Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 251

SUPREME COURT OF INDIA
ASHOK BHUSHAN, R. SUBHASH REDDY, JJ.
SUBODH KUMAR - APPELLANT
VERSUS
SHAMIM AHMED - RESPONDENT
CIVIL APPEAL NOS. 802-803 OF 2021 (ARISING OUT OF SLP(C) NOS. 18118-18119 OF 2019)
Decided on : 03-03-2021

Advocates Appeared:
For the Appellant :Mr. Gagan Sanghi, Advocate, Mr. Anupam Mishra, Advocate
For the Respondent:Dr. Sumant Bharadwaj, Advocate, Mr. Vedant Bharadwaj, Advocate, Ms. Mridula Ray Bharadwaj, Advocate

IMPORTANT POINTS
(1) Requirement of deposit in Court entire amount can be waived only when Court on previous application directs tenant to give such security for performance of decree or compliance with judgment.
(2) Law is applied on facts and when essential facts are missed, misapplication of law is bound to happen.

Headnote:
(A) Civil Procedure Code, 1908 – Order VI Rule 1 – Foundational facts – Facts of any case are foundation on which dispute between parties arises – Arguments are built by Counsel for parties in reference to foundational facts for applying legal principles to decide the dispute – Clear grasp of foundational facts are essential – Law is applied on facts and when essential facts are missed, misapplication of law is bound to happen. (Para 4)
(B) Civil Procedure Code, 1908 – Order 9 Rule 13 – Provincial Small Cause Courts Act, 1887 – Section 17, Proviso – Limitation Act, 1963 – Section 5 – Recall of ex-parte decree – Requirement of deposit in Court entire amount can be waived only when Court on previous application directs tenant to give such security for performance of decree or compliance with judgment – Compliance of proviso to Section 17 is mandatory for making application under Order 9 Rule 13 – When condition precedent for presenting application under Order 9 Rule 13 was not fulfilled, application under Order 9 Rule 13 filed by tenant-respondent did not deserve any consideration and had rightly been rejected – Requirement under proviso to Section 17 can neither be said to be hypertechnical nor pedantic but same was requirement of law and condition precedent for maintainability of application under Order 9 Rule 13 – There was no valid ground on which High Court could have interfered with order of trial court rejecting application under Order 9 Rule 13 filed by tenant to recall ex-parte decree – High Court committed error in interfering with order of trial Court rejecting such application which was also confirmed by District Judge – Appeals allowed with costs of Rs.25,000/-. (Paras 22, 23, 27, 47, 50, 52, 54 and 58)
Facts of the case:
Present appeal has been filed against the judgment of High Court of Uttarakhand dated 13.12.2018 allowing the Writ Petition (M.S.) No.418 of 2008 filed by respondent No.1 as well as order dated 24.05.2019 rejecting the Review Petition filed by appellant to review the judgment dated 13.12.2018. High Court in impugned judgment although has noted few facts but certain relevant facts have been missed by the High Court which have bearing on the issues which had arisen before the High Court.
Findings of Court:
High Court is not right in its view that trial court and Revisional Court has taken hypertechnical and pedantic approach while considering the application under Order 9 Rule 13 of CPC and Section 5 of the Limitation Act.
Result : Appeals allowed.

JUDGMENT :

Ashok Bhushan, J.

Leave granted

2. This appeal has been filed against the judgment of the High Court of Uttarakhand dated 13.12.2018 allowing the Writ Petition (M.S.) No. 418 of 2008 filed by respondent No.1 as well as the order dated 24.05.2019 rejecting the Review Petition filed by the appellant to review the judgment dated 13.12.2018.

3. The facts of the case giving rise to this appeal, which are relevant for deciding the issues raised, need to be carefully noticed. The High Court in the impugned judgment although has noted few facts but certain relevant facts have been missed by the High Court which have bearing on the issues which had arisen before the High Court.

4. The facts of any case are the foundation on which the dispute between the parties arises. The arguments are built by the counsel for the parties in reference to the foundational facts for applying the legal principles to decide the dispute. A clear grasp of foundational facts are essential. The law is applied on facts and when essential facts are missed, mis-application of law is bound to happen. We may recall prophetic words of Mr. Justice Cardozo when he said: -

"...More and more we lawyers are awakening to a perception of the truth what divides and distracts us in the solution of a legal problem is not so much uncertainty about the law as uncertainty about the facts - the facts which generate the law. Let the facts be known as they are, and the law will sprout from the seed and turn its branches toward the light."

5. The appellant herein shall be referred as 'landlord' whereas the respondent No.1 Shamim Ahmed as 'tenant'. Dispute relates to a shop being shop No. 39(29) situated in Compound No.3, Civil Lines, Roorkee, District Haridwar. The respondent was inducted as tenant at Rs.150/- per month by predecessor-in-title of the landlord. The landlord purchased the shop in question by sale deed on 30.01.1991. The S.S.C case No.4 of 1994 was filed by the landlord on 18.03.1994 claiming possession, rent and mesne profit. The landlord's case was that the notice was given on 24.12.1993 demanding the amount of rent, due rent, profit etc. Thereafter the S.C.C. Case No.4 of 1994 was filed in the Court of Additional Civil Judge, Senior Division, Roorkee. On 14.07.1994, the tenant was served summons. He prayed time to file a written Statement till 24.08.1994. The tenant filed an application under Section 10 CPC to stay the suit as well as the application under Order VII Rule 11 CPC. Both applications were rejected and the Court allowed fifteen days time to file a written statement and fixed 16.10.1995 for hearing. On 16.10.1995, the tenant again took time but did not file a written statement. Several other opportunities were given to the tenant to file a written statement in which he failed. On 24.02.1997, Court passed an order to proceed ex-parte. On 18.03.1997, the plaintiff-landlord was permitted to give ex-parte evidence. The application 44Ga was filed by the tenant to recall the orders dated 24.02.1997 and 18.03.1997. On 16.05.1997, the application 44Ga was rejected observing that the defendant wants to delay the case regularly because he is a tenant and getting the benefit of property. The application was found to be mala fide.

6. On 23.05.1997, the tenant filed an application under Section 30(2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 19 72, to deposit the rent. The application was allowed on 23.05.1997 by the Court observing that the plaintiff may deposit the amount on his own risk. On 07.07.1997, the amount of rent from 01.03.1988 to 30.06.1997 amounting to Rs.16,800/-was deposited by the tenant under Section 30(2).

7. Against the Order dated 16.05.1997, a revision was filed by the tenant before the District Judge, which too was rejected on 22.08.1997. On 18.10.1997, the tenant further deposited Rs.750/-as rent from 30.06.1997 to 30.11.1997.

8. The S.C.C. case No.4 of 1994 filed by the landlord was allowed by ex-parte judg