Kania, J. - (1.) Leave granted. The appeal is taken up for final hearing. Counsel heard.
(2.) The short facts necessary for the disposal of the appeal are as follows: The appellant is the owner of a bungalow known as "Villa Hormazd" at 8-A Carmichel Road, Bombay. The suit premises, comprising two floors of the said bungalow, were leased to Mayer Mills Ltd. under a lease deed dated April 16, 1948 for a period of three years from November 1, 1947. At that time, the bungalow belonged to the father of the appellant. On the death of the father of the appellant in 1949, the appellant became the landlady of the said bungalow. Respondent No. 1, B. R. Cotton Mills Ltd., is the successor-in-interest of Mayer Mills Ltd. and at the relevant time was in possession of the suit premises as a tenant. Respondent No. 2 is the Chairman of respondent No. I and the other respondents are some of the Directors of respondent No. 1. The appellant filed a suit being R.A.E. No. 763/65-63 of 1966 in the Small Cause Court at Bombay for eviction of respondent No. 1 from the suit premises and for possession on the ground of reasonable and bona fide requirement. During the pendency of this suit, another suit for eviction was also filed by the appellant against respondent No. 1 for eviction on the ground of default in the payment of rent for a period of more than six months. The Trial Court by its judgment dated September 13, 1975 decreed the aforesaid eviction suit R.A.E. No. 763 / 6563 of 1966 (hereinafter referred to as "the said suit') but the other suit for eviction filed by the appellant was dismissed in view of the eviction decree passed in the said suit, Respondents Nos. 1 and 2 filed an appeal against the decree for eviction but the said appeal was dismissed. In February 1986, the husband of the appellant died and after that the appellant is the landlady of the said bungalow. On the other hand, the appeal of the appellant against the dismissal of her other suit, for eviction on the ground of default in payment of rent was allowed and that suit was also decreed against respondent No. 1. The respondent then filed a writ petition in the High Court at Bombay challenging the decrees for eviction passed by the Court of Small Causes as aforestated. On February 27, 1987, respondent No. 2 filed a suit in the Court of Small Causes for a declaration that he was the lawful sub-tenant of the suit premises and was not bound by the decrees of eviction passed in respect of the suit premises against the tenant, namely, respondent No. 1. The said Writ Petition No. 1066 of 1987 filed by respondent No. 1 challenging the decrees for eviction passed against respondent No. 1 in the said suits and confirmed in appeal came up for hearing before a learned single Judge of the Bombay High Court on March 6, 1983. The learned Judge by his judgment and order of the same date, dismissed the said writ petition. The relevant part of the order of the learned Judge reads as follows: "The petitioner requests for time of eight weeks to vacate the premises. He is granted the said time subject to executing written undertaking that he shall not part with the possession of the suit premises or create third party interests in the suit premises in the meantime in any manner whatsoever."
(3.) On March 11, 1987, the matter was brought up again before the learned single Judge by learned counsel for the appellant for pointing out that respondent No. 1 had not filed the requisite undertaking as directed under the order dated 5-3-1987. It appears that at that stage it was pointed out to the Court by Mr. Dalvi, learned counsel for the appellant that respondent No. 2 had filed a declaratory suit in the Court of Small Causes as aforestated claiming to be the sub-tenant of tile suit premises. The order of the learned .Judge dated March 11, 1987 shows that the learned Judge stated that he did not wish to take any action at that time on the conduct of respondent No. 1 but, as a last chance, granted respondent No. 1 time up to March 17, 1987 for furnishing the undertaking as ordered failing which it would be deemed that the condition was not fulfilled. Respondent No. 3, as a Director of respondent No. 1, by his affidavit, affirmed on March 17 1987, gave an undertaking merely stating that respondent No. 1 would not commit any act contrary to or in breach of the order dated March 5, 1987. It was pointed out by the appellant that this undertaking was not in compliance with the orders passed by the learned single Judge. After some correspondence, respondent No. 3, by his affidavit affirmed on March 25, 1987 filed an undertaking on behalf of respondent No.1 inter alia stating that respondent No. 1 would not part with the possession of suit premises or create any third party interest in the suit premises in any manner whatsoever. The undertaking did not state that respondent No. 1 had not, before the undertaking was given parted with the possession of the suit premises or created any third party interest therein. When the matter came up on March 31, 1987 before the learned single Judge who had given time to respondent No. 1 to vacate as aforesated, it was pointed out by learned , counsel for the appellant that the undertaking was objected to as it did not state that respondent No. I was in, possession. Thereupon Shri R. J. Joshi, learned counsel for respondent No. 1 company, stated that the undertaking spoke for itself and when it stated that respondent "shall not part with possession" it meant that respondent No. 1 company was in possession. In view of this, the learned Judge did not give any further clarification. Respondent No. 1 preferred a special leave petition to this court against the judgment of the learned Judge dismissing the said writ petition but the said special leave petition was dismissed. Thereafter the suit filed by respondent No. 2 in the Court of Small Causes for a declaration that he was the lawful sub-tenant of the suit premises was dismissed but he preferred an appeal against the said decision and in that appeal obtained an interim injunction restraining the appellant from interfering with his possession of the suit premises. In view of this, the decree for eviction could not be executed. Thereafter in June 1987, the appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court setting out the facts and praying that the respondents should be punished under the provisions of the Contempt of Courts Act, 1971. It has been inter alia alleged in the contempt petition by the appellant that in spite of the said undertaking, respondent No. 2 had filed a suit, being suit No. 2911 of 1987 in the City Civil Court at Bombay claiming a declaration that the decree for possession was a nullity and for an injunction restraining the appellant from executing the decree and obtained an adinterim injunction a few days after the summary dismissal of the special leave petitions filed by the respondents in this Court as aforestated. The said suit was thereafter dismissed for non-prosecution but, in the meantime, respondent No. 2 filed the suit in the Court of Small Causes for a declaration that he was the lawful sub-tenant of the premises as aforestated. It was submitted by the appellant in the contempt petition that the said undertaking given by respondent No. 1 clearly implied that on the date of the undertaking, respondent No. 1 was in possession of the suit premises and in order to defeat the decree for possession, respondent No. 1 had set up its Chairman, respondent No. 2, to file the aforesaid suit in the Court of Small Causes claiming sub-tenancy. It was further submitted by the appellant that although respondent No. 1 continued to be in possession of the suit premises it had set up respondent No. 2 to file the suits on the ground that he was in possession of the suit premises as a sub-tenant in his own right and continued to be in possession thereof. The learned Judge before whom the said contempt petition came up for hearing took the view that in the order of the learned single Judge dated March 5, 1987, he was unable to read any direction to file an undertaking to give possession. He took the view that the aforesaid undertaking given on behalf of respondent No. 1, that it would not part with possession or create any third party interest in the suit premises, did not imply that respondent No. 1 was in actual physical possession of the suit premises and that the fact that respondent No. 2 was claiming an independent title in himself as a sub-tenant by virtue of a Resolution of respondent No. 1 was not sufficient to hold that respondent No. 1 or the other respondents were guilty of contempt. He took the view that there was no undertaking by respondent No. 1 to deliver possession of the suit premises and on the basis of these conclusions, he rejected the contempt petition. At the same time the learned Judge did observe that respondent No. 1 may have indulged in sharp practices but held that it was not guilty of contempt. The present appeal is directed against this order.;