Kailash Chander Sharma v. Nirmala Wati (Mrs.).

Vikramajit Sen, J.— This application under Order XXII Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C’) has been filed by the Respondent/Landlord for bringing the legal heirs of the deceased-Respondent Smt. Nirmala Wati on record, who died on 6.11.2000 The application has been filed on 23.1.2001, that is, within the prescribed period. It has been objected to by the Petitioner/Revisionist/Tenant on the ground that the cause of action does not survive or devolve on any person as eviction had been obtained under the provisions of Section 14 (D) of the Delhi Rent Control Act (hereinafter referred to as ‘the Act’). This objection is without merit since a valuable right has fructified in favour of the deceased the fruits of which can be enjoyed by her legal heirs. The next objection is that since the Revision Petition has already been decided on 18.2.2000, the provisions of Order XXII Rule 4 are inapplicable. This objection is also without merit for the reason that while dismissing the Revision Petition this Court had granted indulgence to the tenant by accepting his undertaking to vacate the premises on or before 31.12.2000 The tenant has failed to abide by his undertaking thus necessitating the filing, of the accompanying application bearing No. 218/2001 under Order XXVI Rule 9 of C.P.C It is, therefore, necessary that the legal heirs are impleaded before CM, 218/2001 under Order XXVI Rule 9 can be taken into consideration.

2. The application is, therefore, allowed. As prayed for the persons mentioned in paragraph 5 of the application are impleaded as Respondents 1A to 1E. Amended Memo of Parties be filed within one week.

CM. 218/2001.

3. This application under Order XXVI Rule 9 read with Section 151 of C.P.C has been filed by the Respondents. The tenant had filed a Revision Petition against the order of eviction dated 22.5.1999 passed by the Additional Rent Controller under Section 14 (D) of the Act. The Revision Petition did not find favour with Vijender Jain, J. and, therefore, on the first date of hearing, 19.7.1999, notice was issued limited to the question of grant of time till 31.12.2000 On 10.1.2000 Madan B. Lokur, J. had directed the Petitioner/Tenant to file an undertaking to the effect hat he will vacate the premises on or before 31.12.2000, that he will pay water and electricity charges and he will maintain the premises inhabitable condition. An affidavit and the undertakings contained therein was accepted by the Court. Contrary to the undertaking, possession of the property till date has not been handed over to the Respondents. Prima facie, I am of the view that the Petitioner is guilty of committing contempt of the Orders of this Court. Issue notice under the Contempt of Courts Act to Shri Kailash Chander Sharma, returnable on 16.5.2001 It is also evident that Shri Shiv Kumar Sharma is instrumental and privy to the violation/non-compliance of the undertakings accepted by this court and hence notice will simultaneously issue to him also.

4. It is in these circumstances that the Respondents have prayed for the appointment of a Local Commissioner with directions to obtain vacant and peaceful possession of the tenanted premises and to handover possession thereof to the Respondents. This application has been strongly contested by Shri Dil Raj Kumar, learned counsel appearing on behalf of Petitioner/Tenant. His contention was that eviction was granted under Section 14 (D) of the Act in favour of Smt. Nirmala Wati. Since she has passed away, the Decree being personal in nature cannot be executed; her need does not exist any further. Although no Reply has been filed to this application, the Reply to the preceding application under Order XXII Rule 4 has been supported by the affidavit of Shri Shiv Kumar Sharma, who is stated to be the younger brother of Shri Kailash Chander Sharma and in possession of the property in question. The contention of Mr. Dil Raj Kumar, learned counsel for the Petitioner, is that Shri Shiv Kumar Sharma was residing in the premises from the inception as is evident from his Ration Card. It is argued that the Decree ought not to be executed against Shri Shiv Kumar Sharma. It is further submitted by Shri Dil Raj Kumar, learned counsel for the Respondent, that whereas a Decree under Section 14(1)(e) of the Act can be executed in favour of the legal representatives of the deceased Applicant, this is not possible under Section 14 (D) of the Act. It is further contended that the undertaking has expired on 31.12.2000 and no action is called for at this stage. The legal heirs should initiate execution proceedings in the Lower Court in which Shri Shiv Kumar Sharma would then be entitled to file objections.

5. In response, Mr. Sandeep Sethi, learned counsel appearing on behalf of Respondents, has submitted that it is not expected of this Court to go behind the Decree of eviction. My attention was drawn to a decision of a Division Bench of this Court in Sita Ram v. Jai Babu, 1973 R.C.R 664. Even though the landlord's requirement had ceased to exist at the time of execution of decree passed on the grounds of his bona fide requirement, it was held that the principles of res judicata applied and that the Court would be precluded from going behind the decree. In the present case, therefore, on the passing of the eviction order under Section 14 (D) of the Act, the subsequent demise of the original Applicant would not render the decree unexecutable by Court. The undertaking has been accepted by the Court and on the failure to comply therewith, it is in the interest of justice that the Court should take whatever action it considers appropriate for the expeditious compliance of its Orders. He has further relied on the decision rendered in Noorali Babul Thanewala v. K.M.M Shetty & Others., (1990) 1 SCC 259. It was observed as follows:

“11. When a court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the court by or on behalf of a party to a civil proceedings, is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sentence of imprisonment or fine or all of them. On the facts and circumstances of this case in the light of our finding that there was a breach of the undertaking we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing respondent 1-contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same.

12. In the foregoing circumstances, we find respondent 1 guilty of committing contempt by wilful disobedience of the undertaking given by him in this Court and accordingly we convict him and sentence him to pay a fine of Rs. 500 within the period of four weeks, failing which he shall suffer simple imprisonment for one month, and also direct him to deliver vacant possession of the premises forthwith to the petitioner to the extent possible by him. We further direct the District Magistrate, Thane, to evict all those who are in physical possession of the property including respondent 2 and his men and if necessary with police help and give vacant possession of the premises to the petitioner forthwith”.

6. Mr. Sethi correctly relied on the decision rendered in Firm Ganpat Ram Rajkumar v. Kalu Ram and others, 1989 Supp. (2) SCC 418. He further relied on the decision rendered in Shashi Kapur v. O.P Gogne and others, AIR 1982 Delhi 245, in which the Court held that it had power under Section 151 of the Code of Civil Procedure to appoint a Local Commissioner to enforce an interim order of injunction passed by it. Mr. Sethi also took the support of the decision of a single Judge rendered in I.A 10567/97 in CCP No. 130/97 entitled Liberty Sales Service v. Jakki Mal & Sons and Anr., In this case it has been observed as under:

“11. Even supposing that on account of wrong legal advice the plaintiff have blatantly failed to comply the direction, there is no reason why they should not at least not comply or be forced to comply the mandatory injunction to remove the stock, furniture and decorative material from the premises in which the plaintiffs have no right to stay.

12. No court is supposed to allow any party to mislead the court and thereby frustrate such orders for allowing to do so “would indeed be subversive of Rule of Law and would seriously erode, the dignity and authority of the court”. Here in this case, this court is supposed to maintain its own dignity and authority as well as dignity, prestige and authority of the Supreme Court. This court cannot afford to be a silent spectator in blatant disregard for the directions, while the plaintiffs are making an all out effort to frustrate such directions, and to mock at not only on the order of this court but on the orders of the Supreme Court also.

13. In the peculiar situation, this court is duty bound to ensure at least the compliance of the orders passed by the Hon'ble Supreme Court in SLP No.………./97 (CC 2780) dated 21st March, 1997 read with order in FAO No. 398/96 dated 25th February, 1997 and see “stock furniture and ornamental items” are removed from premises No. E-37, Connaught Place, New Delhi.

14. Accordingly, I appoint Shri P.C Dhingra, advocate as Local Commissioner to cause removal of the stock, furniture, ornamental and decorative items of the plaintiff from premises No. E-37 Connaught Place, New Delhi in case plaintiffs themselves fail to remove within 24 hours. He may visit the premises in suit premises No. E-27 Connaught Place, New Delhi on 29th May, 1998 for this purpose, may break open the locks in case of necessity, may prepare an inventory of the stock, furniture and ornamental decorative items of the plaintiff in the premises and remove them from the premises. For this purpose, he may take police assistance also to ensure peaceful removal of stock furniture and ornamental items of the plaintiffs.”

7. The above decision was assailed before the Division Bench in FAO (OS) 143/98 and Caveat 62/98 entitled Liberty Sales Service v. Jakki Mal & Sons and Another but it was observed therein that “there is no substance in the appeal. Even the conduct of the Appellant has been reprehensible.”

8. I am convinced that the application is meritorious and calls to be allowed forthwith. Undertakings accepted by the Court must be scrupulously complied with. I accordingly appoint Shri Hari H. Guin, Advocate, C-39, South Extension Part I, New Delhi-110049 as the Local Commissioner. He is directed to forthwith take possession of property No. 255, Ambika Vihar, Near Sayed Gaon, Delhi-110041 by ejecting all occupants therein. He is further directed to remove all the furniture and personal belongings etc. from the aforesaid premises and store them in appropriate premises or release them on superdari to the erstwhile occupants of the premises.

9. The DCP and SHO of the area are directed to provide all necessary police help for the aforesaid premises.

10. The keys of the premises shall be handed over to the Respondents. The Local Commissioner shall receive a fee of Rs. 15,000/- from the Respondents/Applicants.

The application is allowed accordingly.

Dasti.