Court on Its Own Motion v. Javed Hasan

12. On the next date of hearing, i.e., 27.07.2023, the defendant was present in person and sought further time to file a reply, which was granted subject to payment of costs. Although the Court expressed a prima facie view that the defendant was guilty of contempt, Mr. Chetan Lokur, learned counsel, was requested to assist as Amicus Curiae, as the defendant was appearing in person and had not filed a reply to the contempt notice.

13. The defendant was heard in person on 16.08.2023, as also today. Learned Amicus Curiae and learned counsel for the plaintiffs were also heard. The defendant reiterated that he does not intend to vacate the suit property, and that his erstwhile counsel had breached his trust. He contended that he had in fact paid more than the rent due to the plaintiffs, albeit in cash and for which he had no documentary evidence.

14. The reply to the contempt notice, handed over by the defendant/ contemnor on 16.08.2023 has been taken on record, and I am informed that costs imposed by order dated 16.08.2023 have been paid. In the reply, the defendant has stated that statements were made by counsel without his instructions. He has also sought to raise certain contentions on the merits of the appeal and decree, which are not germane at this stage.

II. Analysis

15. ”Civil contempt” has been defined in Section 2(b) of the Contempt of Courts Act, 1971 [“the Act”] as follows:

16. The principles governing the exercise of contempt jurisdiction have been dealt with in several decisions of the Supreme Court and this Court. They have been very recently discussed by the Supreme Court in Balwantbhai Somabhai Bhandari vs. Hiralal Somabhai Contractor (Deceased) rep. by LRs & Ors. 4, and citation of other authorities is unnecessary for the purposes of the present case. It has been observed by the Court in Balwantbhai Somabhai Bhandari[5] that a litigant is liable to be punished for contempt if he/she, knowing the judgment or the order of the Court, and being conscious of its consequences and implications, acts in violation thereof. In such circumstances, the disobedience would be ”wilful”. While contempt jurisdiction should be invoked with great circumspection, making all allowances for errors of judgment, however, it is imperative to the rule of law that action is taken when a deliberate violation of orders of the Court is made out. Breach of an assurance, in the form of an undertaking given by counsel on behalf of the client to the Court [as opposed to undertaking given to a party to the lis], would also amount to civil contempt under Section 2(b) of the Act.

17. Applying these principles to the present case, I am of the clear view that the defendant has committed contempt of Court for the following reasons: a. An undertaking was given by learned counsel for the defendant on 01.08.2022 to the effect that the suit premises would be vacated within a period of six months, and that arrears of rent would also be paid in equal instalments within the same period. It is recorded in the order that the undertaking was given “on instructions,” and that the defendant’s sister was present in Court. In these circumstances, the undertaking was clearly one given to the Court, and not to the plaintiffs alone. b. By order dated 30.01.2023, the Court gave a positive direction to the defendant, who was present in person, to comply with the order dated 01.08.2022 in its entirety. The defendant has failed to do so. c. In the order dated 02.02.2023, the undertaking given on 01.08.2022 was characterised as one “given to this Court,” and the defendant’s request for an extension of two months’ time to vacate the premises and pay arrears was accepted, with the consent of learned counsel for the plaintiffs. The Court specifically noted the defendant’s contention that he was not aware of the consequences of the statement made on his behalf on 01.08.2022 and, therefore, recorded that it had been explained to him and his counsel that he would “remain bound by the undertaking given to this Court” and that “any violation of the undertaking given to the Court will be held to be the contempt of the Court.” d. In the order dated 10.04.2023, the Court has already returned the finding that the defendant was in contempt of the orders of this Court, recording a breach of the undertakings given to the Court on two different occasions. On this occasion also, the defendant appeared in person and requested further time to vacate the premises, which was granted with the consent of the plaintiffs. It is noted in the said order that the defendant would not be entitled to seek any further extension from the Court, and would vacate the suit property within two months and pay the areas of rent within one month from the said date. The Court recorded that it had been made clear to the defendant, who had appeared in person, that if he failed to vacate the premises within the stipulated date and clear all outstanding rent within a period of one month, the Court would take a strict view of the matter. The defendant’s application for further extension of time of two years was expressly rejected by order dated 17.04.2023. e. In light of the express undertakings recorded in the aforesaid orders, both of learned counsel for the defendant and by the defendant in person, I am of the view that the defendant had given clear undertakings to the Court, that he was aware of the nature of the undertakings, and has willfully failed to act in compliance thereof. f. The defendant‘s repeated assertions that he was misled by counsel are clearly untenable. The undertakings recorded had been given by the defendant in person, and the Court had also explained to the defendant himself, the implications of the order and the consequences of breach thereof. g. The defendant has taken advantage of the time granted by orders dated 01.08.2022, 02.02.2023 and 10.04.2023. He thus obviously understood the implications of the orders of the Court, to the extent that they postponed his liability to eviction from the suit premises. In these circumstances, I do not accept his self-serving assertion that he did not understand the effect of the undertakings that he had offered.

18. In the reply to the contempt notice, as stated above, the defendant has again sought to place the blame on three counsel who have appeared on his behalf, and has made arguments with regard to the total amount, in fact, paid to the plaintiffs. No apology has been tendered except in the following terms:

19. While the Court undoubtedly has jurisdiction to accept an apology of a contemnor, I do not consider it appropriate to do so in this case. As held in Balvantbhai Somabhai Bhandari, a contemnor ought not to be absolved of the consequences thereof, merely by expression of an apology to the Court, unless it is a deep ethical act of “introspection, self-introspection, atonement and self-reform.” 6 The Supreme Court has observed that leniency in acceptance of apologies emboldens unscrupulous litigants to disobey or commit breaches of orders passed by the Court or undertakings given to the Court with impunity. In the present case, the defendant has in fact asserted Supra, note 4 at para 111. time and again, and continues to assert, that he does not wish to vacate the suit property despite the undertakings given to the Court. The Court, therefore, is unable to accept the apology, at best halfhearted, tendered by him.

20. For the aforesaid reasons, I hold that the defendant has willfully disobeyed the undertakings given to the Court and the orders of the Court dated 01.08.2022, 30.01.2023, 02.02.2023 and 10.04.2023. The defendant is, therefore, held guilty of contempt of Court as defined in Section 2(b) of the Act. He is directed to appear in person on 7.11.2023 for sentencing.

21. A further question arises as to the steps which the Court may take to purge the contempt, at least to the extent that possession of the suit property is recovered by the plaintiffs. Proceedings for execution of the decree dated 04.05.2022 granted by the learned Trial Court are pending. However, Mr. P. Choudhury, learned counsel for the plaintiffs, submits that directions to effectuate the orders of the Court may be granted in these proceedings also.

22. The Supreme Court, in State Bank of India and Others vs. Dr. Vijay Mallya,[7] has clearly held that, apart from punishing the contemnor for his contemptuous conduct, the majesty of law may demand that appropriate directions be issued by the Court so that any advantage secured as a result of such contemptuous conduct is completely nullified.

23. The present case is one which calls for the exercise of such power. The defendant has already been granted three extensions of time to vacate the suit property. He has failed to do so, and now expresses a desire not to do so at all. His conduct thus continues to be contumacious and unworthy of any indulgence by the Court.

24. Two cases were cited by learned Amicus Curiae to suggest that the question of possession may also be left to the Executing Court – R.N. Dey and Others vs. Bhagyabati Pramanik and Others,[8] and Jamna Datwani vs. Kishin Datwani and Others.[9] However, these judgments are distinguishable from the facts and circumstances of the present case. They do not concern undertakings given by contemnors to the Court, in lieu of which they enjoyed a benefit conferred by the Court. On the other hand, several judgments of the Supreme Court and this Court,10 including in cases of undertakings given with regard to possession of immovable property,11 have emphasised the role of the Court in ensuring compliance with its orders. These judgments are, in my view, much closer to the facts of the present case.

25. Further, in the present case, while recording the undertaking given by the defendant on 01.08.2022, liberty was reserved for the petitioners to approach the Court in case of default. They have done so by filing CM.APPL. 47617/2022 in RFA 300/2022. The Court‘s jurisdiction to pass the aforesaid order flows from the aforesaid proceedings as well.

26. The defendant is, therefore, directed to hand over vacant possession of the suit premises to the plaintiffs within one week from today, failing which the Executing Court will take necessary coercive steps on the next date of

Judgement dated 24.09.2014 in CONT.CAS(C) 652/2014. Judgements in Mohammad Idris and Another v. Rustam Jehangir Babuji and Others [(1984) 4 SCC 216] and State Bank of India and Others v. Dr. Vijay Mallya [2022 SCC OnLine SC 826]. Judgements in Kanta Gupta (Smt) v. VIII Additional District Judge, Meerut and Others [1991 Supp (1) SCC 219], Kailash Chander Sharma v. Nirmala Wati [2001 SCC OnLine Del 394] and Deepika Chauhan hearing. It is made clear that the proceedings in execution would continue in accordance with law, as far as recovery of arrears of rent is concerned.

III. Conclusion

27. For the aforesaid reasons, the following directions are passed: a. The defendant, Javed Hasan [respondent in CONT.CAS(C) 994/2023], is held guilty of civil contempt of this Court for breach of the undertakings recorded and orders of this Court dated 01.08.2022, 30.01.2023, 02.02.2023 and 10.04.2023. b. List CONT.CAS(C) 994/2023 on 07.11.2023 for orders on sentencing. The contemnor is directed to remain present before the Court on that date. c. The defendant is directed to hand over vacant and peaceful possession of the suit property [shop No. 8, 9, 10 and 11, No. l5-A/52, Plot No.52, Block-15A, WEA, Karol Bagh, New Delhi-110005] to the plaintiffs within one week from today. d. In the event of default with compliance of direction 12 (c) above, the Executing Court is directed to take coercive proceedings for recovery of possession of the suit premises on the next date of hearing. e. Proceedings before the Executing Court will continue for purposes of recovery of arrears of rent and mesne profits, in terms of the decree of the Trial Court and until the date of recovery of possession. f. In addition, costs of Rs.1,00,000/- are imposed upon the defendant, which may also be recovered by the plaintiffs in the execution proceedings arising out of the decree. and Another v. Indra Pasricha [2023 SCC OnLine Del 1552]. g. CM APPL. 47617/2022 in RFA 300/2022 stands disposed of.

28. The Court records its appreciation for the valuable assistance rendered by Mr. Chetan Lokur, Advocate, as Amicus Curiae. He is requested to assist the Court on the next date of hearing on the question of sentencing also.

PRATEEK JALAN, J SEPTEMBER 18, 2023 SS/