SURETENNESSA BIBI Vs. CHINTAHARAN DAS

JUDGEMENT

(1.) This rule was issued on the opposite party to show cause why he should not be committed to prison for contempt of this Court for breach of a personal undertaking given by him to this Court in Second Appeal No. 1461 of 1953. The facts relevant for the purposes of this Rule may be briefly stated as follows: The petitioner Suretennessa Bibi instituted a suit for ejectment against there opposite party Chintaharan Das in respect of premises No. 37D, Surendra Nath Banerji Road. The petitioner succeeded in getting as decree for ejectment in the Courts below and against the decree of the lower appellate Court the opposite party Chintaharan Das filed a second appeal which was registered' and numbered as S. A. 1461 of 1953. That second appeal came up for Hearing under Order 41, Rule 11, Civil P. O., before this Court on 1-12-1953 on which date the following order was recorded by the Court: "This appeal will be heard. The records need not be sent for and the usual notices need not issue, as it is represented to 'us that Mr. Charu Chandra Ganguly, Advocate, has got instruction to appear for the 'sole respondent. Mr. Ganguly is permitted to enter appearance for the' sole respondent. This appeal is disposed of in terms of the Joint petition of compromise filed by the parties in Court today. This petition will form part of the decree of this Court."

(2.) The Joint petition of compromise which was filed by the parties was supported by an affidavit by Chintaharan Das on behalf of the appellant and by Abdul Gani on behalf of the respondent. Paragraph 2 of the petition runs as follows: "The aforesaid appellant gives a personal undertaking to the Hon'ble Court that he will give quiet and vacant possession of the premises in question (which is the .subject-matter of the suit and appeal) to the aforesaid respondent by 25-2-1954." Paragraph 3 of the petition permits the respondent to withdraw the amount deposited by the appellant as cost. These are the only two terms upon which the appeal was allowed to be compromised on 1-12-1953. Thereafter the respondent Suretennessa Bibi filed an application before us alleging that though the appellant Chintaharan Das undertook to give quiet, and vacant possession of the premises by 25-2-1954, he had failed to do so and accordingly the petitioner applied for a Rule upon the opposite party Chintaharan Das to show cause Why he should not be commit-ed to prison for breach of the personal undertaking given to this Court. It appears that the opposite party Chintaharan Das addressed a letter to the petitioner Suretennessa Bibi bearing the date 26-2-1954 in which he stated that he had vacated the house after Informing the petitioner verbally. In spite of his request to take possession of the house as well as the articles of furniture neither the petitioner nor her representative turned up and as such the opposite party was compelled to keep the articles under lock and key. This letter has been filed by the petitioner with his petition and it is marked as annexure "B". To this letter the petitioner sent a reply on 28-2-1954 denying the allegations that the opposite party was prepared to give vacant possession of the premises on or before 25-2-1954. The petitioner further alleged that upon enquiry she was satisfied that the premises were still in the possession of the opposite party who had not yet vacated the same and in this letter the petitioner charged the opposite party with having taken no step to comply with the terms of the solenama filed in this Court.

(3.) The opposite party in showing cause before us has stated that he had sub-let a considerable portion of the premises in dispute long before the institution of the suit for ejectment and that the petitioner Suretennessa Bibi was aware of this fact. It is curious that this allegation was not made in the letter which was addressed by the opposite party to the petitioner on 26-2-1954 nor was it mentioned in the affidavit which was sworn to by the opposite party in support of the petition of compromise filed in this Court on 1-12-1953. If the allegation made by the opposite party to the effect that he had sub-let a considerable part of the premises long before the institution of the suit and therefore it was not possible for him to give vacant possession to the petitioner on or before 25-2-1954 be correct, we must hold that the opposite party was guilty of having fraudulently suppressed this fact from this Court when he gave a solemn undertaking to this Court to vacate the premises in dispute on or before 25-2-1954. The letter which the opposite party wrote to the petitioner on 26-2-1954, in our opinion, is a mere eye-wash and was written for the purpose of creating evidence in his favour that he had complied with the terms of the undertaking given by him in his affidavit in this Court.