The central legal point established in the judgment is the significance of determining the genuineness of the agreement and the bona fide nature of the defense in deciding whether to stay the proceedings of a suit for eviction under Section 10 of the CPC.

Vivek Rusia, J.

The respondent was served prior to 09.12.2015, which is evident from order-sheet dated 09.12.2015. Thereafter, on 16.03.2016 also, he did not appear it seems that despite service of notice, he is not appearing before this Court.

2. Heard.

3. The petitioner/defendant has filed the present petition being aggrieved by order dated 05.08.2015, passed by First Civil Judge, Class-II, Ujjain, by which application under Section 10 of the CPC filed by the petitioner/defendant has been rejected.

4. The respondent being a plaintiff filed a suit for eviction against the defendant/present petitioner. The present petitioner took a defence that there is an agreement of sale between them of the same property and for which he has already instituted a suit No.15-A/2012, which is pending before the Second Civil Judge, Class-II, therefore, the present proceedings are liable to be stayed under Section 10 of the CPC.

5. Earlier, application filed under Section 10 of the CPC was allowed vide order dated 20.12.2013 and the learned civil Judge stayed the proceedings of the present Civil Suit No.41-A/2012. The said order was challenged by way of writ petition by a plaintiff before this Court in W.P.No.715/2014. By order dated 16.05.2014, this Court has set aside the order dated 20.12.2013 and remitted the matter back to trial Court to reconsider the application afresh in light of the judgment of the Supreme Court in case of Joseph Kantharaj and Anr. v. Attharunnisa Begum S, reported in (2010) 2 SCC 619.

6. After the decision of the High Court, the learned trial Court again considered the application under Section 10 of the CPC and vide order dated 06.08.2015 has rejected the same, hence, the present petition, by the defendants.

7. Shri V.K. Jain, learned counsel for the petitioner/defendant submits that though the petitioner was initially inducted as a tenant in the suit premises, but later on he entered with an agreement of sale with the plaintiff by an agreement dated 25.08.2004. Under the said agreement, the total sale consideration amount was Rs.8.00 lac & out of which Rs.6.00 lac was paid on the date of agreement and the balance amount was agreed to be paid at the time of execution of the sale deed. When the plaintiff did not executed the sale deed then the defendant has no option but to file a suit for specific performance. The said suit was filed on 14.02.2012, which was registered as C.S.No.15/2013. After receiving the notice of the suit, now the plaintiff has filed the suit for eviction which is registered as C.S.No.41-A/2012.

8. Shri Jain, learned counsel for the petitioner submits that in the light of judgment passed in the case of Joseph Kantharaj and Anr. (Supra), the learned trial Court did not considered the application under Section 10 of the CPC and rejected the same on the ground that the subject matter of both the suits are different.

9. I have heard learned counsel for the petitioner.

10. The Hon'ble Supreme Court in para 9 and 10 of its judgment passed in the case of Joseph Kantharaj and Anr. (Supra) has held that while deciding the application under Section 10 of the CPC, the Court has to decide the matter, prima-facie, whether the agreement is genuine and the defence is bona-fide, than should defer the proceedings of the suit filed for eviction for eviction.

11. Para 9 and 10 of the aforesaid Judgment is reproduced as under:

"9. There can be no dispute about the general proposition laid down by the High Court in Haji Iqbal Shariff. But the High Court ignored the fact that though the first appellant had admitted that he was earlier the tenant under the previous owner, he had also specifically pleaded that the previous owner had executed an agreement of sale and permitted him to continue in possession in part performance of the said agreement of sale and that therefore he ceased to be a tenant from the date of agreement, namely 11.6.1997, that the relationship of landlord and tenant between him and the previous owner had