Basak, B.C., J. - (1.) : This application in contempt arises out of an Order passed by us on the 8th August 1986. The short facts of this case are as follows. The petitioner herein filed a Title Suit against the defendant-tenant, who is the contemner-respondent in the present proceeding, praying for a decree for recovery of khas possession of the suit premises as described in the plaint. The said suit was decreed on 18th June, 1981 and an appeal being Title Appeal No. 793 of 1981 preferred against the said decree was dismissed and the decree passed by the First Court was affirmed by the judgment and decree dated 11th April, 1986 passed by the learned Additional District Judge, Alipore. The contemner-opposite party sought to prefer an appeal being S. AT, No. 1905 of l986 against the said decree, dated 11th April, 1986 which came up for admission of appeal under Order 41 Rule 11 of the Civil Procedure Code before us wherein we dismissed the appeal on 5th of August 1986. Thereafter an application was made by the contemner-opposite party for re-calling our Order, dated 5th August 1986. The said application was disposed of by us on the 8th of August 1986 wherein we passed the following Order. "In this matter we dismissed the appeal under Order 41 Rule 11 of the Civil Procedure Code on 5th August 1986. Now the tenant defendant filed an application for recalling the said order. Mr. Roy Chowdhury appearing for the appellant very fairly submits that if six months time is given to his client to vacate the suit premises then his client would voluntarily vacate the suit premises and that he will not press the application. The appellant is present in Court today and upon outh to that effect he has given his undertaking that he will vacate the suit premises voluntarily within the period to be granted. Such undertaking will form part of this Order. Accordingly, we directed that the tenant appellant shall vacate the suit premises within 10th February 1987. In the meantime, the execution proceeding may take place but no effect shall be given to the same till 10th February, 1986, This application is disposed of as above".
(2.) This contempt application was filed on 26th March 1986 on the ground that in spite of such Order of this Court, dated 8th August 1986 the contemner-respondent has failed and neglected to vacate the suit premises, by the 10th February, 1987 that is within six months time granted by this Court. This application was admitted and a Rule Nisi was issued. All affidavit-in-opposition has affirmed in this proceedings by the contemner which practically does not make out any defence at all. On the other hand, it appears from the same that the contemner-respondent has chosen to file a suit subsequently being Title Suit No. 14 of 1987 before the 5th Court of the Munsif at Alipore, praying for the following relief. "The plaintiff claims judgment and decree for: (a) declaration that the plaintiff is a tenant under the defendant at a rental of Rs. 20 (Rupees twenty only) per month payable according .to English Calendar month. (b) declaration that the plaintiff has right to stay in the suit premises as long as the defendant has no real intention to use the suit premises as his office-cum-chamber. (c) declaration that the defendant has no right to evict the plaintiff from the decree passed in Title Suit No. 252 of 1979 of the 3rd Court of Additional Munsif at Alipore for the purpose of' using it as a drawing room or for any other purpose other than the purpose of chamber-cum-office and by proceeding with the T. Ex. Case No. 31 of 1986 of the 3rd. Additional Court of the Munsif, Alipore. (d) Permanent injunction restraining the defendant from evicting the plaintiff from the suit premises by executing the decree passed in Title Suit No. 252 of 1979 for the purpose of drawing-cum-study room or for any purpose other than that for, which the decree was passed and from proceeding with the T. Ex. Case No. 31 of 1986, of the 3rd. Additional Court of the Munsif, Alipore and from dispossessing the plaintiff from the suit premises and also restraining the defendant, his men and agents from interfering with the plaintiff's peaceful possession",
(3.) It is further stated in the said affidavit that he had also 5lecl an application under Order 39 Rule 1 read along with Section 151 of the Code of Civil Procedure praying for temporary injunction restraining the defendant from evicting the plaintiff from the suit premises by executing the decree passed stated that an appeal has also been preferred being Miscellaneous Appeal to the Rule issued when the contemner-respondent appeared in Court on the 4th May 1987, we asked him through his Advocate whether he was willing to comply with the order even at that stage, that is, on that date or by the next date. Through his learned Advocate, he stated that he was not in a position to do so. Accordingly direction for filing of affidavit was given. At the time of the hearing of this application the Advocate for the petitioner has submitted that a clear case of contempt has been made out. There has been willful violation of the Order of the Court arid the undertaking given by the contemner-respondent. On behalf of the contemner-respondent practically no submission was made. We adjourned the matter for passing Final Order. When the matter appeared on 28th July 1987, we appointed Mr. Arup Basu an Advocate as Special Officer to take possession of the same as on that occasion, which was after the conclusion of the hearing and before the final order was passed, the contemner-respondent made an offer to hand over the possession of the premises in question. Pursuant to that the special Officer had taken over possession and subsequently handed over possession to the petitioner.;