Vikramajit Sen, J.

1. This petition under Sections 11 and 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India has been filed with the purpose of bringing to the attention of the Court certain acts of the respondent which allegedly tantamount to Contempt of Court.

2. The facts are that a Suit No. 802/1993 was filed seeking an injunction for restraining late Shri Ramesh Datt Salwan from interfering in any manner with the possession of Shri Kasturi Lal and M/s. Romica Enterprises (the plaintiffs in the suit) and from restraining him from defacing, damaging or carrying out erections in premises commonly known as G-9, Marina Arcade, Connaught Place, New Delhi. In this suit a decree was passed pursuant to an application filed by the parties under Order 23, Rule 3 of the Code of Civil Procedure being I.A. No. 4661/1993. The Memorandum of Understanding dated 22.4.1993 formed the basis of the compromise. This application is a short one and is reproduced below:

Application on behalf of parties under Order 23, Rule 3 read with Section 151, Cr.P.C.

RESPECTFULLY SHOWETH:

1. That the above noted suit is pending adjudication for grant of permanent injunction by this Honble Court.

2. That the parties to the suit have settled all their disputes and have entered into a memorandum of understanding a copy whereof is annexed hereto and marked as Annexure P-1.

3. That the terms of Annexure P-1 may kindly be read as part of this application and same are not repeated herein for sake of brevity.

4. That in view of the settlement between the parties, the present suit may kindly, be disposed of, making the said Memorandum of Understanding a part thereof and parties be left to bear their own costs.

3. Mr. P.N. Lekhi, learned senior Counsel appearing on behalf of petitioners has relied on Clause 4 of the Memorandum of Understanding which is also reproduced below:

4. It is agreed that this arrangement/licence is for a period of 5 years and is subject to the terms and conditions of this agreement. It is agreed that the period may be extended by the parties on such terms and conditions as may be mutually agreed upon between the parties after the expiry of the period of 5 years taken from 6th of February, 1993.

PROVIDED HOWEVER, in the event of licence terminating the licence or not renewing the licence after the expiry of five years, as aforesaid, the licensor undertakes to pay a sum of Rs. 6 lakhs only towards the cost of decoration and other work done by the licensee in the premises without any demur and contestation, provided the work done and system are in working order.

4. Mr. Lekhi, learned Senior Counsel appearing on behalf of petitioners, contends that inasmuch as the respondents herein have failed to vacate the premises after five years they have committed Contempt of Court.

5. Section 2 of the Contempt of Courts Act reads as follows:

2. Definitions.Inthis Act, unless the context otherwise requires

(a) Contempt of Court means civil contempt or criminal contempt;

(b) civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court;

(c) xx xx xx

6. Mr. Lekhi, learned Senior Counsel for the petitioners contends that since a decree has been passed in terms of the compromise arrived at, failure to comply with the decree amounts to wilful disobedience as is contemplated in Section 2 of the Contempt of Courts Act. He further contends that Order 21, Rule 2 of the CPC stipulates that payments or adjustments, which have not been certified or recorded by the decree-holder shall not be recognised by any Court executing the decree. This was in the context of the reply filed in answer to the contempt petition wherein it was alleged that late Shri Ramesh Datt Salwan had in early 1997 entered into an arrangement whereby, inter alia, the liability (rent/licence fee) of the alleged contemner was increased from Rs. 30,000 to Rs. 35,000 which would be further increased by Rs. 7,500 every five years. He further vehemently submitted that the defence to the contempt petition as contained in the reply of the alleged contemners was so palpably false that these persons deserve to be punished in contempt jurisdiction. He relied on two judgments of the Apex Court reported as Mohd. Aslam @ Bhure, Acchan Rizviv. Union of India, State of Uttar Pradesh & Ors.,(1994) 6 SCC 442 [LQ/SC/1994/1008] and Delhi Development Authorityv. Skipper Construction Co. (P) Ltd. & Anr., (1996) 4 SCC 622 [LQ/SC/1996/940] =65 (1996) DLT 963 (SC).

7. In Mohd. Aslams case (supra) no doubt the Honble Supreme Court had sentenced the Chief Minister U.P for a taken imprisonment of one day but that was for the reasons that an undertaking had been given to the Court, which undertaking had been violated. The Court deals with the question as follows:

The Chief Minister having given a solemn assurance to the National Integration Council (NIC)and permitted the terms of that assurance to be incorporated as his own undertaking to this Court and allowed an order to be passed in those terms cannot absolve himself of the responsibility unless he places before the Court sufficient material which would justify that he had taken all reasonable steps and precautions to prevent the occurrence.

8. This case is, therefore, not an authority for the proposition presently being stressed by Mr. Lekhi. He further relied on Section 13 of the Contempt of Courts Act and emphasised that if the contempt (referring to the act complained about) is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice, then a Court ought to impose sentence. He submits, by extrapolation, that since the defence/reply filed by the respondents is replete with falsehood, punishment must be imposed on them. I am unable to agree. Punishment for conduct such as complained about by Mr. Lekhi i.e. falsehood and subterfuges, may invite action under Section 340 of the Code of Criminal Procedure, but Contempt of Court they would not constitute. In the Skipper Construction Companys case (supra) the Honble Supreme Court on a consideration observed in the context of Order XXXIX, Rule 2A of the CPC that it was the duty of the Court to set the wrong right where acts were done in violation of the injunction or stay granted by it. However, it was not shown which order of the Court the respondents have allegedly transgressed.

9. Mr. L.R. Gupta, learned Senior Counsel appearing for the alleged contemners has submitted that a person is liable to punishment under the Contempt of Courts Act only if an undertaking is given to the Court, which undertaking has been duly recorded as such. He has further argued that since the suit for injunction was decreed pursuant to a compromise arrived at between parties, the decree consequently passed on the joint prayers of all the parties to that suit, could only be executed. It is his submission that failure to fulfil the terms of the decree cannot invite contempt proceedings against the judgment debtor. Although he relied on Pulavarthi Venkata Subba Rao & Ors. v. Valluri Jagannadha Rao (deceased), AIR 1967 SC 591 [LQ/SC/1963/62] , in order to elucidate the nature of a consent decree, I do not find this relevant because of the view taken by me. Babu Ram Gupta v. Sudhir Bhasin & Anr.,AIR 1979 SC 1528 [LQ/SC/1979/238] which was also relied upon by Mr. L.R. Gupta, learned Senior Counsel for the respondent; in my view, is a complete answer to the present controversy. In that case a Receiver was appointed by consent of parties, but there was no express direction that possession of the suit property should be handed over to him. A Division Bench of this Court read into the consent terms an implied undertaking of the appellant, Babu Ram, to hand over possession to the Receiver, and since he failed to do so, came to conclusion that a case of Contempt of Court had been made out. The Apex Court reversed this finding in the following words:

Coming to the first point, the contention of Mr. Asthana was that there was no undertaking given by the appellant to the Court at all. Our attention has not been drawn by Counsel for the respondent to any application or affidavit filed by the appellant which contains an undertaking given by the appellant to hand over possession to the Receiver appointed by the High Court by virtue of the impugned order. It is manifest that any person appearing before the Court can given an undertaking in two ways: (1) that he files an application or an affidavit clearly setting out the undertaking given by him to Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the Court in its order. If any of these conditions are satisfied then a willful breach of the undertaking would doubtless amount to an offence under the Act. Although the High Court observed that the consent order extracted above had been passed on the basis of various undertakings given by the contemner, we are unable to find any material on record which contains such undertakings. It seems to us that the High Court has construed the consent order itself and the directions contained therein as an implied undertaking given by the appellant. Here the High Court has undoubtedly committed an error of law. There is a clear cut distinction between a compromise arrived at between the parties or a consent order passed by the Court at the instance of the parties and a clear and categorical undertaking given by any of the parties. In the former, if there is violation of the compromise or the order no question of contempt of Court arises, but the party has a right to enforce the order or the compromise by their executing the order or getting an injunction from the Court.

In this judgment two earlier decisions of the Supreme Court were also taken into consideration. It was further held as follows:

..Indeed, if we were to hold that non-compliance of a compromise decree or consent order amounts to Contempt of Court, the provisions of the Code of Civil Procedure relating to execution of decrees may not be resorted to at all. In fact, the reason why a breach of clear undertaking given to the Court amounts to Contempt of Court is that the contemner by making a false representation to the Court obtains a benefit for himself and if he fails to honour the undertaking, he plays a serious fraud on the Court itself and thereby obstructs the course of justice and brings into disrepute the judicial institution. The same cannot, however, be said of a consent order or a compromise decree where the fraud, if any, is practised by the person concerned not on the Court but on one of the parties. Thus, the offence committed by the person concerned is qua the party not qua the Court, and, therefore, the very foundation for proceeding for Contempt of Court is completely absent in such cases. In these circumstances, we are satisfied that unless there is an express undertaking given in writing before the Court by the contemner or incorporated by the Court in its order, there can be no question of wilful disobedience of such an undertaking. In the instant case, we have already held that there is neither any written undertaking filed by the appellant nor was any such undertaking impliedly or expressly incorporated in the order impugned. Thus, there being no undertaking at all the question of breach of such an undertaking does not arise.

For these reasons, therefore, we are of the opinion that however improper or reprehensible the conduct of the appellant may be yet the act of the appellant in not complying with the terms of the consent order does not amount to an offence under Section 2(b) of the Act and his conviction and order of detention in civil prison for four months is wholly unwarranted by law. The appeal is accordingly allowed. The judgment of the High Court is set aside and the order passed by the High Court directing the appellant to be detained in civil prison for four months is hereby quashed and the appellant is acquitted of the offence under Section 2(b) of the Act.

10. Having carefully considered the allegations made in the contempt petition I am of the opinion that the action of the respondents do not fall within the ambit of Contempt of Courts Act. No undertaking was given to or accepted by the Court. No doubt the defence put forward by respondents, specially with regard to an alleged arrangement arrived at between them and late Ramesh Datt Salwan appears to be palpably false, but that would not render respondent No. 1 liable for punishment under the Contempt of Courts Act. The petition is, therefore, dismissed, but with no order as to costs.