Court No. - 5

Case :- CONTEMPT APPLICATION (CIVIL) No. - 1996 of

2022

Applicant :- Sudha Jain

Opposite Party :- Heera

Counsel for Applicant :- Satyendra Narayan Singh

Hon'ble Saral Srivastava,J.

Heard learned counsel for the applicant.

It appears that opposite party has assailed the order dated

27.01.2020 and 29.10.2018 passed by Additional District Judge,

Court No.3, Muzaffar Nagar and Judge Small Cause Court Civil

Judge (S/D), Muzaffar Nagar by which decree for vacation

against opposite party has been passed in Matter Under Article

227 No.605 of 2021 in which this Court has dismissed the writ

petition on the undertaking given by opposite party, which is

quoted herein below:-

"However, having considered the facts and circumstances of the case,

subject to filing of an undertaking by the tenant-revisionist before the

Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful possession of the

premises in question to the landlord-opposite party on or before

30.8.2021.

(2) The tenant-petitioner shall file the undertaking before the Court below

to the said effect within two weeks from the date of receipt of certified

copy of this order;

(3) The tenant-petitioner shall pay entire decretal amount within a period

of two months from the date of receipt of certified copy of this order;

(4) The tenant-petitioner shall pay damages @ Rs. 3,000/- per month by

07th day of every succeeding month and continue to deposit the same in

the Court below till 30.8.2018 or till the date he vacates the premises,

whichever is earlier and the landlord is at liberty to withdraw the said

amount;

(5) In the undertaking the tenant-revisionist shall also state that he will

not create any interest in favour of the third party in the premises in

dispute;

(6) Subject to filing of the said undertaking, the tenant-revisionist shall not

be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions

mentioned herein-above, the protection granted by this Court shall stand

vacated automatically.

(8) In case the shop is not vacated as per the undertaking given by the

revisionist, he shall also be liable for contempt."

However, in paragraph 8 of the undertaking, it is clearly stated

that in case the shop is not vacated as per the undertaking given

by the revisionist-opposite party, he shall also be liable for

contempt.

Learned counsel for the applicant submits that according to

undertaking, opposite party had to vacate the shop in question

by 30.08.2018, but he did not vacate the shop within the time

and has vacated the same on 11.10.2021 without paying

damages of the shop in question for the period after 30.08.2018

and thus, he is liable to be punished for contempt of Court.

Be that as it may, paragraph 8 of the undertaking reveals that

opposite party is liable for contempt if the shop in question is

not vacated. It is not in dispute that shop has been vacated. So

far as unpaid amount towards damages after the period

30.08.2018 is concerned, the applicant has remedy of executing

the decree.

It is needless to say that if execution application is dismissed on

the basis of undertaking given by opposite party before the

Court and if the undertaking has not been compiled with in

letter and spirit by not paying the damages after the period

30.08.2018, the applicant has remedy to file recall application

before the Executing Court to proceed afresh for unpaid

damages to which applicant is entitled under the decree.

This Court is not inclined to proceed in contempt for one more

reason that the question as to whether opposite party has paid

the damages for the period of occupation after 30.08.2018 is a

question of fact which can be determined on the basis of

evidence and material brought on record by the parties, and

therefore, such factual question cannot be decided by this

Court.

The contempt applicati