HARI S YADAV Vs. HIRALAL PRABHU YADAV

JUDGEMENT

(1.) RULE. Respondent waives service. Heard forthwith. Respondent No. 1 original plaintiff had filed a suit against petitioner and respondent No. 2 before the Small Causes Court at Mumbai which was numbered as R. A. E. Suit No. 4802 of 1978. The suit was for eviction of the petitioner from the suit premises on the ground that the petitioner a monthly tenant was in arrears of rent and inspite of statutory notice had failed to pay the amount. Some other grounds was also set out inclinding that the defendant No. 1 in the suit, respondent No. 2 herein, had unlawfully inducted petitioner in the suit premises. The petitioner herein filed his written statement on 13-9-1982 contending that he was protected under the provisions of the Bombay Rent Act. It was further pointed out that the area where the structure was situated was declared as slum under Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971. No permission of the authority has been taken and considering section 22 of the Act, suit was not maintainable. The trial Court framed issue as to whether the suit property has been declared as slum and as such whether the suit was maintainable. The trial Court held in the affirmative. The trial Court held that the plaint was lodged on 15-9-1978 after declaration of slum which notification was published in the Government Gazette on 16-2-1978. In that light of the matter, suit was dismissed. In so far as arrears of rent is concerned, the Court held that the defendant therein were not in arrears of rent for more than six months. The Court answered in the affirmative the issue that the premises have been unlawfully sublet to defendant No. 2. However, in view of the finding on Issue No. 1 dismissed the suit.

(2.) RESPONDENT No. 1 aggrieved by the said order preferred an appeal before the Appellate Bench of the Small Causes Court, Mumbai. The Appellate Bench framed points for determination including whether the suit was maintainable as also the ground of sub-letting. In so far as issue of the area being declared as slum is concerned, the Appellate Court held based on copy of the judgment of the Maharashtra Slum Area Tribunal, Bombay in Appeal No. 46/255 of 1986 dated 29-11-1998. That the notification of 16-2-1978 had been set aside by its order dated 26-4-1979. The Court further noted that the area was again re-declared as slum by notification of 24-2-1963. That declaration was once again set aside on 29-11-1988. Relying on the judgment of the learned Single Judge of this Court, which will be adverted to latter on, the Appellate Bench held that as the declaration was set aside, there was no slum and as such there was no necessity to obtain necessary permission. In so far as issue of sub-letting is concerned, the Appellate Bench concurred with the findings of the trial Court and in the light of that decreed the suit and directed eviction of the petitioner. It is that order which is sought to be impugned before this Court.

(3.) AT the hearing on behalf of the petitioners, it is contended that on the date the suit was filed, which is 13-9-1978, the area was declared as slum. The area had been declared as a slum by Government Notification on 16-2-1978. The mere fact that subsequently that notification was set aside, during the pendency of the suit would be of no consequence. The trial Court has correctly appreciated that contention. The Appellate Court in holding otherwise has acted without jurisdiction. The order suffers from error apparent on the face of record. Reliance which has been placed on the judgment of the learned Single Judge of this Court in the case of (Smt. Hazira Wife of Mohd. Gaus v. Saphaya) 1988 (1) All India Rent Control Journal 57. On the other hand on behalf of the respondent, their learned Counsel contends that once declaration is set aside it goes to the root of the matter and even if the suit had been filed when that declaration was in force, the moment the declaration was set aside the suit would be properly constituted. Reliance for that purpose have been sought in the case of (Abdul v. Tereza) 1986 (1) All India Rent Control Journal 154.