Judgment:
R.R. Yadav, J.
1. The present contempt petition stems from summary dismissal of Second Appeal No. 117/93 on 18.8.93 allowing one year's time to tenant contemner for vacating the suit shop from the date of dismissal of the Second Appeal provided he furnished an undertaking to the effect that he will hand over vacant and peaceful possession of the suit shop on or before 18th August, 1994 and further that he will not part with or deliver the possession of the suit-shop to any other person than the land lord. The tenant contemner was further to undertake that he will pay to the land lord mesne profits for use and occupation of the premises at the rate at which rent was payable in respect of suit premises regularly month by month until he physically delivered the vacant possession of the suit-shop to the land lord. The tenant-contemner was directed to execute the undertaking within 1 month from the date of the order in the executing court.
2. Indisputably, the tenant-contemner even after executing an undertaking in pursuant to the order dated 18.8.93, has not handed-over vacant possession of the suit-shop to the decree-holder land lord.
3. Brief facts leading upto filing of the present contempt petition, Civil Misc. Writ Petition No. 4220/94, Civil Suit No. 182/94 (27/95) and execution No. 5/93 are that the land lord-plaintiff-petitioner in Contempt petition (hereinafter referred as land lord decree-holder) had filed a suit for eviction against tenant-defendant-appellant contemner (hereinafter referred as tenant contemner) on the ground that he has committed default in payment of rent within the terms of Clause (a) of Sub-section (1) of Section 13 of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'Act No. 17 of 1950'). It was further pleaded by land-lord decree holder that the tenant-contemner having already obtained the benefit of provisions of Section 13(6) of the Act No. 17 of 1950 in the previous suit No. 122/77, which was also founded on the ground of default, was not entitled to the benefit of Section 13(6) of the aforesaid Act. In subsequent suit it was held by both the Courts below that the tenant-contemner has committed default and that being a second default he was not found to be entitled to the benefits contemplated under Sub-section (6) of Section 13 of Act No. 17 of 1950, hence decree for eviction was passed by both the Courts below against him.
4. The only ground which was argued on behalf of tenant contemner in Second Appeal No. 117/93 was that he the previous suit, the decree was based on a compromise between the parties and the Court had not recorded any finding that the tenant contemner had committed default, therefore, it cannot be said that he has already obtained benefit under Section 13(6) of the Act No. 17 of 1950 in previous suit mentioned in preceding paragraph. It was contended before the learned Single Judge in the aforesaid Second Appeal on behalf of tenant contemner that unless a finding of default against him was recorded in the previous suit for eviction on the ground of default in payment of rent there cannot be any occasion for refusing benefit under Section 13(6) of aforesaid Act in the subsequent suit by both the Courts below.
5. The Learned Single Judge in his order dated 18.8.93 after critically examining the aforesaid contention advanced on behalf of tenant contemner negatived the aforesaid argument and held that it is well established now that even where a decree for eviction is based in terms of compromise the decree must be founded on one or more of the grounds envisaged under Section 13 of Act No. 17 of 1950. It was also held by the learned Single Judge that such satisfaction of the Court about the existence of grounds for eviction can be inferred from the admission of the parties, contained in a deed of compromise. In the Second Appeal mentioned above it was found by the learned Single Judge that though the earlier decree was not a decree for eviction even in the agreement between the parties, it was clearly stated that suit was based on ground of default and the defendant was entitled to benefits under Section 13(6) of Act No. 17 of 1950, that is to say, that both the parties agreed that in view of provisions of Section 13(6) of Act No. 17 of 1950 the tenant contemner was entitled to protection from a decree for eviction under the Act, therefore, the land lord decree holder got the suit dismissed in terms of settlement on that ground alone. It was not disputed before learned Single Judge in the aforesaid Second Appeal that in the earlier suit, the Court had determined the amount of rent under Section 13(3) of Act No/17 of 1950 and thereafter, the tenant contemner had deposited the said amount in the Court and the compromise was arrived at between them only thereafter.
6. In the aforesaid facts and circumstances, it was found by the learned Single Judge in his judgment dated 18.8.93 that the tenant contemner had already taken the benefit of Section 13(6) of the Act No. 17 of 1950 in the earlier suit, therefore both the Courts below were right in holding that he was not entitled to the benefit of Sub-section (6) of Section 13 of the said Act in the subsequent suit from which, aforesaid Second Appeal was filed. On the aforesaid findings the Second Appeal was dismissed by the learned Single Judge which has attained finality.
7. It would be pertinent to observe that travesty of Justice began in the present case when after expiry of period of one year vacant possession of suit-shop was not handed over by the tenant-contemner to the land lord decree holder within the terms and conditions of undertaking executed by him before executing Court.
8. It is borne out from the record that one Shri Karan Raj Giriya filed a Civil Suit No. 182/94 (27/95) along with an application under Order 39 Rule (1) and (2) C.P.C. for interim injunction and on the basis of interim injunction granted by the learned trial Court in the aforesaid civil suit the executing court could not be able to proceed with the execution number 5/93. It is further borne out from the record that at subsequent stage the ad interim injunction granted by learned trial Court in the aforesaid suit was vacated then thereafter same Shri Karan Raj Giriya through same counsel Shri Akshay Parekh filed Civil Misc. Petition No. 4220/94 in this Court and again obtained ex parte ad interim stay order on 2.9.94 which is in operation till today.
9. The present contempt petition was posted before me on 22.01.97 and on that day it was argued by Shri O.P. Pungaliya, learned Counsel appearing on behalf of land lord decree holder that in pursuance of the order dated 18.8.93 the tenant contemner had executed an undertaking before the executing Court on 24.9.93. It was also brought to my notice that even after executing an undertaking before the executing Court, the tenant contemner has not handed over vacant possession of the premises to the land lord decree-holder.
10. On the aforesaid argument of Mr. Pungalia, learned Counsel appearing on behalf of land lord decree holder I was prima facie satisfied that the tenant contemner has committed, wilful and deliberate disobedience of the undertaking given by him and as such he is liable to be prosecuted and punished for contempt of Court. After recording aforesaid prima facie finding against tenant contemner bailable warrant for a sum of Rs. 10,000/- was issued against him to ensure his attendance before the Court on 25.2.97 and also to report compliance of undertaking given by him before executing Court. The executing Court was also directed to get the decree executed with police assistance and report its compliance on 25.2.97.
11. On a later date it was brought to my notice by Shri Akshey Pareek, appearing on behalf of tenant contemner that due to unavoidable circumstances the counsel for tenant contemner was not present and the aforesaid ex parte order was passed on 22.1.97 without affording an opportunity of hearing either to the contemner or to his counsel. The learned Counsel for tenant contemner Shri Akshay Parikh brought to my notice that order dated 22.1.97 has been obtained from the court concealing the pendency of civil suit and S.B.C. Misc. Writ Pet. mentioned above together with ad interim order dated 2.9.94 passed by a learned Single Judge of this Court which is in operation till today.
12. On the aforesaid argument of Mr. Pareek, the execution of the decree by police assistance was kept in abeyance upto 16.2.97 and on subsequent date after hearing the learned Counsel for both the parties it was found by the Court that pendency of C.M. Petition No. 4220/94 including interim order passed therein which is operative even today and pendency of Civil Suit No. 182/94 (27/95) are two obstacles in passing effective order in contempt petition. So it was held that as writ petition is not cognizable by me as per daily cause-list prepared under the authority of Hon'ble the Chief Justice hence the matter be placed before Hon'ble the Chief Justice for passing an appropriate order in the facts and circumstances of the present case as his Lordships may think fit and proper.
13. When the matter was placed before Hon'ble the Chief Justice, His Lordships was pleased to nominate this Court to decide the whole controversy between the parties. This is how, the present contempt petition, Civil Misc. Petition No. 4220/94 and Civil Suit No. 182/94 (27/95) are listed before me.
14. I have heard the learned Counsel for the parties. Perused the materials on records.
15. Learned Counsel appearing on behalf of contemner Shri Akshey Pareek candidly made a statement that in view of the decision rendered by the Apex Court in case of Babulal v. Raj Kumar and Ors. reported in : [1996]2SCR763 , the decision rendered by learned Single Judge of this Court in case of Ramkishore v. Smt. Mannaver Begum and Ors. reported in 1997 (1), WLC (Raj.) 272 together with a decision rendered by the same learned Single Judge of this Court in case of Smt. Sarita Gupta v. Sudhir Jaju and Ors. reported in 1996 DNJ (Raj.) 685, the present writ petition No. 4220/94 is not maintainable, therefore, it may be dismissed as not pressed.
16. In view of the aforesaid statement made by Shri Akshey Pareek, learned Counsel for Shri Karan Raj Giriya, petitioner, the present Civil Misc. Writ Petition No. 4220/94 is liable to be dismissed as not pressed.
17. A pointed question was asked to the learned Counsel appearing on behalf of Karan Raj Giriya, petitioner in S.B.C. Misc. Writ No. 4220/94 Shri Akshey Pareek who is also engaged by him as counsel in civil suit No. 182/94 (27/95) as to how the aforesaid civil suit is maintainable in view of decision rendered by Apex Court in case of Babulal (supra) and aforesaid two decisions rendered by a learned Single Judge of this Court. Learned Counsel Mr. Akshey Pareek has candidly conceded that in view of aforesaid decisions the civil suit is also not maintainable.
18. In view of the aforesaid facts and circumstances, I consider it just and proper in the interest of justice and also to prevent abuse of the process of the Court to issue a writ of certiorari, quashing the proceedings of Civil Suit No. 182/94 (27/95) on the ground that the suit is not maintainable in view of mandatory provisions envisaged under Order 21 Rule 101 CPC. Learned Counsel for plaintiff Karan Raj Giriya Shri Parikh has no objection if the proceedings of Civil Suit No. 182/94 (27/95) are quashed by issuing a writ of certiorari by this Court to prevent abuse of the process of Court and also to advance substantial justice between the parties.
19. Learned Counsel appearing on behalf of land lord decree holder Shri M.R. Singhvi and Shri O.P. Pungaliya streneously urged before me that in view of decision rendered by the Apex Court in case of Jahurul Islam v. Abul Kalam and Ors. reported in AIR 94 SC 1403, the tenant contemner is liable to be punished for wilful and deliberate disobedience of undertaking given by him before the executing Court.
20. I am not impressed with aforesaid argument of the learned Counsel for petitioner. The facts and circumstances of the decision rendered by Apex Court in case of Jahurul Islam (supra) are not applicable to the facts and circumstances of the present case. It is to be noticed that in case of Jahurul Islam (supra) there was no judicial order passed by any Court of law for maintaining status quo whereas in the present case there is ad interim judicial order passed by the learned Single Judge of this Court which is operative even today. Here in the present case after expiry of one year when delivery of vacant possession of suit-shop became due by tenant contemner to the land lord decree holder in terms of undertaking executed by him the civil court passed interim injunction of status quo in exercise of its colourable power under Order 39 Rule 1 and 2 CPC in Civil Suit No. 182/94 (27/95) and when it was vacated a Civil Misc. Writ Petition No. 4220/94 was filed and again ex-parte ad interim stay order of status quo was granted by the learned Single Judge of this Court in colourable exercise of his jurisdiction under Article 226 of the Constitution in utter ignorance of pendency of civil suit mentioned appeal. Suffice it to observe that the petitioner obtained ex parte ad interim order in the aforesaid writ petition after making material concealment before the court. So he is held to be guilty of material concealment from Court in the aforesaid petition.
21. It is true that if any party gives undertaking to the court to vacate suit premises from which he is liable to be evicted under a decree and there is clear and deliberate breach thereof it amounts to civil contempt. But a deeper understanding of the facts and circumstances of the present case lead me to conclude that it is always open in the present case for the contemner to argue that in view of the status quo order passed in aforesaid Civil Suit as well as in the aforesaid Writ Petition he was prevented to comply with the undertaking given by him before executing Court.
22. A close scrutiny of the order passed by learned Single Judge of this Court on 18.8.93 while dismissing the Second Appeal No. 117 of 1993 also supports the aforesaid contention of tenant contemner, wherein he was directed not to part with or deliver possession of the suit shop to any other person except land lord. So it can be reasonably argued on his behalf that he was under bonafide impression that in view of ad interim stay order to maintain statu-quo over the suit-shop he has to remain in possession till ad interim stay order passed in writ petition No. 4220/94 is not vacated.
23. I am of the view that in such a situation the land lord decree holder failed to establish wilful and deliberate disobedience of undertaking given by tenant contemner beyond pale of doubt.
24. I am constrained to observe that the act of Shri Karan Raj Giriya to obtain ex parte injunction order about status quo in Civil Suit No. 182/94 (27/95) by the civil Court which was not maintainable under Order 21 Rule 101 CPC and after its vacation another ad interim order about status quo in civil writ petition No. 4220/94 which too was not maintainable for the aforementioned reasons by making material concealment deserves to be deprecated. I am of the view that Shri Karan Raj Giriya has filed the aforesaid civil suit as well as aforesaid civil Misc. writ petition simply to hoodwink the legitimate claim of land lord decree holder to obtain vacant possession from tenant contemner within the terms and conditions stipulated in the undertaking executed by him before the executing Court.
25. Irrespective of the aforesaid facts and circumstances in my considered opinion while punishing a contemner for wilful and deliberate disobedience of an undertaking, the guilt of the contemner is required to be proved beyond all shadow of doubts. Here in the present case even if there was lurking doubt in the mind of tenant contemner that he is justified to retain the possession of suit shop in the garb of judicial orders it would not be proper to punish him for contempt of Court.
26. There is yet another reason to arrive at the aforesaid conclusion. The learned Civil Court while entertaining the aforesaid civil suit No. 182/94 (27/95) and the learned Single Judge of this Court while entertaining Civil Misc. Writ Pet. No. 4220/94 were under legal obligation to take judicial notice of Order 21 Rules 97, 98 and 101 of Civil Procedure Code as postulated under Sub-section (1) of Section 57 of the Indian Evidence Act which clearly provides that all Courts of law shall take judicial notice of all laws in force in the territory of India. Since on the date of filing of the civil Suit No. 182/94 (27/95) before civil Court and on the date of filing of Civil Misc. Petition No. 4220/94 before the learned Single Judge of this Court, the mandatory provisions of Order 21 Rules 97, 98 and 101 were in force, therefore, the learned civil Court ought to have declined to entertain the civil suit and the learned Single Judge of this Court should also have declined to entertain the writ petition within the meaning of Sub-section (1) of Section 57 of Indian Evidence Act. Suffice it to say in this regard that for mistake or for error of judgment of Courts of law, no litigant should be allowed to suffer.
27. After extending the aforesaid principle of law in punishing the tenant contemner for Civil contempt I hereby exonerate him from the charges of wilful and deliberate disobedience of the undertaking given by him in Second Appeal No. 117/93 before the executing Court and notice for contempt issued against him is discharged.
28. In view of what have been discussed above the S.B. Civil Contempt Petition No. 299/94, Civil Misc. Writ Pet. No. 4220/94 as well as Civil Suit No. 182/94 (27/95) are hereby dismissed. In peculiar facts and circumstances of the case, parties are directed to bear their own costs.
29. Before parting with the judgment, it is made clear that Karan Raj Giriya if so advised would be at liberty to file objection in accordance with law under Order 21 Rules 97, 98 and 101 CPC before the executing court. In case an objection under Order 21 Rules 97, 98 and 101 CPC is filed before the executing Court by Shri Karan Raj Giriya, the learned executing Court is hereby directed to address itself to the following facts while disposing off the objection in accordance with law:
(A) Where was Shri Karan Raj Giriya when previous civil suit No. 122/1977 for eviction was filed by land lord decree holder against tenant-contemner on the ground of default in payment of rent under Clause (a) of Sub-section (1) of Section 13 of Act No. 17 of 1950 leading to compromise between them and extending the benefit of Sub-section 6 of Section 13 of the said Act to the tenant contemner?
(B) Where was Shri Karan Raj Giriya when subsequent suit for eviction on the ground of second default in payment of rent was filed by land lord decree holder under the aforesaid section against tenant contemner which was hotly contested by them upto Second Appeal before this Court and said appeal was dismissed by a learned Single Judge on 18.8.93 allowing tenant contemner to remain in possession over the disputed shop for a period of one year provided he executes an undertaking before executing court with a direction to hand over vacant and peaceful possession to the land lord decree holder on or before 18th of August 1994?
30. On the joint request of learned Counsel for the parties the learned executing Court is directed to decide the objection if any filed by Karan Raj Giriya expeditiously, preferably within three months from today and conclude the execution proceeding forthwith thereafter.
31. Since the contempt petition, civil suit and writ petition have been dismissed, therefore, any interim order passed in any one of three proceedings shall be deemed to be discharged.