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TMI Blog2010 (1) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not dispute that he was a tenant under the respondents/plaintiffs at a rate of ₹ 4,000/- per month. He applied under Section 10 of the CPC contending that he had prior to the institution of the suit for ejectment against him instituted a suit in this Court being CS(OS) No.1018/2004 against the respondents/plaintiffs for specific performance of agreement to sell of immovable property. It was his plea that he was defending the suit for ejectment and mesne profit filed by the respondents/plaintiffs also on the ground that the respondent/plaintiffs had agreed to sell the premises to him and thus common questions of law and fact arise in the subsequent suit for ejectment and mesne profits and thus the proceedings in the suit for ejectment be stayed till the adjudication of the suit for specific performance of agreement to sell. 4. This Court while issuing notice of this petition, vide ex parte order dated 7 th September, 2007 stayed the proceedings in the suit for ejectment before the trial court and the said order continues to be in force till date. 5. The Additional District Judge dismissed the application holding that the matter in issue in the two suits is differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. A perusal of the plaint in the suit for specific performance filed by the petitioner/defendant and copy whereof has been filed before this Court shows that the case of the petitioner/defendant therein is:- (a) that the respondents 1 and 2 herein only had on 23rd February, 2004 entered into the oral agreement to sell with him for the premises in his tenancy for a total consideration of ₹ 80,00,000/-; (b) at the time of the aforesaid oral agreement to sell, a sum of ₹ 2,00,000/- is stated to have been paid in cash to the respondent no.1 only and against receipt executed by the respondent No.1 but also stated to be signed by the respondent No.2 in token of confirmation of the same; (c) a perusal of the aforesaid receipt shows that the same is titled Token Receipt and the sum of ₹ 2,00,000/- was received as token money; it is also mentioned in the receipt that the detailed terms and conditions and price shall be discussed and formal agreement to sell shall be made within two months. The receipt is typed. The total consideration of ₹ 80,00,000/- is not in type but in hand; (d) the petitioner/defendant claims to have paid further amount totalin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess plea of the petitioner/defendant in this regard is also of an oral agreement to that effect on 8th July, 2004. Even if the receipts relied upon by the petitioner/defendant are to be termed as an agreement in writing, the same as per the petitioner/defendant also are executed by the respondents 1 2 only. There is no agreement in writing with the respondent no.3. The property admittedly belongs to all three of them and the petitioner is claiming the agreement with all three of them. There is no authority in writing shown of the respondent no.3 in favour of respondent no.1 and/or respondent no.2. The agreement to sell with the respondent no.3 as per the plea of the petitioner/defendant is thus oral only. 13. Even the writing claimed by the petitioner/defendant does not provide the possession of the premises having been delivered to the petitioner/defendant in pursuance to the agreement to sell. From the pleas of the petitioner/defendant himself, notwithstanding the oral agreement to sell dated 23rd February, 2004, he was liable to pay rent thereof and also continued to pay the rent. It is his case that only on 8th July, 2004, it was orally agreed by the respondent No.2 with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment. If that be so, there is no common question involved in the previously instituted suit for specific performance and the subsequently instituted suit for ejectment. 17. I also find that beside the judgments relied by the counsel for the respondents/plaintiffs, another Single Judge of the Andhra Pradesh High Court in Gollu Bhavani Sankar Vs. Bhogavalli Rajeswara Rao and the Madhya Pradesh High Court in Prakash Chand Soni Vs. Anita Jain have also refused to stay the eviction proceedings due to pendency of suits for specific performance of agreement to sell. 18. The Division Bench of this Court in Jai Singh Rana Vs. Mohinder Mohan Goel 1994 IV AD Delhi 582 was concerned with an interim injunction claimed by the plaintiff in a suit for specific performance against his eviction as a tenant from the premises subject matter of the agreement. The Division Bench observed that it might appear to be just that a tenant should not be allowed to be evicted pending a suit for specific performance and it may be said that this would cause serious hard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement of renewal of lease and the only order which was granted was of restraining forcible dispossession. 20. Though the aforesaid two judgments of the Division Bench of this Court are on injunction application in suits for specific performance, but the principles laid down therein would apply here. The jurisdiction, if any, to stay eviction pending a suit for specific performance is of the court where the suit for specific performance is pending and the court where the suit for ejectment / eviction is pending ought not to restrain its hands merely because the suit for specific performance has been filed. 21. The contention of the senior counsel for the petitioner of consolidation though attractive is again loaded against the respondents/plaintiffs. In view of the lesser pendency of cases in the courts where, the suit for ejectment filed by the respondents is pending, it can be disposed of within a few months. On the contrary, if it were to be transferred to this Court to be decided along with suit for specific performance and which requires voluminous evidence, the disposal thereof would be undoubtedly delayed. The petitioner/defendant would thereby achieve indirectly wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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