1 Order Reserved on 14.02.2025 Pronouncement on 07.08.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 671 of 2023 1 - Kazi Mohammad Maksud S/o Shri Mohammad Maksud Aged About 62 Years R/o Kazi Complex, Baijnathpara, Tahsil And District Raipur (C.G.) ... Petitioner(s) versus 1 - Mohammad Ayub Raza S/o Late Mohammad Ishaque Aged About 54 Years R/o Shanti Nagar, Raipur, Tahsil And District Raipur (C.G.) 2 - Chhattisgarh Rent Control Tribunal Raipur, District : Raipur, Chhattisgarh 3 - The Rent Controller Raipur District Raipur (C.G.) ... Respondent(s) For Petitioner(s) : Mr. Kshitij Sharma, Advocate For Respondent(s) Nos. 2 & 3 : Mr. Devesh G. Kela, PL For Respondent No. 1 : Mr. Manoj Paranjpe and Mr. Sandeep Patel, Advocate {Hon’ble (Smt.) Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput} C A V Order Per Sachin Singh Rajput, J. This petition has been filed against the order dated 15.07.2022 (Annexure P-1) passed by Chhattisgarh Rent Control Tribunal, Raipur, CG in Appeal No. 31-A/2019 by which the appeal filed against the order dated 19.06.2019 passed by Rent Controller, Raipur, CG in Case No. 33/90(8) year 2015-16, has been dismissed. 2. Facts in short: The petitioner filed an application under Section 12 (4) r/w Schedule-II of the Chhattisgarh Rent Control Act, 2011 (for short “Act of 2011”) inter alia stating that he is the owner of the shop situated on the ground floor of Kazi Manzil, Baijnathpara Raipur. The petitioner had let out the said shop to respondent PAWAN KUMAR Digitally signed by PAWAN KUMAR Date: 2025.08.07 16:33:23 +0530 2 No. 1 for a monthly rent of Rs. 30,000/-, which subsequently was enhanced to Rs. 36,000/- in the year 2015. It is stated in the petition that since the year 2014 the respondent No. 1 stopped making payment of the rent which has turned into the arrears of Rs. 5,04,000/-. Being fed up by this act of respondent No. 1, the petitioner sent a notice to him on 30.07.2015 which though was received by respondent No. 1 on 31.07.2015 itself, he did not bother to respond to the same. The respondent No. 1 while filing reply to the said application of petitioner has denied all the pleas taken by him. Not only this, even the existence of relationship of landlord and tenant between the parties has also been denied by him. By filing the additional submissions, it was pleaded by respondent No. 1 that in fact there was an agreement between him and the petitioner about sale of the disputed shop and for that the amount of Rs. 55,00,000/- given to the petitioner at the time of lease agreement was also adjustable towards the price of the suit shop. However, the petitioner kept avoiding the execution of the sale deed. The respondent No. 1 is also stated to have filed an application under Order 7 Rule 11 of the CPC for rejection of the application filed by the petitioner under Section 12 (4) of the Act of 2011 stating that since the date of sale agreement i.e. 12.06.2014 he is very much in possession of the disputed shop and that he has also filed a Civil Suit against the petitioner for specific performance of the said agreement of sale, and the temporary injunction was also granted in his favour. On the basis of pleadings of the respective parties, the respondent No. 3 rejected the application of the petitioner filed under Section 12 (4) of the Act of 2011 by order dated 19.06.2019 which on appeal has also been affirmed by respondent No. 2 by the order under challenge in this petition. 3. Learned counsel for the petitioner submits that the findings recorded by the Rent Controller as also that of the Tribunal are perverse and contrary to law. He submits that both the Courts below have not appreciated the import of the order of temporary injunction passed Under Order 39 Rule 1 & 2 of CPC in letter in spirit. 3 According to him, both the Courts below have also exceeded the jurisdiction while passing the orders impugned, and therefore, the petition deserves to be allowed and the orders impugned are liable to be set aside. In order to bolster his submission Shri Sharma placed reliance on the judgments of the Hon’ble Supreme Court in cases of S.M. Asif Vs. Virender Kumar Bajaj reported in (2015) 9 SCC 287, H.K. Sharma Vs. Ram Lal reported in (2019) 4 SCC 153, Kamla and others Vs. K.T. Eshwara SA and others reported in (2008) 12 SCC 661, Karan Kapoor Vs. Madhuri Kumar reported in (2022) 10 SCC 496 and a judgment passed by this Court in case of Sushila Tiwari (dead) through Lrs. Vikash Tipathi and others Vs. Anurag Singh and others FA No. 195 of 2011 dated 12.10.2018. 4. On the other hand, learned counsel for the respondent No. 1 supports the orders impugned to be just and proper and submits that the respondent No. 1 is in possession of the suits shop right from the date on which agreement of sale was entered into between them and that in lieu of the said agreement the amount given by respondent No. 1 to the petitioner at the time of lease agreement was also adjustable against the sale consideration consciously and voluntarily. He further submits that since there was already a sale agreement between the petitioner and the respondent No.1, the relationship of landlord and tenant between them ceased to exits. It is submitted that instead of ensuring the execution of the sale deed as per the sale agreement, the petitioner has ventured into an exercise of availing the remedy of eviction of respondent No. 1 from the suit shop and also for arrears of rent, which is not permissible in the eye of law. It is lastly submitted that the findings recorded by both the Courts below keeping in mind the balance of convenience lying in favour of the respondent No. 1 and consequently granting him the relief of temporary injunction, are fully justified and the petition is liable to be dismissed. To buttress his submissions Shri Paranjape relied upon judgments of Hon’ble Supreme Court in case of Thangam and another Vs. Navamani Ammal reported in AIR 2024 SC 1324, 4 Ram Sarup Gupta (Dead) by LRS. Vs. Bishnu Narain Inter College and others reported in AIR 1987 SC 1242, Vidhyadhar Vs, Manikrao and another reported in AIR 1999 SC 1441, K. Akbar Ali Vs. K. Umar Khan and others reported in (2012) SCC 51 and a judgment of this Court dated 01.12.2023 passed in case of S.P. Buildcon Pvt. Ltd Vs. Chandra Gupta and others FA No. 120 of 2023. 5. Heard counsel for the parties and perused the material on record. 6. The petitioner filed the application for eviction inter-alia pleading that the respondent is a tenant in the suit shop and he has stopped payment of rent from October, 2014. As for more than 3 months rent is not paid regularly hence the application for eviction is filed. The crux of the defence of the respondent is that the petitioner has entered into an agreement to sale with the respondent and possession was handed over in lieu of the agreement, therefore the relationships between them as landlord and tenant has come to end. The recital of the agreement clearly indicates the intention of the petitioner to end the tenancy. Huge mount has already been paid, therefore, the application deserves to be dismissed. 7. The core question involved in this petition is whether after the petitioner had entered into an agreement to sale with the respondent in respect to suit property, the relationship of landlord and tenant between them come to end. Therefore, the application of the petitioner for eviction before the Rent Controller cannot be entertained. 8. Facts of the case are not much in dispute. It is an admitted position that the respondent was a tenant of petitioner in the suit property. An agreement to sale of the suit property was entered into between them. An application under Order 7 Rule 11 of CPC was filed by the petitioner before the Rent Controller inter-alia pleading that the petitioner has filed a suit for specific performance of contract in respect to the suit property. The possession of the respondent in the suit property is in lieu of the said agreement. Referring to order passed in the application under Order 7 Rule 11 of 5 CPC passed by the learned District Judge, Raipur wherein it is observed that the possession of the petitioner in the suit property is in lieu of the said agreement. As the possession of the petitioner in the suit property is in lieu of the agreement to sale, hence the petitioner cannot be evicted treating him as a tenant from the suit property. The application was resisted by the petitioner. 9. The Rent Controller allowed the application of the petitioner. It was observed by the Rent Controller that from the perusal of the order of the District Judge it is established that the possession of the petitioner in the suit property is in lieu of the agreement and not as a tenant. Under the provisions of Act of 2011, the relationship of landlord and tenant is not established hence the application for eviction is not maintainable and the application for eviction was rejected. The appeal against the said order was also dismissed. 10. In this context a perusal of agreement to sale entered between the parties is required to be looked into. The agreement was entered into between the parties on 12.06.2014. Recital of the agreement reveals that respondent is in possession of the suit property as tenant. The suit property is about 1000 square feet and the petitioner agreed to sale the same @ of Rs. 10,000/- per square feet. Rs. 20,00,000/- was paid as earnest money. Rs. 15,00,000/- security deposit of tenancy is also adjusted. Later on the petitioner further received Rs. 20,00,000/- and an acknowledgment was also executed. From perusal of the agreement to sale it is apparent that the respondent is the tenant of the suit property. It does not reflect that tenancy of the respondent has come to an end and the possession of the respondent is new in lieu of the agreement. 11. While deciding the application under Order 39 Rule 1 & 2 of CPC, the learned District Judge observed that on one hand the respondent is claiming his possession in lieu of the agreement whereas according to petitioner, the possession of the respondent is as tenant. The learned District Judge found three ingredients i.e. prima facie cause, balance of convenience and irreparable loss in favour of the petitioner. 6 The learned District Judge allowed the said application and granted temporary injunction in favour of the respondent. Learned District Judge ordered that the petitioner would not evict the respondent without due process of law. The petitioner was also injected from alimenting the suit property. 12. It is a well settled principle of law that while deciding the application under Order 7 Rule 11 CPC, only plaint averment is required to look into. The defence of defendant taken in the written statement cannot be considered. In the application of eviction filed by the petitioner it is categorically pleaded that the respondent is the tenant of the suit property. The respondent has not paid the rent for more than three months. Therefore, the application is being filed. In the written statement, the respondent took a defence of coming into possession in new of the sale agreement and tenancy coming to end. At this stage, the provisions contained in Order 7 Rule 11 CPC requires to be noticed as under:- “11. Rejection of plaint. The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: (e) Where it is not filed in duplicate: (f) Where the plaintiff fails to comply with the provisions of Rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave 7 injustice to the plaintiff.” It is quite vivid that the plaint can be rejected only on the ground enumerated in Order 7 Rule 11 CPC. The respondent is using to bring the case under Order 7 Rule 11 (a) that the petitioner has no cause of action to file the application for eviction. Respondent is deriving the strength from the agreement to sale and be in possession in new of it as tenancy has come to an end. 13. It has been argued by Mr. Paranjpe that by executing the agreement to sale and adjusting the security deposit in earnest money by the petitioner clearly indicates his intention to end the tenancy. In view of the above, no cause of action exits to file the application for eviction. The application for eviction has to read as a whole. When petitioner has lost the right to sue that he is not entitled to get relief as claimed. We are unable to accept this contention of Mr. Paranjpe for the reason more than one. Firstly the pleadings of applications clearly envisages that the respondent is the tenant in the suit premises. Secondly the intention of the petitioner to end the tenancy in light of agreement to sale is a mixed question of law and fact. This cannot be decided in the application under Order 7 Rule 11 CPC and can only be decided by leading evidence. Another facet of the case is that observation made by the learned District Judge while deciding the application for temporary injunction is not a finding on merits of the case. The observation is only for the purpose of deciding the interlocutory application for grant of temporary injunction. The Rent Controller swayed away with the observation and held that the possession of the respondent is in lieu of agreement and tenancy has come to an end. We are of the considering view that the Rent Controller fell in error in allowing the application under Order 7 Rule 11 of CPC. Entering into an agreement to sale with tenant does not debar the landlord to file a suit for eviction. Acceptance of earnest money and adjustment of security deposit of respondent by petitioner would not ipso facto lead to a irresistible conclusion that relationship of landlord and tenant has come to end. This can only be 8 decided in a trial and leading the evidence. If the parties intends to end the tenancy while entering an agreement to sale, a specific clause in this regard has to be mentioned in the agreement to sale as held by the Hon’ble Supreme Court in case of H.K. Sharma (Supra). Perusal of agreement to sale does not indicate any specific clause with regard to termination of tenancy. At this stage of deciding the application under Order 7 Rule 11 CPC the same cannot be assumed or inferred. 14. With due respect the case laws cited by Mr. Paranjpe in the facts and circumstances of this case do not help in any manners. They are distinguishable on facts of this case. In case of Thangam (supra) issue was with regard to genuineness of will. In case of Ram Sarup Gupta (Dead) by LRS. (supra) it is held that in absence of pleading evidence cannot be considered. Case of Vidhyadhar (supra) is in respect of adverse inference against a party to suit who has not entered in the witness box. Other case laws are on distinguishable fact. 15. As a fall out of the above discussion, the impugned orders passed by the Rent Control Tribunal (Annexure P-1) and Rent Controller (Annexure P-2) cannot sustain and hereby set aside. Writ petition is allowed. Before parting we observe that the learned Rent Controller will frame a specific issue with regard to landlord and tenant relationship between the parties and as to whether it has come to an end by execution of agreement to sale. It may be decided by leading evidence as preliminary issue or on merits. The parties are direct to appear before the Rent Controller on 01st September, 2025. 16. No cost. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Pawan