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TMI Blog1963 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... fixation, in his absence. That being treated as defective service, the Registrar of this Court directed fresh service of notice on the opposite party both in the ordinary way and by registered post. It appears from the report of the process-server, dated January 26, 1963, that the opposite party refused to accept the notice this time and the same had to be served by affixation. The notice sent to the opposite party by registered post also came back with the endorsement by the postal peon that the same had been refused by the addressee opposite party, on February 2, 1963. 4. When, in these circumstances, this Rule was placed before us for hearing, on May 24, 1963, the opposite party personally appeared in Court and Mr. Arun Prokash Chatterjee and Mr. Hemesh Chandra Sen, Advocates, stood up as if representing the opposite party. We found, however, that above named two learned Advocates had not filed any power, executed by the opposite party, authorising them to represent the case of the opposite party. We could not therefore, hear them on that day but proceeded to hear the opposite party himself. In answer to our questions Nos. 10 to 16, he gave the following answers: - 10. Have yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent opposite party (respectively defendant No. 1 and 2 in that suit) from the aforesaid premises, being T.S. 258 of 1953 of the Second Court of Munsif at Alipore, on the following allegations (Annexure 'A' to the affidavit-in-opposition): 1. One Rameswar Sharma since deceased was the plaintiff's tenant at will from month to month at a monthly rent of ₹ 225/- in respect of premises No.70 Raja Basanta Roy Road, described in the schedule annexed. 2. The said Rameswar Sharma died sometime ago leaving him surviving the defendant No.1 as his only heir and legal representative who has in law stepped into his shoes as the plaintiff's tenant in terms hereinbefore mentioned. 3. The plaintiff was however receiving rent of the said premises through the defendant No.2, but in the name of the said late Rameswar Sharma. 4. The said defendant No. 2 had been asserting that really he was the tenant but under the name of late Rameswar Sharma, the latter having had, according to him no interest in the said tenancy. 5. That plaintiff has, however, under legal advice, served notices of ejectment upon both the defendants and brings this suit against both of them to avoid any co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said suit and in his evidence stated: I became the tenant long ago in or about 1939. I am not sure of the date. 12. The learned Munsif decreed the suit, on December 18, 1956 and ordered: That the suit be decreed on contest with costs. The plaintiff do get khas possession of the suit premises on eviction of the defendant therefrom. The decree for ejectment shall not be executed till the end of February, 1957. 13. The present opposite party preferred an appeal against the decree before the second Additional Court of the Subordinate Judge at Alipore. The learned Subordinate Judge found that the plaintiff did not reasonably and bonafide require the premises for her own use and occupation. By his decree, dated August 21, 1957, he allowed the appeal and dismissed the suit. Against the appellate decree, the present petitioner filed a second appeal to this Court, being S.A. 770 of 1958. That appeal came up for hearing before this Bench on July 28, 1960 and was decreed in terms of settlement. The material portion of the decree passed by this Court is hereinbelow set out - Upon this appeal coming on for hearing in a Division Court before the Hon'ble Binayak Nath Banerjee, and the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Supplementary affidavit by the petitioner. To the aforesaid letter the opposite party sent the following reply, on September 3, 1960 (Annexure C(1) to the Supplementary Affidavit: - I am surprised to read the contents of registered letter dated 31.8.60 received by me yesterday. After the High Court case was over I approached you and you kindly settled new tenancy of the above premises and upon payment of the rent for July, 1960 by me, you granted me proper rent receipt for July, 1960 as your tenant on 17th August, 1960. I am surprised that you should now try to go back. I have never made any misrepresentation to you nor did I manage to obtain the rent receipt concerned on any misrepresentation. The entire allegations are after-thoughts and cannot hold good against the clear rent receipt and the creation of a fresh tenancy. The question of treating the said rent receipt as one for mesne profits cannot and does not arise. 18. There was a reply, to the letter sent by the petitioner on September 7, 1960, to the following effect (Annexure C(2) to the Supplementary Affidavit): - In reply to your letter dated 3.9.60 I have to inform you that there was nothing to be surprised o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le High Court but by fresh tenancy it has been given a complete go-bye on 17th August, 1960 when I met your father, representing you in the normal course, and settled fresh tenancy upon payment of rent. As your father always represented you in all negotiations with me, I did not know nor did I enquire if you were present; but I emphatically deny that I persuaded him to accept the money in terms of the High Court order or that I paid the money at all in terms of the High Court order or that the rent receipt which he granted me under the fresh tenancy was or could be equivalent to the monthly rent of mesne profit. The receipt is in clear and unambiguous language one for rent and has nothing to do with alleged mesne profit. I reiterate that your father representing you (as he had done throughout) entered into a fresh tenancy and that he had full authority to do so and no amount of denial will avail you of getting rid of that fresh tenancy. I deny that fresh tenancy is either a story or a concoction of a fertile brain. The order of the Hon'ble High Court has been given a go-bye and no longer binds either you or me. 20. The petitioner having had refused to accept the money, tende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms and conditions of the above-mentioned decree passed by Hon'ble High Court shall be binding on both the parties as before and will remain in operation accordingly. (d) that the three letters dated 3.9.60, 9.9.60 and 12.9.60 written by the aforesaid decree-holder and the objection petition filed by the aforesaid judgment-debtor under Section 57 of the Civil Procedure Code before the 2nd Munsif Court, Alipore on 7th day of January, 1951 in Title Execution Case No.77 of 1960 are hereby withdrawn by the said judgment-debtor and cease to have any valid effect as they were written and filed under misconception by the judgment-debtor. 4. The aforesaid decree-holder in her turn will not proceed further with the execution proceedings for the period of default in payment of mesne profits from the date of passing of the said decree by the Hon'ble High Court upto this day of 2nd February, 1961, provided by said judgment-debtor pay in a lump all the balance of mesne profits so far accrued due to the said decree-holder within thirty days failing which the decree-holder will again put the decree into execution for evicting the judgment-debtor from suit premises. Defaults so f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same amount to the decree-holder as required under the terms of the solenama of the aforesaid Misc. Case. The Money was sent on 15.3.61, which was much beyond the prescribed time * * * * it appears that the petitioner has not complied with the terms of the solenama and the decree-holder can proceed with the execution case and the objections of the petitioner have no basis at all. 25. Against the aforesaid order the opposite party preferred a Miscellaneous Appeal, being Misc. Appeal No.394 of 1961. The Appellate Court dismissed the appeal on June 23, 1961 with the following observations (Annexure B to the affidavit-in-reply): Further I have grave doubts if the judgment-debtor opposite party had the required money with him before 15.3.61, or if he had the willingness to part with the money on that date. His petition reveals that he was meeting Dr. K.K. Hazari the father of the decree-holder, repeatedly in order to obtain the original challan in respect of the deposit of rent he had made, innocently or wickedly, with the Rent Controller. The judgment-debtor therefore, was keen to make payment to the decree-holder after withdrawing the sum he had deposited with the Rent Controller. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Roy Road, Calcutta-29. Please send your representative to take delivery of the above premises on July 30, 1962, preferably in the morning. Kindly take notice of it. 28. Again on July 30, 1962, the opposite party alleges, he wrote the following letter to the petitioner under certificate of posting: - Sub.: - 70 Raja Basanta Roy Road. I had asked you by my letter dated 25.7.62 to arrange taking delivery of possession of the above premises to-day morning as per order of Hon'ble Mr. Justice Banerjee and Hon'ble Mr. Justice Amaresh Roy in S.A. 770 of 1958. You however rang me up to inform that because of the order of stay of delivery of possession passed by the Hon'ble High Court in 2nd Misc. Appeal No.131 of 1961, you dared not take delivery of possession of the premises lest you should commit contempt and accordingly you wished me to continue in possession. I hereby put on record the aforesaid telephonic conversation. I make it clear to you also that I made every arrangement to hand over vacant possession of the premises to you to-day morning. 29. The petitioner denies the receipt of the letters in paragraph 4 of the affidavit-in-reply which is set out below: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (hereinabove quoted). Therefore, the petitioner became relieved of the undertaking, if any, given to this Court. He contended, in the next place, that the decree in S.A. 770 of 1958 was varied or adjusted by the compromise entered into in Misc. Appeal 71 of 1961 (Annexure B to the petition) and since the opposite party had faithfully acted in accordance with the terms of that compromise, he must not be deemed to have fallen within the mischief of the decree in S.A. 770 of 1958. He contended further that the opposite party had complied with the undertaking, if any, given to this Court by offering possession of the disputed premises to the petitioner by his letters dated July 25 and 30, 1962, sent to the petitioner under certificate of posting and he should not be proceeded against for breach of the undertaking to this Court. Alternatively, he contended that the undertaking, if any, was not expressly given to this Court and should be construed as given to the petitioner decree-holder and for breach of such an undertaking the opposite party should not be proceeded against for contempt of Court. Further in the alternative he argued that for breach of the undertaking, the terms of com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the consent decree passed in S.A. 770 of 1958 had been adjusted by a fresh tenancy created in favour of the opposite party, which relieved him of the undertaking given to this Court. 37. The argument that the decree in S.A. 770 of 1958 was varied and adjusted by the compromise between the parties in Misc. Appeal No. 71 of 1961 is also unconvincing. So also is the story that the opposite party had acted faithfully, in accordance with the terms of that compromise and for that reason must not be deemed to have fallen within the mischief of the breach of the undertaking contained in the decree in S.A. 770 of 1958. The compromise in Misc. Appeal No.71 of 1961 did not vary or adjust the consent decree in S.A. 770 of 1958. Clause 1 of the terms of settlement in Misc. Appeal No. 71 of 1961 (hereinbefore quoted) expressly stated that the parties shall abide by the terms of the decree in S.A. 770 of 1958. That clause is sufficient to silence an argument to the effect that the decree in S.A. 770 of 1958 was in any way varied or adjusted in so far as terms regarding delivery of possession were concerned. All that was agreed upon, by the terms of settlement in Misc. Appeal No. 71 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work on the presumption that the certificate of posting was a forgery. On the other hand I should presume that the letter was posted and that it reached its destination unless something is shown to the contrary. 40. Then again, there is the decision in (3) Dhanapati devi v. The Corporation of Calcutta, (AIR 1952 Cal 467) in which Chakrvartti and Das Gupta, JJ. observed as follows: - In addition to this entry in the Minutes, the Corporation also exhibited a Register of letters sent by it to parties in cases heard and dealt with by the Building Committee. There appears on that Register under the date June 25, 1949 an item numbered 37 and against that item there is an entry to the effect that a letter was sent to the petitioner at 10/2, Syed Sally Lane under a certificate of posting. The necessary postage stamps covering all the letters mentioned in the page, are affixed in the Register itself. The register was spoken to by P.W. 4, one Dinesh Chandra Majumdar. In view of the materials present on the record, it appears to me that under the provisions of ss. 16 and 114 illustration (f) of the Indian Evidence Act, as interpreted in decided cases too numerous to mention there must be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section with the illustrations thereto has nothing to do with presumptions but only with relevance. Some cases relating to this have been cited before us. We have considered the same but it is unnecessary to deal with them. 42. We have, therefore, to proceed on the basis that the certificates of posting relied upon the opposite party raise the presumption that the covers alleged to contain the two letters addressed to the petitioner (hereinbefore quoted) were posted by the opposite party. The normal presumption under Section 114 illustration (f) of the Evidence Act will also be that the covers were delivered to the petitioner. A presumption is not, however, proof and may be rebutted. In the instant case the petitioner denies the receipt of two letters in her affidavit-in-reply. The question for our consideration is whether the denial is sufficient to rebut the presumption that the letters were delivered to the petitioner. The opposite party did not act like a man of ordinary prudence when he chose to send the above-mentioned two letters, of the importance that they appear to be, by ordinary post under Certificate of Posting. He took the peril of such letters being mislaid or misd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in writing, in the compromise petition in Misc. Appeal No. 71 of 1961, that his theory of new tenancy was a misconception and that he would not in future repeat the story. Then again, in answer to our question Nos.71 to 83, the opposite party gave the following answers: - 71. It is more than that. You made a definite case to the effect that there was a new settlement with you upon payment of rent for July, 1960. Is not that correct. - Yes, when I got the receipt there was a new settlement. 72. And you further stated in the letter that you approached the petitioner directly and she gave the receipt. - The receipt was given to me by Mr. Hazari after he had consulted her. 73. Then it is not true that you approached the lady directly and had the talk face to face. - So far as all the talks, that have taken place were with Dr. Hazari. Of course she had been present there. 74. Do you remember having written a letter to the petitioner on September 12, 1960? - Yes. During this time I wrote letters. 75. Will you kindly look at the copy of the letter and find out whether this was written by you (shown)? - Yes, this is my letter. 76. Will you read this portion that I am marking for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now whether you were present or not. 83. If you had written otherwise a that time, would you say now that she was physically present at the time of negotiation? - I say she was present because she lives there in the same house. 44. The unreliability of this part of the evidence is apparent on the face of the answers given. Further in answer to our question Nos.110 to 118, he gave the following answers: - 110. You have stated in your evidence that you sent a Telegraphic Money Order on the 10th February, 1961; is that right? - Yes. 111. Would it be wrong to suggest that you sent the Telegraphic Money Order on 15th March, 1961? - That would be wrong to say that it would be sent on 15th March. If the money was due on the 2nd, I sent T.M.O. certainly before the 15th of that month. 112. So you will maintain that you did not send the T.M.O. on the 15th March but on the 10th February? - It is six or seven days from the date on which it was due of the same month. 113. Now did the decree-holder petitioner start a second execution case against you? - Yes. 114. What did you do in that execution case? - Then again I filed an objection. 115. Is this the copy of that petition (shown)? - Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere until October, 1962 (Vide his answers to Q. 127 to Q, 139). If he continued to possess the premises till October, 1962, he cannot be said to have honoured the undertaking to given up possession with the expiry of July, 1962. The fact that the opposite party at all left the disputed premises is also disputed. But irrespective of the dispute, it is clear that he did not leave the disputed premises at least upto October, 1962. If the opposite party felt himself bound by the undertaking, it was his plainest duty to leave the premises after having informed the petitioner that he was going to leave and irrespective of whether the petitioner would come and take delivery of possession from him. In the facts and circumstances of this case, we feel constrained to think that the opposite party might have made a show of delivery of possession without intending to act up to what he had written in the letters aforementioned. We, therefore, repel the contention that the opposite party did honour the undertaking by writing the two letters dated July 25 and 30, 1962. 48. We now take up for consideration the two branches of the alternative argument advanced by Mr. Sen Gupta. In support of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt urges us to do is to read into paragraph 6 the words 'undertakes to Court.' The words are not there. It must be remembered that this compromise agreement was negotiated between the parties outside Court. They were agreeing to certain terms and amongst other things, the defendant promised or undertook to remove this image when called upon to do so. The agreement he made was not with the Court, but with the plaintiff respondent, and prima facie he undertook to remove this image with the plaintiff respondent. When this paragraph is to be construed we must bear in mind that it is found in a document executed by two parties, the plaintiff and the defendant and the promises made by the plaintiff are promises made to the defendant and the vice versa. How, therefore, can the undertaking to remove the image be treated as an undertaking not to the plaintiff but to the Court? It must be remembered that the Court at this stage was no party to the agreement. Mr. Ghose who has argued this case on behalf of the respondent with great force has urged that we must bear in mind that this agreement was arrived at with a view to presenting it to Court and asking the Court to pass a decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'undertake' was used in a paragraph in a compromise, although there was nothing to suggest that the undertaking was to a Court. The compromise was made a rule of Court, and Panckridge, J. came to the conclusion that the undertaking mentioned in the compromise was an undertaking to the Court. the learned Judge gives no reasons for so holding beyond the fact that the word 'undertake' was used. But as I have stated the mere user of the word 'undertake' does not mean a promise to a Court. It merely means a solemn promise to some one and where the word appears in an agreement between A and B, it appears to me that if A undertakes, he obviously undertakes to B, and not to a Court. In Building and Land Trust (India) Ltd. v. Tilok Chand Surana, (unreported) decided on 22.5.1946, Clough, J. arrived art the same conclusion as that arrived at by Panckridge, J. in the case I have cited and Gentle, J. in the present case. The learned Judge appears to have thought that once the facts are borne in mind that the parties intended the agreement to be submitted to Court and that a decree was passed in terms of it, the word 'undertake when used in a compromise must mean an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Chief Justice, if one of the terms of the compromise was that one of the parties should give an undertaking to the Court, then the compromise should make it clear that such was the case, and if it did not make it clear and the compromise merely stated that one of the parties 'undertakes', then the ordinary construction must be given, and that is, a promise or a solemn promise given to the other party and not to the Court. Now, with very great respect to the learned Chief Justice, he seems to have taken the view that the word 'undertake' must be given its ordinary dictionary meaning. He has not considered at all as to whether, by long practice understood both by counsel and by Judges, the expression 'undertaking' had come to acquire a technical meaning. I am sure, if he had considered that aspect of the case, he would not have come to the conclusion that the only way to construe the expression 'undertake' was to give it its plain natural meaning. What is more, there are three judgments of the Calcutta High Court, all delivered by single Judges undoubtedly but all of them sitting on the original side and having experience of the original side practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfectly clear that while laying down the conditions, the learned Judges also had present to their minds the possibility of breaches of the conditions and for such possible breach, they themselves prescribed the penalty. It will be remembered that, according to the default clause, if any default was committed in respect of any of the conditions Nos.1, 2 and 4, the Rule would stand discharged and the consequence of a discharge of the Rule would be that the property would revert to the possession of the receiver. It is thus clear that the learned Judges in making the order of the 15th May, 1951 did not impose any absolute obligation on the opposite parties in respect of preserving the cinema house in a proper condition but gave them a choice. The choice was that they would have either to preserve the property in proper condition and keep it in their possession or if they failed in doing so, they must submit to the receiver resuming possession of the cinema house. The learned Judges therefore held that there was no room left for any case of contempt to arise in that case. In the present case the undertaking said to have been given to the Court to vacate the premises on or before 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefore be regarded as justifying the exercise of the discretionary powers of this Court to order committal for contempt. (b) "In the present case, the undertaking to the Court was not formally embodied in the order directing the compromise to be recorded, nor was it specifically set forth in the decree. It may be that the clear implication of the order was that there was an undertaking to the Court to vacate the premises on or before the 2nd January, 1952. At the same time a litigant in the position of the opposite party might have been under a bona fide misapprehension as to the effect of the order of this Court and the decree passed therein. 55. In order to apply the proposition of law laid down in above quoted decision we have to construe the terms and try to find out if the terms fall within the mischief of the decision. 56. We have already hereinbefore set out the terms of the decree in S.A. 770 of 1958 in extensor. The terms of compromise were not recorded by the parties in writing. The terms were recorded by this Court on the representation made by Advocates for the parties. The terms were: - (a) The defendant respondent shall quit and vacate the premises in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaking to this Court that you will quit, vacate and render peaceful possession of the disputed premises on the expiry of the month of July, 1962? - Yes. 4. Now, did you honour that undertaking and quit the premises on the expiry of July, 1962? - Yes. 5. When did you do this? - On the 25th July, 1962, I wrote a letter under postal certificate and on the 30th I received a telephone call stating that they could not take possession because there was a stay from another bench. I do not remember the exact number. 6. Who obtained that stay order? - I moved that application before July, 1962, I got the stay. 7. Stay of the undertaking given by you in this Court? - That was in another case. 8. Do you say that you obtained a stay of the undertaking given to this Court? - No. 9. What was the nature of the stay? - The landlord granted a receipt to me. From that time onward, I became a tenant and began to deposit rent with the Rent Controller. There was another order from the Court to submit further rents to the landlord besides the rent already deposited with the Rent Controller. Then, in that suit, again, there was a compromise. After compromise, they again, wanted to execute the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing me. 53. (Banerjee, J.) Who is this Lilabati Sharma? - The wife of Sree Rameswar Sharma, in whose name the electricity bill stands even to-day. There is telephone also in the name of Unity Production in which Mr. Rameswar Sharma is a partner. *** 144. How did Lilabati come to the scene? - I really do not know but when summons were served I came to know that she was a tenant. 145. Which summons? - Lilbati has filed some suit against the land-lady. 147. How are you concerned in that suit? - I have been made a party by her. 148. You know nothing about this Lilabati? - I only know that she was the wife of my partner Rameswar Sarma, who is the real tenant. 149. Real tenant in respect of which premises? The premises in dispute. 150. How could she become the real tenant? - According to the receipts given by them and the agreement. 151. Which Agreement? Which receipt? - Receipts given by the landlady to Sarma and they have admitted in their plant that Mr. Sarma is their tenant. 152. In which plaint? - In suit No.258 of 1953. 153. Do you remember you filed a written statement in the said suit? - Yes, I did file. 154. According to you who was the tenant in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, so I thought I was the tenant. I did not know law. Therefore, I was giving up possession, but later on, when I got the copies of the papers from the Court, I found that they have made Lilabati that they have made Lilabati the tenant. 173. In answer to my question on the last occasion, that was on the 24th May, you said that she (Lilabati) is the real tenant, I am not the tenant? - Yes. 174. You said in the written statement in suit No. 258 of 1953 that you were the real tenant and no one else - which statement is correct? - When I made the written statement I did not know the real position. Only the landlady knew the real position, then I thought I was the real tenant, but now I have come to know from the papers that they have made her the real tenant. 62. In our opinion, it is not open to the opposite party to say now that he was not the tenant but Lilabati is and that it is impossible for him to give up possession of the disputed premises in possession of another tenant. 63. Mr. Sen Gupta invited our attention to the copy of the plaint in T.S. 258 of 1953 (hereinbefore set out in material particulars), in which the present petitioner described Lilabati as the tenant and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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