Smt. Banyan Bai, Shri Ghanahyan ... vs Sohan Lal Behl S/O Late Shri Ganpat ...
1977 Latest Caselaw 18 Del

JUDGMENT

B.C. Misra, J.

1.This second appeal under Section 100 of the Code of Civil Procedure has been filed by the defendant against the appellate decree of Mr. B.B. Gupta, Addl. Senior Sub Judge, dated 21st October, 1972, by which he has dismissed the appeal and affirmed the order and decree of the Sub Judge, dated 15th March, 1972, directing the appellant here into deliver possession of the plot of land in dispute after demolishing the superstructure erected by him in addition to payment of mesne profits and costs. The matter is concluded by findings of fact and does not call for interference.

2. Mr. Daya Kishan, Advocate, however, contends that he wishes to raise only the point that the plot of land in dispute is situated in slum area and so under Section 19 of the Slum Areas (Improvement and Clearance) Act, it was not open to the respondent plaintiffs to institute the suit without first obtaining permission of the Competent Authority (Slums). This is a point which was never taken in the written statement, now raised in the trial courts nor was it raised in the grounds of appeal before the lower appellate court. Mr. Daya Kishan frankly concedes that it was not raised in the grounds of appeal in this court as well. He, however, sought to raise it before this court by an oral application made on 17th December, 1973. The court did not allow him to raise the point, but allowed the parties to file the necessary documents. In this way, the point had never been raised so far and Mr. Daya Kishan requests me for permission to raise the point. I am, however, unable to accept the request at this stage of the case. The question involved is a disputed question of fact as to whither the particular area falls or does not fall within the slum area and as such it ought to have been raised in the trial court. It, was certainly open to the appellant-defendant, to waive the plea and if he has not raised it, he cannot be allowed to urge it at this stage. The request of Mr. Daya Kishan is, therefore, rejected.

3. As a result, the appeal is dismissed and the decree of the lower appellate court is affirmed. The parties are left to bear their respective costs.

4. The appellant wants some time to remove the superstructure and deliver vacant possession of the plot of land to the respondents. He is allowed to do so by 4th April, 1977. Thereafter, the respondents will be entitled to execute the decree according to law.