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Lala Shyam Sundar v. Lala Baij Nath Prasad.
Structured Summary of the Opinion (Bachawat, J.)
Factual and Procedural Background
This is an appeal from an order committing the appellant for contempt of court. The originating proceedings were a suit for partition (Suit No. 4 of 1926) in the Small Causes Court, Allahabad, which resulted in a final decree on 13 January 1939. By an appellate decree of the Allahabad High Court dated 6 December 1949, premises No. 6 Shibu Thakur Lane, Calcutta, among other properties, were allotted to the respondent. The decree provided that the parties would be put in possession forthwith and was transmitted to the Calcutta High Court for execution.
On 15 February 1958 the respondent filed a tabular statement in the Calcutta High Court seeking execution by delivery of possession and eviction of the appellant. On 12 June 1958 an order for possession was made. The appellant obtained a stay which was vacated by order dated 5 May 1959, rendering the possession order enforceable. When the appellant resisted delivery of possession, the respondent applied under Order XXI, Rule 98 CPC; on 22 September 1959 the court made an order which recorded an undertaking (described in the order) to vacate the premises by 1 October 1960 and to pay mesne profits, and the court stayed execution of the possession order until that date on the faith of that undertaking.
The appellant did not vacate the premises nor pay the stated sums. On 16 November 1960 the respondent's attorneys moved for committal for contempt for breach of the undertaking. G.K. Mitter, J. found the appellant guilty of contempt and by order dated 25 January 1961 fined the appellant Rs. 1,000 and directed that if the appellant vacated the premises within a week there would be no further punishment, but failing that the appellant would be committed to two months' imprisonment for contempt. The appellant appealed against that order.
Legal Issues Presented
- Whether the undertaking recorded on 22 September 1959 constituted an undertaking to the court (so that its breach amounts to contempt).
- Whether the presence in an order of prescribed consequences for breach of an undertaking prevents committal for contempt for breach of that undertaking.
- Whether the committal application was maintainable where the notice of motion was not served personally on the appellant (i.e., whether insufficient personal service rendered the committal application invalid).
Arguments of the Parties
Appellant's Arguments (as stated in the opinion)
- Counsel for the appellant (Mr. Ghosh) contended that because the formal order dated 22 September 1959 did not expressly state that the undertaking was given to the court, the undertaking was merely a promise to the respondent (another party) and not an undertaking to court; accordingly breach could not attract committal for contempt.
- It was also contended that because the order provided for consequences of breach of the undertaking, the appellant could not be committed for contempt (reliance on cases holding that prescribed penalties or remedies in the order give the party a choice and avoid absolute obligation to the court).
- Finally, the appellant argued that the application for committal should be dismissed because the notice of motion was not served personally upon the appellant.
Respondent's Position (as reflected in the application and court's treatment)
- The respondent sought execution of the decree by delivery of possession and, upon the appellant's resistance and breach of the recorded undertaking, applied for committal for contempt on the ground of breach of that undertaking.
- The court and respondent treated the undertaking recorded on 22 September 1959 as given to the court and relied upon by the court in staying execution until 1 October 1960; therefore breach constituted misconduct amounting to contempt.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prokash Chandra Mukherji v. Manindra Nath Mukherji, I.L.R. (1946) 2 Cal. 499 | An undertaking incorporated in a decree may be construed as an undertaking given to the court in the technical sense. | The court relied on this authority to support the conclusion that an undertaking recorded in court proceedings (or in the body of an order) can be an undertaking to the court and enforceable for breach by committal. |
| Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho, A.I.R. 1948 Calcutta 294 | Where a compromise negotiated outside court contains an undertaking not expressed as one given to the court, it should prima facie be construed as an undertaking to the other party (not to the court), and breach may not attract committal. | The court distinguished this case on the facts: the instant undertaking was not part of an out-of-court compromise but was given in open court and the court acted upon it by staying execution; therefore Nisha Kanto Roy Chowdhury did not control the present case. |
| Haridas Basu v. Sakti Pada Mukherjee, Misc. Case No. 276 of 1951 (decided 26 Feb 1952, unreported) | Where an order prescribes a penalty or consequence for breach of the undertaking, that may give the party a choice and not impose an absolute obligation enforceable by committal. | The court treated this decision as distinguishable because in the present case the order did not prescribe consequences for breach of the undertaking; the stay was granted on the faith of the undertaking and the order for possession itself was unconditional. |
| Sukumar Mitra v. Tara Sankar Ghosh, 56 C.W.N. 580 | When a decree provides for consequences of default under a compromise, there may be no unqualified undertaking to court and breach may not attract committal. | The court distinguished Sukumar Mitra on similar grounds: the decree in the present case did not provide the consequences of a default that would negate an unqualified undertaking to the court. |
| Susetannessa Bibi v. Chintaharan Das, 95 C.L.J. 199 | Where the consequences of the breach are not provided for in the undertaking or order, the party giving the undertaking may be liable to be committed for contempt for its breach. | The court relied on this principle to support the proposition that because the September 22, 1959 order did not provide consequences for breach, committal was available for breach of the undertaking. |
Court's Reasoning and Analysis
The court proceeded in a stepwise manner, applying legal principles identified in the authorities cited and the factual record of the order of 22 September 1959.
-
Character of the Undertaking:
The court examined whether the undertaking recorded on 22 September 1959 was an undertaking to the court. It noted that the undertaking was placed in the introductory part of the order and that the substantive part expressly stated that, upon the undertaking, the court had directed a stay of execution for a limited period. On this basis the court concluded that the undertaking was given to the court and that the court had relied on it in staying execution.
The court relied on the practice referred to in Seton's Forms of Judgments and Orders (as quoted in the opinion) and on Prokash Chandra Mukherji (ILR 1946 2 Cal. 499) to support the reading that undertakings recorded in court proceedings can be technical undertakings to the court enforceable by committal.
-
Distinguishing conflicting authority:
The appellant's reliance on Nisha Kanto Roy Chowdhury (A.I.R. 1948 Calcutta 294) was considered but rejected as distinguishable: in that case the undertaking was part of a compromise negotiated outside court and not expressed as an undertaking to the court; here the undertaking was given in open court and the court itself stayed execution upon it.
-
Effect of prescribed consequences:
The appellant argued that because the order provided for consequences of breach, committal was not available. The court observed authorities (Haridas Basu and Sukumar Mitra) where orders prescribed penalties or permitted specified remedies on default, leading to a finding that there was no unqualified undertaking to the court. The court held these authorities distinguishable because, in the present case, the order for delivery of possession was unconditional and the stay of execution was granted on the faith of the undertaking; the order did not itself provide specific consequences for breach of that undertaking (such as an express right for the respondent to execute or a prescribed penalty), and therefore the undertaking remained an unqualified obligation to the court enforceable by committal.
-
Service of notice:
The court addressed the appellant's contention regarding non-personal service of the notice of motion. The record showed service on the appellant's attorneys and, after unsuccessful attempts, affixation on the appellant's outer door. The appellant alleged non-service in an affidavit but did not press the objection at the hearing; no objection was taken on the returnable date nor was it pursued in the lower-court judgment or the memorandum of appeal. The court treated the objection as waived and referred to authorities (Oswald on Contempt; Halsbury on Contempt, Article 66) that such objections may be waived by the contemner.
-
Conclusion on guilt and punishment:
Having concluded that the undertaking was given to the court, that the court had acted upon it, and that there had been a deliberate and unexplained breach (no offer to vacate or to pay the sums due), the court agreed with G.K. Mitter, J.'s finding that the appellant was guilty of contempt. The court found the punishment previously imposed to be just but, because of an existing stay by an appellate court, modified the timeframe within which the appellant could avoid imprisonment by carrying out the undertaking.
Holding and Implications
Core Holding: The appeal is dismissed and the order committing the appellant for contempt is affirmed subject to a modification of the period within which the appellant may avoid imprisonment.
Precise Disposition (as stated in the opinion): The appeal is dismissed with costs. The order appealed from is affirmed in all its parts except that the appellant shall not suffer the punishment of imprisonment if he carries out his undertaking given to the court and vacates the property and puts the respondent in possession thereof within one week from the date of the judgment.
Implications: The direct effect is that the appellant remains liable for the contempt order subject to the one-week opportunity to perform the undertaking and thereby avoid imprisonment. The opinion distinguishes earlier authorities on the facts and applies the principle that an undertaking given to the court and relied upon by the court (for example, to obtain a stay of execution) is enforceable by committal if breached. The opinion does not purport to announce any new principle beyond these applications; it applies existing authorities to the facts and affirms the lower court's exercise of contempt jurisdiction.
Concurrence: A.K. Mukherjea, J. agreed with the judgment.
Bachawat, J.:— This is an appeal from an order committing the appellant for contempt of court. On January 13, 1939 a final decree was passed in suit No. 4 of 1926 instituted in the court of the Judge, Small Causes Court, Allahabad, for partition of the joint family business and properties belonging to the parties to the suit and eventually by the appellate decree, passed by the Allahabad High Court, on December 6, 1949, premises No. 6 Shibu Thakur Lane, Calcutta, as also other properties were allotted to the respondent. The decree provided that the parties would be put in possession of the properties forthwith. The decree was transmitted to the Calcutta High Court for execution. On February 15, 1958, a tabular statement was filed in the Calcutta High Court by the respondent for execution of the decree by delivery of possession of premises No. 6 Shibu Thakur Lane by evicting the appellant from the premises. On June 12, 1958 an order for possession was made in terms of the tabular statement.
1. The appellant took various proceedings for setting aside the order for possession and obtained a stay order, and ultimately by an order dated May 5, 1959 the stay order was vacated, with the result that the order for possession became enforcible. The appellant having offered resistance to the delivery of possession of the premises, the respondent made an application under Order 21, Rule 98 C.P.C Upon this application the court passed the order dated September 22, 1959, the material portion of which reads 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 the premises No. 6, Shibu Thakur Lane, Calcutta * * * *” “And it is further ordered that the said Sheriff do take police help if 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 the 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.”
2. The appellant did not carry out the undertaking mentioned in (the aforesaid order. He did not vacate premises No. 6, Shibu Thakur Lane on or before the 1st October, 1960. He has not vacated the premises even now. Nor did he pay any moneys in terms of the undertaking. On November 16, 1960 the attorneys for the respondent took out a notice of motion praying for an order that the appellant be committed for contempt of court for breach of the aforesaid undertaking. G.K Mitter, J. found that the appellant was guilty of contempt of court for breach of the undertaking to vacate the premises and passed the order dated January 25, 1961 directing the appellant to pay a fine of Rs. 1000/- and also directing that in the event of the appellant carrying out his aforesaid undertaking and vacating the premises and putting the respondent in possession thereof within one week from the date of the order, there should be no further punishment but in the event of the appellant failing to do so he should stand committed to prison for two months for contempt of Court.
3. On behalf of the appellant Mr. Ghosh argued that, as the formal order dated the 22nd September, 1959, did not expressly state that the undertaking was given to the court, the undertaking was a promise made to the respondent for the breach of which the appellant could not be committed for contempt of court. We cannot accept this contention.
4. It is well settled that the breach of an undertaking given to the court by any person in pending proceedings on the faith of which the court sanctions a particular course of action or inaction is misconduct amounting to contempt. The point in issue is whether the undertaking given on September 22, 1959, is an undertaking to court on the faith of which the court sanctioned some course of action or inaction. Now the court frequently proceeds upon undertaking given by parties and it is common practice to insert the undertaking in the body of the order before the ordering part to which it relates so that in the event of breach it may be enforced by a writ of attachment, see, Senton's Forms of Judgments and Orders, 9th Edition Vol. I, pages 124 and 162. In the instant case the undertaking in question was inserted in the introductory part of the order and in the substantive part of the order it was stated that upon the undertaking given as aforesaid, the court had directed the stay of execution of the order for a limited period. Plainly the undertaking was given to Court. On the faith of the undertaking the court sanctioned the stay of execution of the order. A reference to Seton's Forms of Judgments and Orders shows that an undertaking given to court in the technical sense is often expressed in formal judgments and and orders as a simple “undertaking”. In Prokash Chandra Mukherji v. Manindra Nath Mukherji, (1) I.L.R (1946) 2 Cal. 499, an undertaking incorporated in a decree was construed as an undertaking given to the court in the technical sense. Strong reliance is placed by Mr. B.K Ghosh upon the case of Nisha Kanto Roy Chowdhury… v. Smt. Saroj Bashini Goho…., (2) A.I.R 1948 Calcutta 294. In that case one A, the owner of certain premises brought a suit for ejectment against the lessee B on the ground that the latter had installed a certain image on the premises without A's consent. The suit was compromised. By the compromise B undertook to remove the image before giving up possession of the premises or at any time prior thereto on demand by A. The compromise was presented to the court and a decree was passed in terms of the compromise. B subsequently declined to remove the image on demand by A Harries, C.J and B.K Mukherjea, J. held that an under taking in a compromise negotiated out side court and not expressed as one given to the court should prima facie be construed as an undertaking to the other party and not to the court, though the compromise is intended to be filed in court, and though it is so filed and a decree is passed in terms thereof, and that B not having given an undertaking in the court was not liable to be committed for contempt of court for its breach. This decision is entirely distinguishable. In the instant case, the undertaking does not form part of any compromise nor is it the result of any bargain between the parties. The undertaking was given in open court and relying upon it, the court sanctioned the stay of execution of the order for delivery of possession for a limited period. Mr. Ghosh next contended that as the order dated September 22, 1959 provided for the consequences of the breach of the undertaking, the appellant is not liable to be committed for contempt of court for the breach. We are unable to accept this contention. The cases relied upon by Mr. Ghosh are entirely distinguishable. In Miscellaneous Case No. 276 of 1951 (Haridas Basu v. Sakti Pada Mukherjee) (3) decided on the 26th February, 1952 (unreported) a rule for stay of further proceedings by way of delivery of possession to a receiver appointed by court was made absolute and an order for stay during the, pendency of the appeal was made on certain conditions including an undertaking given by the petitioner to preserve the property in proper condition pending the hearing of the appeal and the order provided that in default of compliance with those conditions, the rule would stand discharged with costs. Chakravartti and Sinha, JJ. held that as the order prescribed the penalty for the breach of the undertaking, it gave the petitioner a choice and did not impose any absolute obligation upon him in respect of the undertaking and consequently he was not liable to be committed for contempt of court for its breach. In Sukumar Mitra v. Tara Sankar Ghosh, (4) 56 C.W.N 580 an appeal was disposed of in accordance with the terms of a joint petition of compromise and the appellate decree provided that the joint petition do form part of the decree and the parties do govern themselves and be bound by the terms thereof. By the terms of the compromise the appellant undertook to court to vacate and make over peaceable and vacant possession of certain premises by the 2nd January, 1952, and that in case of his failure to vacate the premises within the period aforesaid, the respondent would be entitled to execute the decree for possession passed by the court below and to take such steps against the appellant as he might be advised. The appellant failed to vacate the premises by the 2nd January, 1952. Das and Lahiri, JJ. held that as the decree provided for the consequences of the default, there was no unqualified undertaking and the appellant was not liable to be committed for contempt of court for the breach. But the party giving the undertaking is liable to be committed for contempt of court for its breach if the consequences of the breach are not provided for in the undertaking or the order, see Susetannessa Bibi v. Chintaharan Das, (5) 95 CLJ 199. In the instant case on September 22, 1959, the court passed an unconditional order for delivery of possession of the premises and also an order for stay of execution of the order for a limited period on the faith of the undertaking given by the appellant. The order did not provide for the consequences of the breach of the undertaking either to pay the moneys or to vacate the premises. The court expected that during the period of the stay, the appellant would vacate the premises and if he did so, no further question of delivery of possession would have arisen. But the order for delivery of possession was passed unconditionally; execution of the order was not expressed to be conditional on the breach of the undertaking.
5. Mr. Ghosh next contended that the application for committal for contempt of court is liable to be dismissed, as the notice of motion was not served upon the appellant personally. There is no substance in this contention. The notice of motion was served upon the attorneys of the appellant and was also served upon the appellant by affixation on the outer door of the appellant's residence after three unsuccessful attempts to serve him. No objection to the maintainability of the application on the ground of non-service of the notice of motion upon the appellant personally appears to have been taken on the returnable date. In paragraph 2 of the affidavit-in-opposition affirmed by the appellant it was alleged that the notice of motion had not been served upon him. But at the hearing of the application this objection was not pressed. There is no mention of this objection either in the elaborate judgment of G.K Mitter, J. or in the memorandum of appeal. We are satisfied that the appellant waived the present objection. For that reason the objection is not mentioned either in the judgment or in the memorandum of appeal. Such an objection is capable of being waived by the contemner—vide Oswald on Contempt, 3rd Edition, page 205, Halsbury on Contempt, 3rd Edition, Article 66, page 39.
6. No other argument was advanced by Mr. Ghosh before us. We are satisfied that there is a clear and deliberate breach of the undertaking given by the appellant to the court to vacate the premises. There is no excuse for the breach. Even now the appellant has not offered to vacate the premises. The appellant is guilty of misconduct amounting to contempt of court. We are satisfied that G.K Mitter, J. passed a just punishment on the appellant and that his order should be affirmed. In view of the stay order passed by the appellate court we must modify the time fixed by the order appealed from within which the appellant may still carry out the undertaking in order to avoid the imprisonment.
7. We pass the following order:
The appeal be and is hereby dismissed with costs. The order appealed from is affirmed in all its parts except that we direct that the appellant shall not suffer the punishment of imprisonment if he carries out his undertaking given to the court and vacates the property and puts the respondent in possession thereof within a week from today. Certified for two Counsel.
A.K Mukherjea, J.:— I agree.
S.N.G
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