IMPORTANT POINT
An undertaking to the Court may be impliedly incorporated in the order of the Court.

JUDGMENT

V. D. Misra, C.J. - This appeal is directed against the judgment of a learned Single Judge holding the appellant guilty for contempt of court and directing the detention of the appellant in civil prison for a period of four months in addition to the payment of fine of Rs. 2,000/-. There is also an appeal for enhancement of sentence.

2. The main question which falls for determination in this appeal is whether the undertaking given by the appellant was to the court. It is not denied that an undertaking was in fact given. The learned counsel for the appellant has been at pains to show that) the undertaking was not given to the court and therefore, the appellant could not be held guilty.

3. Now to the facts. M/s. Clarks Hotel Private Ltd., (referred to as the plaintiff) in running a hold on the Mall Simla. There was a vacant plot in front of this hotel. This plot formed a part of the estate known as 'Tal bot House'. A multi-storeyed shop cum-hotel building was planned to be put up there. A building plan was submitted by the appellant to the Municipal Corporation, Simla. The plan was sanctioned. The plaintiff appealed to the Deputy Commissioner, Simla, who remanded the case to the Municipal Corporation. However, the appellant continued with the construction. The plaintiff, therefore, filed a civil suit No. 28 of 1978. It was, inter alia, prayed that the appellant be restrained from making any construction.

4. The plaintiff also made an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (O.M.P. No. 98 of 1978) praying for an ad-interim injunction restraining the appellant from making any further construction. This application came up for hearing on the original side before a learned Single Judge of this Court on 23rd March, 1979. Shri Yoginder Paul, Advocate, who appeared on behalf of the appellant, made the following statement:

"The defendant has so far constructed six shops on the ground floor consisting of two blocks each of three shops with a passage in the center. On the right hand side block of three shops which adjoins the Panwari's shop, the construction on the ground first and second floor is complete. On the third floor only two rooms have been constructed so far and the remaining portion is lying vacant. In the other block, the construction of all the three shops on the ground and first floor only is complete. The defendant undertakes not to raise the height of the construction above the existing height as mentioned above and in addition undertakes not to raise any fresh construction on any adjoining land. The defendant, however, shall be entitled to enclose the walls of the portions on which the pillars have been raised and slabs have already been laid. The defendant shall also be entitled to carryon the internal work for completion of the aforesaid blocks already completed and roofed.”

After hearing the statement made by Shri Paul, the plaintiff's counsel made the following statement:

"In view of the above statement made by the learned counsel for the defendant I do not press O.M.P. No. 98 of 1978. It will, however not prejudice the rights of the Municipal Corporation, defendant No. 2."

The Court passed the following order:

"In view of the statement of the learned counsel made on behalf of defendant No. 1, O.M.P. No. 98 of 1978 is dismissed as not pressed."

5. Another material development may also be recorded. The appellant made an application (O.M.P. No: 49 of 1979) under Order 39, Rule 4 and section 151 of the Code of Civil Procedure praying for modification/clarification of the aforementioned order by allowing the appellant to put the slab on the third storey also otherwise the fencing and iron shuttering is likely to be damaged entailing into great loss to the defendant." A reference was made to the statement made by the counsel of the appellant on 23rd March, 1979. The heading of the application reads: "An application under Order 39, Rule 4, read with section 151 of the Code of civil P