RAJIV SAHAI ENDLAW, J. 1. This petition under Article 227 of the Constitution of India has been preferred by the defendant in a suit pending before the Court of Additional District Judge, aggrieved from the order dated 14th May, 2007 dismissing the application of the petitioner/defendant under Section 10 of the CPC.

2. The respondents/plaintiffs sued the petitioner/defendant for ejectment and for recovery of mesne profits / damages for use and occupation. It is the case of the respondents/plaintiffs that the petitioner/defendant was a tenant under the respondents/plaintiffs with respect to premises at N-246, Greater Kailash, Part-I, New

Delhi at a rent of Rs.4,000/- per month; that the tenancy of the petitioner/defendant has been determined; that he has failed to vacate the premises.

3. The petitioner/defendant does not dispute that he was a tenant under the respondents/plaintiffs at a rate of Rs.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 7th 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 different and this Court in the suit for specific performance had also not deemed it appropriate to stay the proceedings in the suit for ejectment and thus dismissed the application.

6. The senior counsel for the petitioner/defendant has relied upon Harjeet Singh Maini Vs. Paramjit Singh Maini 2008 (102) DRJ 446 and Maxwell Securities Pvt. Ltd. Vs. National Stock Exchange of India Ltd. 2001 (60) DRJ 685 both of which are containing principles applicable to Section 10 of the CPC.

7. However, the emphasis of the senior counsel for the petitioner was on consolidation of the suits by transferring the suit for ejectment pending before the Additional District Judge to this Court for trial along with the suit for specific performance filed by the petitioner/defendant.

8. The senior counsel for the petitioner/defendant has also contended that it will be highly inequitable to evict the petitioner/defendant before his claim for specific performance is decided inasmuch as if the claim for specific performance is decided in his favour, he would be entitled to come back into possession and his possession ought not be disturbed for the interregnum.

9. Per contra, the counsel for the respondents/plaintiffs relies on:-

(i) Lachaman Nepak Vs. Badankayalu Syama Babu Subudhi AIR 1989 Orissa 154 where the Division bench of the Orissa High Court declined the stay of eviction proceedings under the Rent Control Act for the reason of pendency of the suit for specific performance on the ground that mere agreement to sell cannot create any interest in or charge in the property under Section 54 of the Transfer of Property Act.

(ii) Karri Satyanarayana Vs. Pichika Veerraju 1996 AIHC 2642 (A.P.) where also stay of eviction proceedings under the local rent statute was denied notwithstanding previously instituted suit for specific performance of sale of that premises.

(iii) Dr. N.P. Tripathi Vs. Smt. Dayamanti Devi AIR 1988 Patna 123 where the Division