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Madhya Pradesh High Court · body

2016 DIGILAW 691 (MP)

Sarita Rathore v. Jaya Kunwar

2016-08-12

VIVEK RUSIA

body2016
ORDER : Vivek Rusia, J. The respondent was served prior to 09.12.2015, which is evident from order-sheet dated 09.12.2015. Thereafter, on 16.03.2016 also, he did not appear it seems that despite service of notice, he is not appearing before this Court. 2. Heard. 3. The petitioner/defendant has filed the present petition being aggrieved by order dated 05.08.2015, passed by First Civil Judge, Class-II, Ujjain, by which application under Section 10 of the CPC filed by the petitioner/defendant has been rejected. 4. The respondent being a plaintiff filed a suit for eviction against the defendant/present petitioner. The present petitioner took a defence that there is an agreement of sale between them of the same property and for which he has already instituted a suit No.15-A/2012, which is pending before the Second Civil Judge, Class-II, therefore, the present proceedings are liable to be stayed under Section 10 of the CPC. 5. Earlier, application filed under Section 10 of the CPC was allowed vide order dated 20.12.2013 and the learned civil Judge stayed the proceedings of the present Civil Suit No.41-A/2012. The said order was challenged by way of writ petition by a plaintiff before this Court in W.P.No.715/2014. By order dated 16.05.2014, this Court has set aside the order dated 20.12.2013 and remitted the matter back to trial Court to reconsider the application afresh in light of the judgment of the Supreme Court in case of Joseph Kantharaj and Anr. v. Attharunnisa Begum S, reported in (2010) 2 SCC 619 . 6. After the decision of the High Court, the learned trial Court again considered the application under Section 10 of the CPC and vide order dated 06.08.2015 has rejected the same, hence, the present petition, by the defendants. 7. Shri V.K. Jain, learned counsel for the petitioner/defendant submits that though the petitioner was initially inducted as a tenant in the suit premises, but later on he entered with an agreement of sale with the plaintiff by an agreement dated 25.08.2004. Under the said agreement, the total sale consideration amount was Rs.8.00 lac & out of which Rs.6.00 lac was paid on the date of agreement and the balance amount was agreed to be paid at the time of execution of the sale deed. When the plaintiff did not executed the sale deed then the defendant has no option but to file a suit for specific performance. When the plaintiff did not executed the sale deed then the defendant has no option but to file a suit for specific performance. The said suit was filed on 14.02.2012, which was registered as C.S.No.15/2013. After receiving the notice of the suit, now the plaintiff has filed the suit for eviction which is registered as C.S.No.41-A/2012. 8. Shri Jain, learned counsel for the petitioner submits that in the light of judgment passed in the case of Joseph Kantharaj and Anr. (Supra), the learned trial Court did not considered the application under Section 10 of the CPC and rejected the same on the ground that the subject matter of both the suits are different. 9. I have heard learned counsel for the petitioner. 10. The Hon'ble Supreme Court in para 9 and 10 of its judgment passed in the case of Joseph Kantharaj and Anr. (Supra) has held that while deciding the application under Section 10 of the CPC, the Court has to decide the matter, prima-facie, whether the agreement is genuine and the defence is bona-fide, than should defer the proceedings of the suit filed for eviction for eviction. 11. Para 9 and 10 of the aforesaid Judgment is reproduced as under: "9. There can be no dispute about the general proposition laid down by the High Court in Haji Iqbal Shariff. But the High Court ignored the fact that though the first appellant had admitted that he was earlier the tenant under the previous owner, he had also specifically pleaded that the previous owner had executed an agreement of sale and permitted him to continue in possession in part performance of the said agreement of sale and that therefore he ceased to be a tenant from the date of agreement, namely 11.6.1997, that the relationship of landlord and tenant between him and the previous owner had come to an end, and that as on the date of sale by Anthony Swamy in favour of the respondent, he was in possession in part performance of the agreement of sale and not as a tenant. In fact the first appellant also filed a suit for specific performance in the year 1999 which is pending. In fact the first appellant also filed a suit for specific performance in the year 1999 which is pending. If there was an agreement of sale dated 11.6.1967 and delivery of possession in part performance, as alleged by the first appellant, then he did not become a tenant under the Respondent and the decision in Haji Iqbal Shariff relied on by the High Court would be inapplicable. 10. We may however clarify that a mere assertion by a tenant that he is in possession in part performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings under section 43 of the New Act. But where the respondent in an eviction proceeding under the Rent Act denies the relationship of landlord and tenant contending that he is not in possession as a tenant and produces and relies upon an agreement of sale in his favour which confirms delivery of possession in past performance, and a specific performance suit is pending and there is no lease deed, or payment of rent from the date of such agreement of sale, or no acknowledgment of attornment of tenancy, section 43 of the new Act may apply. But a word of caution. Courts dealing with summary proceedings against tenants under Rent Acts for eviction, should be wary of defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the court is satisfied prima facie that the agreement is genuine and defence is bona fide, it should not defer the proceedings for eviction under the Rent Acts." 12. In the present case, the defendant has entered into an agreement for sale of the suit property and under the said agreement, the total sale consideration amount of Rs.8.00 lac was paid by him and out of which only Rs.6.00 lac was required to paid on the date of execution of the sale deed and when the sale deed did not got executed by the plaintiff, he filed a suit for specific performance. 13. After receiving of the notice only, than the plaintiff has filed the suit, therefore, it is not a case of where after filing the suit for eviction, the defendant created defence by filing the suit of specific performance. 13. After receiving of the notice only, than the plaintiff has filed the suit, therefore, it is not a case of where after filing the suit for eviction, the defendant created defence by filing the suit of specific performance. Whereas, the suit of specific performance was filed prior to filing of the suit for eviction. 14. The defence taken by the defendant appears to be bona-fide and the agreement to sell is also prima facie, appears to be genuine agreement. The trial Court while rejecting the application did not consider this aspect and has only considered that the subject matter of both the suits are different but they are between the same parties. Now the defendant is in possession by way of part performance and no more as tenant and as per law laid down by the Hon'ble Supreme Court, the fate of the subsequent eviction suit is depended on the fate of suit for specific performance. If defendant succeed in his suit and decree is executed he would become the owner of the suit property. In such event, defendant would not be entitled to get decree in his suit for eviction. Hence, to apply this 'test' the proceeding of eviction suit is liable to be stayed. 15. Therefore, the impugned order dated 05.08.2015 is liable to be set aside and the application filed under Section 10 of the CPC is allowed. 16. The proceeding of C.S.No.41A/2012 shall remain stayed. 17. Accordingly, the petition stands allowed.