to circumstances beyond his control he has been unable to pay, but so far as the undertaking to vacate is concerned, I have no doubt that contempt of this Court was committed. I will, therefore, make an order directing the respondent to pay a fine of Rs. 1,000/-. If he carries out his undertaking given to this Court and vacates the property and puts the applicant in possession thereof within a week from date, there will be no further punishment but if he fails to do so, he will suffer imprisonment for two months. The applicant will have the costs of this application. EE/C. Order accordingly.


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