1. Mushtaq Hussain Shah, contemner, was a tenant of the premises of which applicants Ali Nawaz Chohan and Miss Marie Ali, were the landlords. An application to seek ejectment of the tenant was put in before the Rent Controller, Rawalpindi. It proceeded on default in payment of rent. Tenant contested the application. Default was established and the tenant, vide order, dated 17-5-1981, of Rent Controller, Rawalpindi, was directed to vacate and deliver vacant possession of the disputed premises within 30 days. Immediately, an appeal was preferred against the eviction order in the Court of learned District Judge, Rawalpindi. It proved unsuccessful and was dismissed on 14-9- 1983. Not satisfied with the orders of the Rent Controller as also the Court of appeal, Mushtaq Hussain Shah, tenant filed a petition (W.P.470 of 1983) in constitutional jurisdiction. It was admitted to hearing by Mr. Justice Rustam S. Sidhwa on 6-11-1983 and execution of the eviction order was suspended. On 21-12-1983, statement of Mushtaq Hussain Shah was recorded by this Court, wherein he deposed that if respondents 3 and 4, the landlords of the premises allowed him 18 months to vacate and hand over possession, he would not press constitutional petition. To quote, he stated:-- - "---------..I do not press this writ petition provided the contesting respondents Nos. 3 and 4 allow me 18 months time to vacate the premises and hand over vacant possession thereof on continuous payment of agreed rent i.e. Rs.350 per month before-- the 15 of each month in advance. In case of three consecutive defaults, I will be liable to be dispossessed forthwith. I further undertake to hand over vacant possession of the premises in dispute without course of law to respondent No.4 on or before 30-6-1985.--- (Emphasis supplied).th On the same day, Mr. Ali Nawaz Chohan, accepted this proposed offer and agreed to have the writ petition disposed of on the tern proposed by the tenant. On the aforesaid statement of the parties, learned brother Mr. Irshad Hasan Khan, J. Disposed of the writ petition with the following observations:-- "...The parties have arrived at a compromise. The petition is therefore, disposed of in the light of the said statements was -no order as to costs."
2. A day before the time fixed for vacation of the premises, a suit was filed by Messrs Fair Timber Merchants and 3 others in the Court of Civil Judge, Rawalpindi, against Ali Nawaz Chohan for perpetual, injunction restraining the latter from evicting the plaintiffs on the basis of an ejectment order passed against Mushtaq Hussain Shah. It appears, in the first instance, some stay order was issued, but then vide order, dated 5-9-1985, learned Senior Civil Judge, Rawalpindi dismissed the application for temporary injunction. An appeal again --the aforesaid order (Civil Appeal 24 of 1986) was preferred in the Court of learned District Judge, Rawalpindi. It failed on 24-4-1986 After the dismissal of the appeal, a writ of possession was issued the executing Court. Mushtaq Hussain Shah, is stated to have resisted the execution and preferred objections. These were dismissed on 2- 6-1986 by learned Civil Judge First Class, Rawalpindi. An appeal preferred against the order was also dismissed by learned Additional District Judge, on 5-6-1986.
3. As the tenant had not abided by his undertaking given to Court and had instead involved the landlords in a vortex of litigation-- to frustrate the order of the Court, landlords applied to this Court for taking action against the tenant-judgment-debtor under sections 4 an6 5 of the Contempt of Court Act, 1976. After hearing counsel for the applicants and finding that the act of respondent, Mushtafa. Hussain Shah, prima facie constituted contempt of Court, notice we issued to him for 4- 6-1986, to show cause as to why he should not to found guilty and punished for contempt of Court.
4. Mushtaq used Shah, respondent appeared in person on 4-6-1986 and asked for turf to engage a counsel. Accordingly, contempt petition was adjourned to date in the next week which came up for hearing on 11-6-1986. This date, Mr. Abdul Shakoor Peracha, learned counsel for the respondent requested for time so that the respondent could vacate and hand over possession of the premises to the petitioner/landlords Accordingly, petition was adjourned to 14-6-1986. It was observed meanwhile respondent could vacate and hand over possession. 14-6-1986, Mushtaq Hussain Shah, in his statement recorded on deposed that he was still in possession of the premises and that timber and wood lying on the spot belonged to him.. He further added that he had already vacated the office and because of Eid holidays could not vacate the rest of the premises. Case accordingly, was adjourned to 17-6-1986.
5. Today a formal notice containing necessary requirements as to the facts and law, which constituted contempt, was served upon the respondent and it was also adequately explained to him. Respondent was also asked as to whether he wanted to make a statement in his defence in condonation of the act attributed to him. He offered to make no statement in defence and felt content in stating that except for contrition and remorse, he had no statement to make and to throw himself at the mercy of the Court.
6. Two questions arise for consideration: (1) whether the act of the respondent in failing to abide by his undertaking given to the Court to vacate the premises without formal execution, constituted contempt of Court and, second, is with regard to the quantum of punishment to be awarded. I have heard the counsel for the parties, as also Kh. Muhammad Yousaf Saraf, Advocate, who was asked to assist the Court as amicus curiae. I have also examined the record. The question as to whether a breach of valid undertaking given to the Court constitutes contempt of Court, does not present much difficulty. Contempt of Court has been defined under section 3 of the Contempt of Court Act, 1976. So far as it is relevant for our present purpose, it provides:
3. Contempt of Court.--Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a wilful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect or disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit "Contempt of Court"; Apart from the bare statute law which explicitly states that wilful breach of undertaking given to the Court amounts to contempt of Court, there are several decisions of the superior Courts holding the same view. In Raj Rajeswa ri Jiu and others v. Gati Krishna Chakrabarti and others AIR 1924 Cal. 953, a Division Bench of the Calcutta High Court observed:--- "---------..A breach of an undertaking given to a Court by a litigant pending proceedings, on the faith of which the Court sanctions a particular course of action, or inaction is misconduct amounting to contempt ...."
7. PLD 1976 Lah. 580 a Full Bench of this Court at pages 582, 583, was of the opinion that:--- "------.An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by a Court; once an undertaking is given in the Court by a party or on his behalf by his counsel, he becomes bound to fulfil the same. After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places himself in a perilous situation if later he commits a breach of his undertaking, and such conduct on his part amounts to contempt of Court. In Chaturbhujdas Parmanandas v.
8. Natwarlal Tribhovandas 134 I.C. 1165, it was held that if an undertaking is given and is duly recorded in the order of the Court its breach is punishable as contempt of Court. If a lawyer is acting in his capacity as counsel for a party and gives an undertaking, it is open to the Court to enforce the same even if it was given gratuitously. An undertaking can be enforced even though the lawyer's conduct involves no misconduct. Hamilton, J. Observed in United Mining and Finance Corporation Ltd. v. Becher; (1902) 2 K.B. 296, that the jurisdiction may be invoked not only to secure honesty, in its moral sense, in Court officers, but also to secure the "proper and professional observation of undertakings professionally given'". He added: "The conduct which is required of solicitors is to this extent perhaps raised to a higher standards than the conduct required of ordinary men, in that it is subject to the special control which a Court exercises over officers so that in certain cases they may be called upon summarily to perform their undertakings, even where the contention that they are not liable to perform them is entirely free from any taint of moral misconduct". It is also no justification that such an officer was not bound by the undertaking because he was not served with the order containing the undertaking. In re: Galwazied Tank Manufacturers Association's Agreement; (1965) 2 All. E.R. 1003. Megaw, P. Said "We would, however, emphasise that a company which has given an undertaking to the Court must be treated as having failed lamentably and inexecusably in its elementary duty if it fails to take adequate and continuing steps to ensure, through its responsible officers, that those officers themselves, and anyone to whom they may delegate the holding of matters which fall within the scope of the undertaking, do not forget or misunderstand or overlook the obligations imposed by such undertaking." If a person bound by an undertaking acts in violation of the same, though on the pretext that his action was backed by some legal advice he renders himself liable for action. In re: Agreement of Mileage Conference Group of the Tyre Manufactures' Conference Limited; (1966) 2 All E.R. 849, certain tyre manufacturers had given an undertaking inter alia not to operate a certain scheme which the Restrictive Practices Court had declared contrary to public interest. A new scheme was devised and operated which was held to be a breach of the undertaking. The companies argued, however, that since they had relied upon legal advice that the new scheme would not amount to a breach of their undertaking, they could not be said to have committed contempt because the breach had not been contumacious. The Court held that although reliance on legal advice might be a mitigating factor provided that it was reasonable to rely on such. Advice, nevertheless a contempt will still have been committed. Megaw P., observed "We conclude . . . . . That the breaches of undertaking here were contempt---s of Court, even though it were to be shown that they were things done, reasonably and despite all due care and attention, in the belief, based on legal advice, that they were not breaches. Accordingly, we would hold that breach by a party of an undertaking given to a Court by him or his counsel amounts to contempt of Court and is punishable brevi manu, and the party in contempt must wash the stain that is sticking to him by obeying the order of the Court which it may choose to make. However, before exercising such a were jurisdiction, the Court must ensure that the undertaking was unambiguous and the breach was also clear beyond all reasonable doubt."
9. To the same effect was the view taken in Major Riaz Ahmed v. Hamid Aziz Sheikh and 2 others PLD 1976 Lah. 871. It is not in dispute nor could it be disputed that the respondent Mushtaq Hussain Shah, had undertaken to vacate and halted over possession of the premises within the period of 18 months allowed to him by the Court. It was on the basis of his statement that he was allowed to remain in the premises for 18 months. When a solemn commitment was given by him to the Court, he was obliged to honour it and act in accordance therewith. Failure on his part in the circumstances, can lead to but one conclusion that he violated the undertaking and the order of the Court at his serious risk and squarely brought him within the mischief of law of contempt. It was not disputed by his counsel that breach of undertaking did not amount to contempt. What was pleaded was that as the respondent had expressed remorse and had thrown himself at the mercy of the Court in tendering unqualified apology, contempt is purged and he may be forgiven and let of. Question of contempt as also the punishment, has seriously agitated my mind and I have carefully and anxiously considered the above two afore-enoted questions. As for the contempt. I hold no doubt that the respondent was guilty of it. As for the sentence, it is not doubt true that Court should not be oversensitive as to its contempt but nevertheless the Court cannot look with complacency on breaches of its own orders. Nobody, high or low, should be made to think that he can violate the order of the Court with impunity. Such an allowance shall surely bring the existence of the institution of Courts in serious , jeopardy and may also seriously affect their capacity to .Administer justice for which alone these institutions exist. The object underlying the law of contempt is not to vindicate the honour of al particular Judge, but the real purpose appears to be to vindicate the prestige of the Court. As for the remorse expressed by respondent, suffice it to say that it came, too late when the respondent had already in the result of his own act placed himself in a perilous position. Admittedly, an apology, though an expression of regret, was admission of the guilt. No doubt punishment should be commensurate with the offence and its quantum depends upon the facts and circumstances of each individual case. It may be severe where the contempt is grave and serious but should not be severe where it appears that the impugned act was due to a mistaken view of the offender. However, in the circumstances of the present case, it cannot be urged that respondent in violating an undertaking was suffering under any mistaken advice given to him. I, therefore, find Mushtaq Hussain Shah, respondent, guilty of contempt and convict him under section 3 of the Contempt of Court Act, 1976. In the facts and circumstances of the case as also the conduct o the respondent, I am of the considered opinion that the interests of justice and the law will be sufficiently met if he is sentenced to two months simple imprisonment and 8 fine of Rs.5,000 and in default thereof to undergo simple imprisonment for further one month. I order accordingly. Respondent is present in Court. He is taken into custody. Before concluding, I must express my sense of appreciation for the assistance rendered to the Court by Kh. Muhammad Yousaf Saraf, Advocate, who acted as amicus curiae in the matter.