SHANTIBAI Vs. ABDUL GAFAR

JUDGEMENT

(1.) This Miscellaneous Appeal has been filed against order of remand under Order 43 Rule 1 of the C.P.C., the appellant being aggrieved by order dated 11.11.2011 passed by the 21 st Additional District Judge, Indore in Regular Appeal No.12/2011 allowing the appeal and setting aside the impugned order.

(2.) Brief facts necessary for elucidation are that the respondent Abdul Gafar had filed a suit in the Trial Court for eviction of suit accommodation situated at 24/2 Daulatganj, Bohre Ki Chal, Indore, and was a shed (jhopda) of the area 8 x 18 ft. It did not contain any sanitation facility nor any facility of water connection and was being utilised on rent of Rs.500/- per month. The respondent Abdul Gafar claimed that he had obtained the disputed accommodation from the original owner Muman Ali (Abdul Karim) and after purchasing it had given to the appellant Smt. Shantibai on rent. Apparently the accommodation was temporary in nature and a suit was filed for eviction against her. Shantibai the appellant denied all the allegations and filed an application under Order 7 Rule 11 of the CPC and stated that this accommodation was situated in an area declared to be a slum area under the Gandi Basti Nagar Palika, Indore vide order bearing No.99 dated 22.09.1999 and the resolution of the Corporation No.415 dated 10.01.2001 declaring the land to be Gandi Basti and the land was so declared under the Act of 1976. The application stated that under the provisions of the said Act, there was a bar for the institution of such proceedings for eviction of tenant in an area declared to be slum area without proper consent from the competent authority. The Trial Court accepted the objections so filed and dismissed the suit of the respondent owner. Being aggrieved respondent filed a miscellaneous appeal under Order 43 Rule 1 of the CPC. The present appellant tenant filed objections before the appellate Court that the miscellaneous appeal was not maintainable since instead a regular appeal ought to have been filed. The objections were however dismissed and the miscellaneous appeal was allowed and the matter was remanded back to the Trial Court. Against this order of remand a Miscellaneous Appeal bearing No.3270/2011 was filed in the High Court and the respondent was directed to file a regular appeal before the appellate Court. The respondent in consequence, filed the regular appeal and also paid the proper court fees. The appellate Court however again passed the same order by accepting the appeal and remanding the matter to the Trial Court and being aggrieved the appellant tenant has filed the present appeal.

(3.) Counsel for the appellant has vehemently urged the fact that the question of law that goes to the root of the matter is whether a suit for eviction of accommodation, situated in an area declared to be a slum area under the Gandi Basti Adhiniyam 1976 can be filed without obtaining proper consent of the competent authority. Counsel urged that the appellate Court had however wrongly relied on the decision of this Court in the matter of Kanta Prasad V. Suvalal, 2002 2 MPWN 108 whereby this Court had held that the permission to file suit for possession or execution under Section 20 was not needed when the suit was based on relationship of landlord and tenant. And Counsel stated that the Trial Court had failed to consider that in the said case the proper ratio that was laid down was that there was no suit filed for execution. No execution was pending despite which the appellant tenant had filed an application under Section 47 of the CPC taking the same stand that no suit was competent without obtaining prior sanction from the competent authority and that the decree passed by the Trial Court be declared to be nullity or incapable execution. The plaintiff had opposed this application and the trial Court had held that the decree passed by the trial Court earlier could not be set aside only on the ground of noncompliance of this provision of the Act and Counsel stated that the facts of the case were entirely different. A decree had been obtained by the owner and this High Court had therefore held that provision under Section 20 would not apply to an application under Section 47 of the CPC saying that a compromise had been arrived at between the parties and the decree passed by the Trial Court in the said decision is a nullity or incapable of execution. Whereas Counsel vehemently urged that in the present case; the suit itself at the very initial stage was objected by filing an application under Order 7 Rule 11 of the CPC which is correctly allowed by the Trial Court. It was the appellate Court which has misinterpreted the provisions since no execution as such was pending against the appellant tenant.