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1951 (4) TMI 31

s the deft's. appln. for committing the pltfs. Sambhu Charan Nundy & Nilmoni Nundy for contempt & for varying and discharging the undertakings given by the deft, appct. under the consent decree. Two questions have been argued before me: one relates to the pillars according to the sanctioned plan of the Corpn. & the other relates to a window in the south-eastern room which is the alternative accommodation given under the consent decree to the deft. 2. The consent decree is dated the 23-11-1930. The terms of the consent decree are set out in annexure B to the petition. There are respective undertakings of the pltfs. & the deft, in the various clauses of the terms of settlement; for instance, Clause 2 of the terms of settle .....

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gard to the pillars is that it was really more desirable to have two pillars instead of three as shown in the sanctioned plan, as three pillars would only take more space than two pillars & the pillars have been placed in such positions that two in the case are enough & that such arrangement they thought would be better for the deft. Be that as it may, it is unfortunate that the pillars were not put Up according to the exact directions of the Ct. & according to the sanctioned plan to which the parties agreed by the terms of settlement. I am not concerned here with the reasonableness of what they have done but having regard to these reasons I am prepared to give the pltfs. another chance & thus accept the undertaking given to .....

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pct. cannot in any event proceed in contempt. The question whether there was a closing down of the window at the date or the time when the consent decree was made does not appear to me to be established on the affidavits. On behalf of the pltfs. it is said both in the affidavit as well as in the statement of counsel to the Ct. that the window was closed about eight months ago. That would show that there was in fact no window at the time of the consent decree. 7. There is also an affidavit of the previous tenant Paresh Nath Sil, who left this house & is no longer a tenant of the pltfs. saying in support of the pltfs. that the window was closed about 8 months ago. The engineers on either side have sworn affidavits to support their respect .....

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er between the Ct. & the litigant but it is also incidentally, & very often substantially, one of the major considerations by which the other contending party agrees to certain terms. Here as I analyse the terms of settlement under the consent decree I find there are respective undertakings given by the pltfs. & the deft. to the Ct. & each is the consideration for either of the parties coming to the terms of settlement as they did. To vary, therefore, one particular undertaking of a particular party, the deft, in this case, & at the same time keeping the other undertakings of the pltf. to the Ct. intact, would be, in my view, unjustified because it will irreparably prejudice the pltfs. It is conceivable that if the deft. .....

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in my judgment incompetent & the Ct. has no jurisdiction to entertain such appln. But that does not mean that in case of every breach of an undertaking in such a consent decree or for the matter in any other final decree signed, completed & filed, the Ct. has no option but to punish such breach by committing the contemner to prison. Such committal is always discretionary with the Ct. & the Ct. exercises such discretion on the facts of individual cases after their due consideration. Court's power to punish contempt always carries with it the power to pardon contempt if need be. 11. Mr. Deb apprehends that as there is no window the room would not be usable & if his client cannot get into that room, then he might be procee .....

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