1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH AT NAGPUR WRIT PETITION NO.2245/2011 DILIP MASAL ..VS.. ABHIJEET RAMEKAR - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Amol Mardikar, adv for petitioner CORAM : SMT. VASANTI A. NAIK, J. D A T E : MAY 5, 2011. Heard Shri Mardikar, the learned counsel for the petitioner. By this petition, the petitioner impugns the order passed by the trial court on 18.2.2011, rejecting an application filed by the petitioner under section 10 of the Code of Civil Procedure for staying the suit filed by the respondent for eviction and possession and allowing an application filed by the respondent under Order XV-A of the Code of Civil Procedure directing the petitioner to pay the arrears of rent to the respondent. It is not in dispute that the petitioner was a tenant in the suit property. The respondent had instituted a suit against the petitioner for eviction and possession and for recovery of arrears of rent. In the suit filed by the respondent for eviction, the petitioner admitted that he was a tenant in the suit property, but claimed that there was no relationship of landlord and tenant between the respondent and the petitioner as the owner of the suit property had executed an agreement of sale in favour of the petitioner on 30.12.1998. It was stated by the petitioner in the written statement that a suit for specific performance of contract was filed by the petitioner against the owner in the year 2002 and the same was pending. During the pendency of the small causes suit for eviction and possession, the respondent filed an application under Order XV-A of the 2 Code of Civil Procedure for a direction to the petitioner to deposit the arrears of rent. An application was filed by the petitioner under section 10 of the Code of Civil Procedure for staying the small cause suit till the special civil suit no. 16/2002 filed by the petitioner for specific performance of contract was decreed. The trial court, however, allowed the application filed by the respondent and dismissed the application filed by the petitioner. Hence this petition. On hearing the learned counsel for the petitioner and on perusal of the impugned order, along with the pleadings, it appears that the trial court was justified in allowing the application filed by the respondent under order XV-A of the Code of Civil Procedure. The suit of the respondent was based on a notice dated 12.1.1998 asking the petitioner to pay the arrears of rent. The trial court rightly held that the submission of the petitioner that he was not in possession of the property as a tenant was not liable to be accepted at that stage, as the petitioner had clearly admitted in the written statement that he was a tenant in the suit property till he entered into an agreement of sale in the year 1998. The trial court observed and rightly so that there was no recital in the agreement of sale that the possession of the property was handed over to the petitioner in pursuance of the agreement of sale executed between the parties. In such circumstances, since the petitioner was enjoying the property, since the year 2000 without paying a single pai, the trial court directed the petitioner to deposit the arrears of rent under order XV-A of the Code of Civil Procedure. The judgment reported in 1998(1) Mh.L.J.Page 639 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. The trial court was justified in rejecting the application filed by the petitioner for staying the small causes suit for eviction under section 10 of the Code of Civil Procedure. The trial court rightly rejected the application filed by the petitioner as the issues involved in the suit for 3 specific performance of contract and the issues involved in the present suit for eviction were not substantially the same. Since the ingredients of section 10 of the Code of Civil Procedure were not satisfied in the facts of this case, the trial court was justified in rejecting the application filed by the petitioner for staying the the small causes suit. The order passed by the trial court is just and proper and calls for no interference in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE SMP