ORDER :

(Neeraj Tiwari, J.)

1. Heard Sri Avnish Kumar Srivastava, learned counsel for the petitioner and Sri Rahul Pandey, learned counsel for the respondent.

2. Case was heard on 27.3.2023, Court has passed the following order:-

"Heard Sri Avnish Kumar Srivastava, learned counsel for the petitioner and Sri Rahul Pandey, learned counsel for the respondent.

Learned counsel for the petitioner submitted that earlier he was tenant of plaintiff-respondent. During the tenancy, a registered agreement to sale dated 06.01.2009 was entered upon between the parties, upon a consideration of Rs. 3,00,000/-, out of which, petitioner has deposited 2,94,000/-but later on, plaintiff-respondent refused to execute the sale deed in favour of petitioner, for which, petitioner has filed suit for specific performance of contract, being Suit No. 876 of 2011. During the pendency of said suit, plaintiff-respondent has filed JSCC Suit No. 30 of 2014, upon which, notice has been issued, in which, he has not complied the provision of Order XV, Rule 5, C.P.C. on the ground that after execution of registered agreement to sale dated 06.01.2009, petitioner's title has been changed from tenant to purchaser.

In support of his contention, learned counsel for the petitioner has placed reliance upon the Judgment of Apex Court in the case of R. Kanthimathi And Anr. Vs. Beatrice Xavier (Mrs) : AIR 2003 SC 4149.

Per contra, Sri Rahul Pandey, learned counsel for the plaintiff-respondent submitted that Apex Court in its latest judgment in Civil Appeal Nos. 1237-1238 of 2019 (Dr. H.K. Sharma Vs. Sri Ram Lal), after considering the judgment of R. Kanthimathi(Supra) has held that, that was based upon the peculiar language of agreement to sale, and not in rem. Therefore, in lack of such language, relationship of tenant and landlord shall continue.

At this stage, learned counsel for the petitioner submitted that he has not gone through the judgment of Apex Court in the matter of Dr. H.K. Sharma(Supra), therefore, he may be granted 24 hours time to go through the said judgment.

On the request of learned counsel for the petitioner, put up tomorrow, i.e. 28.03.2023 at 10.00 AM as fresh."

3. Learned counsel for the petitioner submitted that Apex Court in the matter of Dr. H.K. Sharma Vs. Sri Ram Lal passed in Civil Appeal Nos. 1237-1238 of 2019, agreement to sale was not a registered document whereas in the case of petitioner, agreement to sale is registered document, therefore, ratio of law settled in aforesaid judgment would not be applicable in the present case. He next submitted that as petitioner is already in possession of the house in question, therefore, there is no occasion for clause of deemed surrender.

4. Undisputed facts of the case is that petitioner was earlier tenant of house in question and registered agreement to sale dated 6.1.2009 was entered between the parties, but same has never been executed. It is also undisputed that petitioner has stopped to pay rent.

5. Once the payment of rent has been stopped coupled with this fact that agreement to sale has not been executed, status of petitioner has to be seen by this Court.

6. Being confronted by the Court that under which capacity he is still residing house in question upon which he has submitted that he is residing in house in question as purchaser. Again, Court has queried that without execution of sale deed and fulfilling terms and conditions of agreement to sale as to how, he has obtained the status of purchaser upon which, he could not satisfy the Court.

7. Sri Rahul Pandey, learned counsel for the respondent has opposed the submission of learned counsel for the petitioner and submitted that as on date, agreement to sale has not been executed and petitioner has filed suit for specific performance in which no stay order has been granted in favour of petitioner to reside in house in question. The stay order is only pertaining to non transfer of property in question. He next submitted that in light of judgment