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1980 Supreme(Bom) 83
IN THE HIGH COURT OF BOMBAY
Sawant P.B., J.
Dwarkadasmulji And Others.... Appellant.
Versus
Shantilal Lax Midas Gandhi And Another... Respondents.
Contempt Petition No. 53 of 1979, decided on 7-3-1980.
Advocates appeared:
K.J. Abhyankar. for petitioners
S.H. Thatte with Sarvashri Thatte Co. for respondent No. 1.
Y. Mirza, Asstt. Govt. Pleader. for respondent No. 2-R.
A party to a proceeding which is void ab initio cannot be said to commit a contempt of Court for not complying with an undertaking given in such proceeding.
Headnote:
CONTEMPT OF COURT - BREACH OF UNDERTAKING - VOID PROCEEDINGS - JURISDICTION - [SECTION 10, CONTEMPT OF COURTS ACT, 1971] - Whether a party to a proceeding which is void ab initio can be said to commit a contempt of Court for not complying with an undertaking given in such proceeding.
Fact of the Case:
The respondent filed a suit in the Small Causes Court, Bombay, for a permanent injunction restraining the petitioners from dispossessing him of the suit premises except by due process of law. During the course of the hearing, the parties arrived at consent terms, under which the respondent agreed to vacate the suit premises by a certain date. The respondent failed to vacate the premises and the petitioners filed a contempt petition against him.
Finding of the Court:
The Small Causes Court had no jurisdiction to entertain and try the suit, and hence the suit itself was void ab initio. All orders passed and all representations made therein including undertakings given by the parties will have also to be held as void.
Issues: Whether a party to a proceeding which is void ab initio can be said to commit a contempt of Court for not complying with an undertaking given in such proceeding.
Ratio Decidendi: If a proceeding is ab initio void, all orders passed and all representations made therein including undertakings given by the parties will have also to be held as void. When a proceeding is void it is in the eyes of law non est or non existent and therefore everything done therein loses its legal existence.
Final Decision: The petition was dismissed and the rule granted therein was discharged with no order as to costs.
an undertaking given in such proceeding.
2. The facts leading to the present contempt petition are as follows:-
The petitioners are the trustees of a public charitable trust known as Kuverbai Dayal Bhimji Sanatorium Trust. They run a sanatorium situate al Kamla Nehru Cross Road, Kandivli West, Bombay-69. The sanatorium has several blocks and those blocks are given to the members of the Hindu Community for a period of two to three months on health grounds on a nominal charge. Some time in the month of December 1976, the first respondent(hereinafter referred to as the respondent) approached the petitioners for allowing him to use one of the blocks on the ground of health for a temporary period. Accordingly the respondent was allowed to use Block No. 2 on the ground floor of the said sanatorium(hereinafter referred to as the suit premises) for a period of two months from 1-]-1977 to 28-2-1977 on monthly charges .of Rs. 200. It may be mentioned that the Suit premises are fully furnished with all the fittings and furniture necessary for occupation as residence. Subsequently, the period was extended by one more mouth upto 31-3-1977 on the respondents application made for the purpose. However, in spite of the expiry of the said extended period, the respondent did not vacate the suit premises. Instead, on 14-4-1977 he filed a suit in the Small Causes Court, Bombay, being R. A. Declaratory Suit No. 1629 of 1977 and prayed for a permanent injunction restraining the petitioners Nos. 1 and 2, their agents and servants from dispossessing him and his family members of the suit premises except by due process of law. In that suit, he applied for an ex-parte ad interim injunction and obtained the same on the day he filed the sui. Thereafter the said ex-parte ad interim injunction was vacated by the said Court by its order dated 10-6-1977 and his appeal against the Said order vacating the injunction, also failed. Thereafter the suit Itself came up for hearing and during the course of the hearing, on 20-1-1979 the parties arrived at consent terms. Under the said consent terms, the respondent, among other things, agreed and undertook to vacate the suit premises by. 31-5-1979. It is this undertaking given to the court which has given rise to the present contempt petition.
3. Before the period to vacate under the said undertaking expired, the respondent made an application to the Small Causes Court for setting aside the said consent terms On the ground that they were nun and void, since the suit filed by him in which the said consent terms were filed, was without jurisdiction. The Small Causes Court by its order dated 16-6-1979 dismissed the said application on the ground that the suit was not maintainable in the said Court and hence the suit itself ought to have been dismissed for want of jurisdiction. The Court therefore held that since the suit itself was without jurisdiction the consent terms filed in the said suit were void ab initio. The Court further held that since the suit was dismissed and no decree was passed. no application lay under section 47 of the Civil Procedure Code since an application under the said provision was maintainable only if a decree was passed. The Court therefore, dismissed the said application. Thereafter, petitioners Nos. 1 and 2 filed the present contempt petition in this Court under the Contempt of Courts Act, 1971(hereinafter referred to as the said Act), for taking action against the respondent under section 10 thereof for, committing breach of the said undertaking given by him on 20-1-1979 to vacate the suit premises by 31-5- 1979.
4. The petition. was contested by the respondent by raising four preli-minary objections. The first objection was that the Trust was Dot a registered Trust an
