DR. (MRS.) ROSHAN SAM BOYCE v. B.R. COTION MILLS LTD. AND ORS.

The Judgment of the Court was delivered by A KANIA, J. Leave granted. The appeal is taken up for final hearing. Counsel heard.

The short facts necessary for the disposal of the appeal are as B follows:

The appellant is the owner of a Bungalow known as "Villa Hormazd" at 8-A, Carmichel Road, Bombay. The suit premises, com- I. prising two floors of the said bungalow, were leased to Mayer Mills Ltd. under a lease deed dated April 16, 1948 for a period of three years :.._~)r from November 1, 1947. At that time, the bungalow belonged to the · · c father of the appellant. On the death of the father of the appellant in 1949, the appellant became the landlady of the said bungalow. Respondent no. 1, B.R. Cotton Mills. Ltd., is the successor-in-interest of Mayer Mills Ltd. and at the relevant time was in possession of the /· suit premises as a tenant. Respondent no. 2 is the Chairman of respon- D dent no. 1 and the other respondents are some of the Directors of respondent no. L The appellant filed a suit being R.A.E. No. 763/ 6563 of 1966 in the Small Causes Court at Bombay for eviction of respondent no. 1 from the suit premises and for possession on the ground of reasonable and bona fide requirement. During the pendency of this suit, another suit for eviction was also filed by the appellant E against respondent no. 1 for eviction on the gr011nd of default in the ' payment of rent for a period of more than six months. The Trial Court .,_.,f by its judgment dated September 13, 1975 decreed the aforesaid evic- tion suit R.A.E. No. 763/6563 of 1966 (hereinafter referred to as "the said suit") but the other suit for eviction filed by the appellant ~as dismissed in view of the eviction decree passed in the said suit. f F Respondents nos. 1 and 2 filed an appeal against the decree for evic- tion but the said appeal was dismissed. In February, 1986, the husband of the appellant died and after that the appellant is the landlady of the .., said bungalow. On the other hand, the appeal of the appellant against .X the dismissal of her other suit, for eviction on the ground of default in payment of rent was allowed and that suit was also decreed against respondent no. 1. The respondent then filed a writ petition in the High Court at Bombay challenging the decrees for eviction passed by the Court of Small Causes as aforestated. On February 27, 1987, respon- dent no. 2 filed a suit. in the Court of Small Causes for a declaration that he was the lawful sub-tenant of the suit premises and was not t" bound by the decrees of eviction passed in respect of the suit premises against the tenant, namely, respondent no. 1. The said Writ Petition

(MRS.) R.S. BOYCE v. S.R. COTTON MILLS [KANIA, J.] 385

No. 1066 of 1987 filed by respondent no. 1 challenging the decrees for eviction passed against respondent ·no. 1 in the said suits and con- firmed in appeal came up for hearing before a learned Single Judge of the Bombay High Court on March 5, 1983. The learned Judge by his judgment and order of the same date, dismissed the said writ petition. The relevant part of the order of the learned Judge reads as follows: B "The petitioner requests for time of eight weeks to vacate the premises. He is granted the said time subject to execut- ing written undertaking that he shall not part with the pos- session of the suit premises or create third party interests in the suit premises in the meantime in any manner what- soever.''

On March 11, 1987, the matter was brought up again before the learned Single Judge by learned counsel for the appellant for pointing out that respondent no. 1 had not filed the requisite undertaking as directed under the order dated 5.3.1987. It appears that at that stage it was pointed out to the Court by Mr. Dalvi, learned counsel for the D appellant that respondent no. 2 had filed a declaratory suit in the Court of Small Causes as aforestated claiming to be the sub-tenant of the suit premises. The order of the learned Judge dated March 11, 1987 shows that the learned Judge stated that he did not wish to take any action at that time on the conduct of respondent no. 1 but, as a last chance, granted respondent no. 1 time upto March 17, 1987 for fur- E nishing the undertaking as ordered failing which it would be deemed that the condition was not fulfilled. Respondent No. 3, as a Director of respondent no. 1, by his affidavit, affirmed on March 17, 1987, gave an undertaking merely stating that respondent no. 1 would not commit any act contrary to or in breach of the order dated March 5, 1987. It was pointed out by the appellant that this undertaking was not in compliance with the orders passed by the learned Single Judge. After some correspondence, respondent no. 3, by his affidavit affirmed on March 25, 1987 filed an undertaking on behalf of respondent no. 1 inter alia stating that respondent no. 1 would not part with the posses- sion of suit _premises or create any third party interest in the suit premises in any manner whatsoever. The undertaking did not state that respondent no. 1 had not, before the undertaking was given parted with the possession of the suit premises or created any third party interest therein. When the matter came up on March 31, 1987 before the learned Single Judge who had gi~en time to respondent no 1 to vacate as aforestated, it was pointed out by learned counsel for the appellant that the undertaking was objected to as it did not state that H

p. 386 Copy page pinpoint

respondent no. 1 was in possession. Thereupon Shri R.J. Joshi, A learned counsel for respondent no. 1 Company, stated that the under- taking spoke for itself and when it stated that respondent "shall not part with possession" it meant that respondent no. 1 company was in r possession. In view of this, the learned Judge did not give any further clarification. Respondent No. 1 preferred a special leave petition to B this court against the judgment of the learned Judge dismissing the said writ petition but the said special leave petition was dismissed. Thereafter the suit filed by respondent no. 2 in the Court of Small Causes for a declaration that he was the lawful sub-tenant of the suit :...._ premises was dismissed but he preferred an appeal against the said decision and in that appeal obtained an interim injuction restraining a: C the appellant from interfering with his possession of the suit premises. In view of this, the decree for eviction could not be executed. There- after in June 1987, the appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court setting out the facts and praying that the respondents should be punished under the provisions of the Contempt of Courts Act, 1971. It has been inter alia alleged in the contempt petition by the appellant that in spite of the said undertak- ing, respondent no. 2 had filed a suit, being suit no. 2911of1987 in the City Civil Court at Bombay claiming a declaration that the decree for possession was a nullity and for an injunction restraining the appellant from executing the decree and obtained an ad-interim injunction a few days after the summary dismissal of the special leave petitions filed by thfe respo~dentsfin this Court as aforbestated. The said suit .was thdere- __ _,( - a ter dismissed or non-prosecution ut, in the meantim·e, respon ent no. 2 filed the suit in the Court of Small Causes for a declaration that he was the lawful sub-tenant of the premises as aforestated. It was sub- mitted by the appellant in the contempt petition that the said under- taking given by respondent no. 1 clearly implied that on the date of the ~ F undertaking, respondent no. 1 was in possession of the suit premises r ., and in order to defeat the decree for possession, respondent no. 1 had /' set up its Chairman, respondent no. 2, to file the aforesaid suit in the " ,.l( Court of Small Causes claiming sub-tenancy. It was further submitted by the appellant that although respondent no. 1 continued to be in possession of the suit premises it had set up respondent no. 2 to file the suit on the ground that he was in possession of the suit premises as a sub-tenant in his own right and continued to be in possession thereof. • The learned Judge before whom the said contempt petition came up for hearing took the view that in the order of the learned Single Judge dated March 5, 1987, he was unable to read any direction to file an undertaking to give possession. He took the view that the aforesaid undertaking given on behalf of respondent no. 1, that it would not part

(MRS.) R.S. BOYCE v. S.R. COTION MILLS [KANIA, J.] 387

with possession or create any third party interest in the suit premises, A • did not imply that respondent no. 1 was in actual physical possession of the suit premises and that the fact that respondent no. 2 was claiming an independent title in himself as a sub-tenant by virtue of a Resolu- tion of respondent no. 1 was not sufficient to hold that respondent no. 1 or the other respondents were guilty of contempt. He took the view that there was no undertaking by respondent no. 1 to deliver posses- B sion of the suit premises and on the basiS of these conclusions, he rejected the contempt petition. At the same time the learned Judge did _ observe that respondent no. 1 may have indulged in sharp practices but l held that it was not guilty of contempt. The present appeal is directed against this order.

It was submitted by Mr. Chidambaram, learned counsel for the c appellant that respondent no. 1 and respondent no. 2 were guilty of contempt and the learned Single Judge was in error when he took the . ).__. view that no contempt was established in the matter against the re- spondents. It was submitted by learned counsel that on 5th March, 1987 when the writ petition preferred by respondent no. l was summarily rejected by Justice Puranik of the Bombay High Court, learned counsel for respondent no. 1, on instructions, made an appli- cation to the learned Judge to grant respondent no. 1 time for eight weeks to vacate the suit premises. This time was granted subject to respondent no. 1 executing an undertaking that he would not part with the possession of the prernises or create third party interests therein as set out earlier. After delaying the matter for some time, respondent no. 3 filed on March 25, 1987, an affidavit, as a director of respondent no. 1 wherein he set out inter alia that respondent no. 1 agreed to give an undertaking as set out earlier as respondent no. 1 was desirous of approaching the Supreme Court to challenge the order of the learned Judge dismissing the writ petition. It was submitted by Mr. Chidam- F baram that this undertaking clearly implied that respondent no. 1 was )(_ in possession of the premises and was in a position to hand over the vacant and peaceful possession of the suit premises after eight weeks, if the special leave petitions preferred by respondent no. 1 were dis- missed or no interim relief was obtained thereunder. This undertaking was taken note of by Justice Puranik when the case reached before him G on March 31, 1987. It appears that an objection was taken to the language of the said undertaking on the ground that it did not state that respondent no. 1 was in possession of the suit premises and there- upon, Mr. R.J. Joshi, learned counsel for respondent no. 1, stated that the undertaking spoke for itself and that when it stated that respon- dent no. 1 shall not part with the possession of the suit premises it H

p. 388 Copy page pinpoint

(MRS.) R.S. BOYCE v. S.R. COTTON MILLS [KANIA, J.J 389

it was respondent no. 2 who was claiming to be in possession ot the said premises in his independent right as a lawful sub-tenant and it was he who had obtained an interim injunction from the Small Causes Court. It was urged by learned counsel that so far as respondent no. 2 was concerned he had not given any personal undertaking to the court. It was submitted by learned counsel for all the respondents that before a court could take any action for contempt it must be strictly estab- B lished that the·contempt had been proved beyond reasonable doubt as an action for contempt was in the nature of a criminal proceeding.

Mr. Cooper drew our attention to the decision of this Court in The Aligarh Municipal Board & Ors. v. Ekka Tonga Mazdoor Union -· and Others, [1970] 3 SCC p. 98 wherein it has been held that "In order to bring home a charge of contempt of Court for disobeying orders of c Courts those who assert that the alleged contemners had knowledge of the order must prove that fact beyond reasonable doubt. In case of doubt, however, benefit ought to go to the person charged." He further relied upon the decision of this Court in Babu Ram Gupta v. Sudhir Bhasin & Anr., [1979] 3 SCR p. 685 wherein a Bench of two D learned Judges of this Court held that "it is not open to the Court to assume an implied undertaking when there is none on the record."

We now propose to examine the facts appearing on the record.in the light of the aforesaid submissions and decisions. What we do find on the record is that when the writ petitions filed by respondent no. 1 E in the High Court were dismissed by Puranik, J. by his order dated 5th March, 1987, learned counsel for respondent no. 1 applied for time for eight weeks to vacate the premises and the learned Judge gave the said time to respondent no. 1 to vacate the premises subject to its filing a written undertaking that it would not part with the possession of the suit premises or create third party interest in the suit premises. It may F be that time to vacate was applied for as respondent no. 1 desired to 1-- file an appeal to the Supreme Court. The fact, however, remains that, if the claim of respondent no. 2 is correct, on that day he was already a lawful sub-tenant of the suit premises and occupying the same. Respondent no. 2 was none other than the Chairman of respondent no. 1 company. It is, therefore, inconceivable that rspondent no. 1 G could have been unaware of the claim of respondent no. 2. It is, therefore, apparent that respondent no. 1 clearly tried to mislead the court when it gave instructions through its officers to learned counsel appearing for respondent no. 1 to apply for time to vacate the premises and remained silent when time was given on the condition that a writ- ten undertaking as aforestated would be filed, suppressing from the H

p. 390 Copy page pinpoint

court the fact that respondent no. 2 claimed to be the sub-tenant of the said premises and we have no doubt that respondent no. 2 must have been a party to this course of action. After some hesitation, the written undertaking was filed as aforestated which clearly implied that respon- dent no. 1 was in possession of the suit premises andjn a position to hand over possession of the suit premises to the appellant after the period of eight weeks expired. Respondents Nos. 1 and 2 knew fully well that this was not possible unless respondent no. 2 gave up his claim which he had no intention of doing. Further, on March 31, 1987 learned counsel for respondent no. 1 appeared ir, court and stated that the undertaking spoke for itself and when it stated that respondent no. 1 would not part with the possession of the premises it meant that respondent no. 1 was in fact in possession thereof. As we have already c pointed out respondent no. 2 was and continued to be the Chairman of respondent no. 1; his nephew, Prem Kumar Gupta, who was residing in the said premises in 1973, according to the evidence given by him in the Court of Small Causes, was a Director of respondent no. I com- _J pany. After all, respondent no. I is a company and it can have no knowledge or intention other than the knowledge and intention of the people who control it. We have no doubt at all that it was respondent no. 2 who, along with some of his family members, was in full charge of the affairs of respondent no. I company. In these circumstan~es, it appears clear to us that all the actions taken by the legal advisors and counsel of respondent no. 1 including, in particular, the giving of the atoresaid undenaking as well as the clarification given by learned counsel regarding the meaning of that undertaking as aforestated were with the fullest knowledge and consent of respondent no. 2. It is impossible to maintain this dichotomy, for the purposes of the con- tempt petition, between respondent no. I and respondent no. 2. Respondent no. 2 knew fully well when he authorised the giving of the undertaking on behalf of respondent no. I or consented to its being given that respondent no. 1 was in no position to hand over posse~sion of the suit premises in execution of the decree because respondent no. 2 claimed to be in possession of the said premises and claimed sub- tenancy rights in the same and had no intention whatsoever of giving up the claim. In fact, the entire course of conduct adopted on behalf ot respondent no. 1 was only with one aim in view and that was to frus- trate or to at least delay indefinitely the execution of the decree which the appellant had obtained after the lapse of many years and after such sustained and lengthy legal proceedings which must have caused the appellant considerable expenses and anguish. It is significant that till Mr. R.J. Joshi, the learned counsel, who gave the clarification in respect of the said undertaking was alive, no contention was ever

(MRS.) R.S. BOYCE v. S.R. COTTON MILLS [KANIA, J.J 391

raised that the clarification was given by him without taking instruc- tions or that respondent no. 1 or respondent no. 2 were not aware of A ' the same. It was only after the sudden demise of the learned counsel that this contention was first raised by respondent no. 1. This conduct speaks volumes for the dishonest attitude adopted by respondents nos. 1 and 2. Raising this contention after the death of Mr. R.J. Joshi can only be regarded as one more of the tricks which respondents nos. 1 8 and 2 have played throughout the case in order to defeat and delay the execution of the decree for possession against responent no. 1.

In the circumstances set out earlier, although the learned Judge of the High Court might have felt constrained by what he considered to be the limits of his jurisdiction in a contempt proceeding, we feel that our hands are not so tied and, where there is patent dishonesty on the c part of respondents Nos. 1 and 2 writ large on the face of the record, the law does not require that we should sit back with folded hands and . "\.,_. fail to take any action in the matter.

We find that under clause (1) of Article 142 of the Constitution, D 1 it is provided that this court in exercise of its jurisdiction may pass such decree or make such,order as is necessary for doing complete justice in any case or matter pending before it and any decree so passed or order so made shall be enforced throughout the territory of India in the manner set out therein. In the circumstances which we have already set out earlier, we are of the view that respondent no. 1 is guilty of mis- E conduct amounting to contempt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit pre- mises to the appellant in execution of the decree in favour of the appellant or otherwise. It is significan,t that the claim of sub-te'.li\ncy .' set up by respondent no. 2 is pursuant to an alleged resolution of respondent no. 1. We have also no doubt that respondent no. 2 was a party to this breach of the undertaking being committed and, in fact, it was he at whose instance respondent no. 1 committed the breach of the undertaking as aforestated. We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi-criminal in nature, that the law of contempt has to be strictly interpreted and that the require- ments of that law must be strictly complied with before any person can be committed for contempt. However, as we have pointed out, respon- dent no. 1 gave an undertaking based on an implication or assumption which was false to its knowledg_e and to the knowledg_e of respondent

p. 392 Copy page pinpoint

(MRS.) R.S. BOYCE v. S.R. COITON MILLS [KANIA, J.l 393

that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order ' to meet unforeseen contingencies. This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver. It is clarified that the possession of the pre- mises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities. It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court. In the event of respondent no. 2 being able to finally establish his right to the sub-tenancy of the suit premises as claimed by him in the declarat- c ory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised. Respon- dents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20,000 the liability for the payment of the said aggregate amount being joint and several as between respondents Nos. 1 and 2. As far as respondent no. 3 is concerned, we do not propose to take any action D against him.

N.P.V. Appeal allowed.