ash 1 99fa-1025.85 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1025 OF 1985 Mohammed Raza Amin. .. Appellant. Vs Mangilal Nenmalji Kothari & Anr. .. Respondents -- Shri Pratap Patil i/by Shri K.P. Tiwari for the Appellant. Shri V.B. Pandey i/by Shri B.P. Pandey for Respondent No.1. -- CORAM ; A.S. OKA, J DATED : 24TH MARCH, 2011 ORAL JUDGMENT: . Learned counsel appearing for Respondent No.1 (Original Plaintiff ) on instructions of the original Plaintiff states that on the basis of the affidavit filed by the Appellant in this Court on 5th March, 2011, the 1st Respondent became aware that by a notification dated 20th July, 1978 the property in question was declared as a slum under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment ) Act, 1971 ( hereinafter referred to as “the said Act of 1971”). Learned counsel appearing for the Appellant submits that the 1st Respondent was aware of the said fact. 2. Learned counsel appearing for the 1st Respondent on instructions states that as the 1st Respondent became aware in March, 2011 ash 2 99fa-1025.85 about the declaration of the slum published prior to the institution of the suit, by setting aside the impugned decree, the 1st Respondent may be permitted to withdraw the suit with liberty to file a fresh suit after obtaining permission of the Competent Authority under Section 22(1) of the said Act of 1971. 3. The declaration made under Section 4(1) of the said Act came on record for the first time along with Civil Application No.3707 of 2006. The said Civil Application has not been allowed as yet. Hence, the request made by the learned counsel appearing for the 1st Respondent deserves to be granted. 4. Hence, I pass following order. ORDER: (a) The impugned judgment and decree dated 25th October, 1985 is quashed and set aside and S.C. Suit No.3133 of 1983 is restored. (b) S.C. Suit No.3133 of 1983 is likely to fail on account of formal defect i.e. for want of previous permission under Section 22(1) of the said Act of 1971. Hence, as per the prayer made by the 1st Respondent, he is permitted to withdraw the said suit with liberty to institute a fresh suit on the same cause of action after obtaining permission ash 3 99fa-1025.85 from the Competent Authority under Section 22(1) of the said Act of 1971. (c) On expiry of the period of four months from today, the amount deposited by the Appellant in this Court along with interest accrued thereon shall be permitted to be withdrawn by the Appellant. (d) The Appeal is partly allowed on above terms with no orders as to costs. (e) All contentions of the parties on merits are kept open. (f) Civil Application No.3707 of 2006 stands disposed of . ( A.S. OKA, J )