Civil Revision No.5456 of 2002 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No.5456 of 2002 Date of decision: 31.7. 2009 Rafeal O Kanno ......petitioner Versus Mahfuz-ur-Rehman .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Amrit Lal Jain, Advocate. for the petitioner. None for the respondent. **** SABINA, J. Plaintiff-Mahfuz-ur-Rehman filed a suit for possession by way of ejectment and for recovery of arrears of rent/mesne profits. Notice of the suit was issued to the defendant. During the pendency of the suit, an application under Order 15 Rule 5 read with Section 151 of the Code of Civil Procedure was filed by the plaintiff. It was averred that the defendant had failed to deposit the entire amount of compensation for use and occupation along with interest and hence, his defence was liable to be struck off. Vide the impugned order dated 19.7.2002, the said application was allowed by the Civil Judge (Jr.Divn.) Gurgaon. Hence, the present Civil Revision No.5456 of 2002 2 revision petition by the defendant. Learned counsel for the petitioner has submitted that now there was no relationship of landlord and tenant between the parties. The plaintiff had executed an agreement to sell in favour of the defendant and had received the entire sale consideration and hence, the defendant was not in possession of the property in question as a tenant. In these circumstances, the defendant was not required to pay any compensation or rent to the plaintiff. In support of his argument, learned counsel for the petitioner has placed reliance on R .Kanthimathi and other v. Mrs. Beatrice Xavier Vol. CXXIX (2001-3) PLR, 587, wherein it has been held as under:- “Thus within this legal premises, the submission by learned counsel for the respondent of revival of their old relationship of landlord and tenant when she repudiates this agreement by sending back to the tenant Rs.20,000/- through a cheque (which according to the appellant was not encashed) cannot be accepted. So we have no hesitation to reject the same. Every conduct of the landlady right from the date of entering into agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement all clearly indicates and has to be construed in law that she repudiated her old relationship Civil Revision No.5456 of 2002 3 of landlord and tenant. Thus, after the parties enter into new cloak of seller and purchaser and their relationship to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if parties under the agreement of sale do not perform their obligations remedy may be availed in law as permissible under the law. Hence, we have no hesitation to hold that Courts below including High Court committed error in holding that tenant committed wailful default. When appellant is no more tenant how can non-payment be construed as wailful default.” After hearing learned counsel for the petitioner, I am of the opinion that this revision petition deserves to be allowed. The petitioner, in the present case, has denied the relationship of landlord and tenant between the parties. The question that requires consideration is as to whether in the facts and circumstances of the present case, the petitioner is required to deposit entire amount of compensation for use and occupation of the premises in dispute during the continuation of the suit? The plaintiff had filed a suit for possession by way of ejectment and recovery of arrears of rent/mesne profits. The defendant, on the other hand, has taken the stand that he was no longer in possession of the property in dispute as a tenant. Rather he was in possession of the premises in dispute on the basis of part Civil Revision No.5456 of 2002 4 performance of agreement to sell entered between the parties. Admittedly, the defendant was inducted as a tenant by the plaintiff. However, the case of the defendant is that the plaintiff has agreed to sell the premises in dispute to the defendant and agreement to sell in this regard was executed between the parties. The defendant was now in possession of the premises in dispute on the basis of the agreement to sell and hence, the relationship of landlord and tenant between the parties had come to an end. It has been held by the Apex Court in R.Kanthimathi's case (Supra) that once there is an agreement to sell between the parties, then the old relationship of landlord and tenant comes to an end. The defendant has based his possession on the basis of part performance of agreement to sell. Parties are yet to lead their evidence in support of their case. In these circumstances, the learned trial Court had erred in striking off the defence of the defendant on the ground that he failed to deposit the rent after appearing in the Court. In the facts and circumstances of the case, the defence of the defendant could not be struck of. Accordingly, this revision petition is allowed. The impugned order dated 19.7.2002 passed by the Civil Judge (Jr.Divn.) Gurgaon is set aside. (SABINA) JUDGE July 31 , 2009 anita