Rajiv Sahai Endlaw, J.

1. The appeal impugns the judgment and decree (dated 21st April, 2012 of the Court of the Additional District Judge (ADJ) (Central)-12, Tis Hazari Courts, Delhi in CS No.39/2004 (Unique Case ID No.02401C60492004) filed by the two respondents/plaintiffs against the appellant/defendant) on admissions of ejectment of the appellant/defendant, after determination of tenancy, from property No.E-44/10, Okhla Industrial Area, Phase-II, New Delhi-110020.

2. The appeal is accompanied with an application for condonation of 285 days delay in filing thereof. Notice only of the application for condonation of delay was issued and the counsel for the respondents/plaintiffs has filed reply thereto. On 11th July, 2013, while adjourning hearing on the application on request of the counsel for the appellant/defendant, the counsels were asked to, subject to the outcome of the application for condonation of delay, also come prepared for arguments on the merits of the appeal. Since the enquiry into mesne profits/damages was then still underway before the Trial Court and by requisitioning the Trial Court record the said enquiry would have got stalled, on the statement of the counsel for the appellant/defendant that the copies of the entire Trial Court record had been filed and giving liberty to the counsel for the respondents/plaintiffs to file copies of any other document on Trial Court record, the matter was adjourned.

3. On the next date i.e. 24th September, 2013, following order was passed:

“1. This appeal is preferred against the judgment on admissions, of ejectment of the appellant from the premises earlier in its tenancy.

2. The senior counsel for the appellant states that the appellant had also entered into an agreement to purchase the tenancy premises and had filed a suit for specific performance of the said agreement and which suit has been dismissed on merits; however a first appeal, being RFA(OS) No.39/2011 against the said dismissal is pending consideration and vide interim order dated 23rd March, 2011 confirmed on 5th October, 2011 therein, the appellant has been restrained from parting with possession of the property without leave of the Court and the respondents have also been restrained from creating third party interest in the property without leave of the Court. He states that the same amounts to an order of status quo qua possession and thus the hearing of the present appeal be adjourned awaiting the outcome of RFA(OS) No.39/2011.

3. It has been enquired from the senior counsel for the appellant, whether in part performance of the agreement to sell, the possession of the property was delivered to the appellant.

4. The senior counsel for the appellant answers that the appellant, without prejudice to its rights and contentions had continued to pay the rent after the agreement to sell also.

5. The aforesaid is indicative of the tenancy having continued and the agreement of sale being distinct from the agreement of tenancy.

6. In that view of the matter, in my view, the outcome of the present appeal is not dependent upon the outcome of the appeal preferred against the dismissal of the suit for specific performance. I have recently in Sunil Kapoor Vs. Himmat Singh 167 (2010) DLT 806 had an occasion to discuss in detail the said aspect and where it has been held that the ejectment in such cases cannot await the decision in a claim for specific performance of an agreement of sale of the property.

7. As far as the contention of the senior counsel for the appellant, of the interim orders in RFA(OS) No.39/2011 is concerned, the same in my view, do not come in the way of ejectment in accordance with law of the appellant as a tenant from the property. The appellant if successful in the claim for specific performance, would be entitled to possession in accordance therewith.

8. It has thus been informed that the appellant can continue in possession only if it arrives at mutually acceptable terms with the respondents of pay