JUDGMENT
K.S. Radhakrishnan, J.
1. The question that has come up for consideration in this contempt case is whether after having made an undertaking that the tenant would vacate the tenanted premises on the strength of the order of this Court he could wriggle out of the undertaking by not surrendering the premises and whether such a conduct would amount to civil contempt under the Contempt of Courts Act, 1971.
2. This Court allowed C.R.P. 1666/02 preferred by the landlady and granted time to the tenant upto 30.6.2004 for vacating the premises on condition that he should file an undertaking before the Rent Control Court within one month stating that he would vacate the premises within the aforesaid time, and that he would pay the arrears of rent if any and also future rent. The relevant portion of the order is extracted below for easy reference.
“Considering the facts and circumstances of the case we are inclined to grant time to the tenant upto 30.6.2004 for vacating the tenanted premises provide the files an undertaking before the Rent Control Court within one month stating that he would vacate the premises within the aforesaid time and that he would pay the arrears of rent if any and also future rent.”
“R.C.O.P. 70/97
3. The time granted by this Court expired on 30.6.2004. Tenant did not surrender the premises. Consequently landlady moved the executing Court and the executing Court ordered delivery and posted the case for report on 16.7.2004. Complaint of the landlady is that in the meantime, the tenant caused his daughter-in-law to file a suit, O.S.483/04 before the Munsiff s Court, Kollam for a permanent prohibitory injunction restraining the landlady from evicting her from the tenanted premises stating that she is in possession of the tenanted premises. Plaintiff in the suit has obtained an interim injunction against eviction as per order in I.A.2153/004 dated 24.6.2004. Landlady entered appearance in the suit and prayed for vacating the interim injunction. Consequently the Munsiff vacated the injunction order on 6.7.2004. While vacating the injunction order the learned Munsiff has stated as follows:
“The plaintiff could not produce any document to show that she is the tenant in the petition schedule shop room and admittedly she is the daughter-in-law of the second respondent in this case. Though the plaintiff/petitioner alleged that she is in inimical terms with the second respondent, she failed to prove the same. On going through the entire facts and available evidence of this case it is proved that the first respondent already obtained an order for eviction in his favour from the Rent Control Court as well as from the Honourable High Court of Kerala. Therefore the plaintiff who is the daughter-in-law of the second defendant, filed this suit as well as the petitioner collusively with the second respondent only for delaying the execution proceedings in RCOP.70/97. The plaintiff could not produce any evidence to prove that a prima facie case is in her favour.”
Complaint of the landlady is that in spite of the fact that the Civil Court has vacated the injunction order the tenant did not surrender the tenanted premises but instigated his daughter-in-law to file a claim petition before the executing Court so as to further delay the delivery of the property. Petitioner has therefore approached this Court to take appropriate action against the tenant for violating this Court’s order under the Contempt of Courts Act.
4. Counter affidavit has been filed on behalf of the respondent tenant. Tenant took up the stand that he stopped the business in the tenanted premises and now the business is being carried on by his daughter-in-law. It is also stated that he was under the impression that his daughter-in-law would vacate the premises, but she filed C.S. No. 483/04 against him and the petitioner herein and also filed a claim petition, E. A. 210/04 before the executing Court under Order XXI, Rule 97 and Section 47 of the Code of Civil Procedure. Counsel also placed reliance on the decision of the Apex Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal (AIR 1997 SC 856) and stated that the claim raised by the obstructor has to be adjudicated in the execution proceedings.
5. We are of the view after giving an undertaking before the Rent Control Court that the tenant would surrender the premises on the strength of the order passed by this Court in C.R.P. 1666/02, the tenant is duty bound to vacate the premises and the landlady shall not be driven to the executing Court for delivery. In cases where time is not granted by this Court, necessarily executing Court has to be moved. In cases where tenant has given an undertaking either before this Court or before the Rent Control Court tenant is duty bound to vacate the premises voluntarily. Failure to comply with the undertaking, in our view, would enable the other party to initiate contempt of court proceedings.
6. We may in this connection refer to a decision of the Apex Court in Ram Pyari v. Jagdish Lal ((1992) 1 SCC 157). In that case the tenant filed S.L.P. (C) No. 10620 of 1985 before the Apex Court against the order passed by the High Court of Allahabad. Special Leave Petition was dismissed by the Apex Court by order dated 11.2.1986. However, three months time was granted by the Apex Court on the following conditions:
1. That the petitioner will hand over vacant and peaceful possession of the suit premises to the respondent on or before three months from today.
2. That the petitioner will pay to respondent arrears of rent, if any, within one month from today.
3. That the petitioner will pay to respondent future compensation for use and occupation of the suit premises month by month before the tenth day of every month.
4. That the petitioner will not induct any other person in the suit premises.
The Apex Court further directed that in default of compliance with any one or more of these conditions or if the undertaking is not filed as required within the stipulated time, the decree shall become executable forthwith. The order was not complied with and a contempt petition was moved before the Apex Court. The Apex Court noticed that no undertaking was given even then Court examined the question whether the tenant is guilty of contempt of Court. The Court noticed that there was no violation of any specific direction contained in that order since the tenant did not file undertaking, but the Court did not agree with the tenant that the remedy will be only to execute the decree for eviction. Apex Court directed the executing Court to cause to deliver up the vacant possession of the building in question with the help of the police. The Apex Court had also occasion to consider identical question in Rita Markandey v. Surjit Singh Arora ((1996) 6 SCC 14). That was a case where time was granted subject to usual undertaking. No undertaking was given and therefore contention was raised that no proceedings of Contempt of Court Act would lie. The Apex Court held as follows :
“If any party gives an undertaking to the Court to vacate the premises from which he is liable to be evicted under the orders of the Court and there is a clear and deliberate breach thereof it amounts to civil contempt but since, in the present case, the respondent did not file any undertaking as envisaged in the order of the Supreme Court the question of his being punished for breach thereof does not arise. However, even in a case where no such undertaking is given, a party to a litigation may be held liable for such contempt if the Court is induced to sanction a particular course of action or inaction on the basis of the representation of such a party and the Court ultimately finds that the party never intended to act on such representation or such representation was false. In other words, if on the representation of the respondent herein the Court was persuaded to pass the order extending the time for vacation of the suit premises, he may be held guilty of Contempt of Court, notwithstanding non-furnishing of the undertaking, if it is found that the representation was false and the respondent never intended to act upon it”.
In the instant case while disposing C.R.P. 1666/02 on a request made by the counsel for the tenant time was granted by this Court upto 30.6.2004 for vacating the premises and directed the tenant to file an undertaking within a period of one month from the date of the said order before the Rent Control Court. On the basis of the said direction the tenant made an undertaking before the Rent Control Court stating that he would vacate the premises on or before 30.6.2004. Failure to vacate the premises before 30.6.2004 would amount to violation of the undertaking and appropriate action could be taken on the basis of the provisions of the Contempt of Court Act, 1971. Even in a case where time was obtained for vacating the premises and no undertaking has been made, still the conduct of the tenant in not vacating the premises would visit with Contempt of Court proceedings. But for the time granted at the request of the tenant the landlady would have initiated execution proceedings. Having stalled the execution proceedings the tenant cannot be heard to contend that the only remedy open to the landlady is to execute the order. We are of the view in appropriate case this Court could initiate proceedings under the Contempt of Court Act in case the undertaking is not complied with. Power is also vested in this Court to order delivery of the tenanted premises.
7. Tenant however, has taken a contention that he is not in occupation of the tenanted premises and that his daughter-in-law is in possession of the tenanted premises and that she has filed a claim petition before the executing Court and therefore he has not committed any contempt. Since respondent-tenant stated that he is not in possession of the building we are of the view the landlady could straightaway occupy the tenanted premises on the ground that the tenant has already vacated the premises on 30.6.2004. If anybody has occupied the premises unauthorisedly to overreach the orders of the Court landlady could approach the police for police aid to remove the unauthorized occupation, so that the judgment rendered by this Court could be fully implemented. We are inclined to give a direction to the executing Court to effect delivery of the property with police aid within two weeks from the date of production of a copy of this judgment before the executing Court. Since the tenant has stated that he is no more in possession of the property we are not initiating any contempt of court proceedings.