MIR HAZAR KHAN KHOSO, J.---This appeal by leave of the Couit is directed against the judgment dated 28-9-1993 passed by a Judge in Chambers of the High Court of Balochistan, Quetta.
2. The facts giving rise to the appeal are that landlords Abdul Qadir and Bashir Ahmad, the predecessor-in-interest of respondents Nos.2 to 7, were co-sharers in the property in dispute. They let out the same to Haji Shakar Khan, the predecessor-in-interest of the appellants, for a period of ten years. It is averred by the appellants that during currency of the tenancy Bashir Ahmad, as per deed dated 3-5-1972, agreed to sell his half share to Haji Shakar Khan for consideration of Rs.60,000 of Which Rs.20,000 was allegedly paid in advance and the remaining was to be paid in instalments within a period of two years and thereafter the sale was to be completed. However, Bashir Ahmad and Abdul Qadir filed an application for eviction of Haji Shakar Khan on the ground of default in payment of rent and for their personal use and occupation in December, 1982, in the Court of the Civil Judge-cum-Rent Controller, Quetta. Haji Shakar Khan vehemently resisted the application and filed his written statement, took legal and factual objections including the one which has been reproduced -iereinabove and also on 3-8-1993 filed a civil suit for performance of the agreement of sale. On pleadings of the parties following 8 issues were framed:--
(i) Whether the applicants have sold half portion of premises in question i.e. 12500 feet alongwith saw machine to the respondent in consideration of Rs.60,000? If so, to what effect?
(ii) Whether the respondent has paid Rs.65,400 in instalments to the applicants?
(iii) Whether an agreement was executed between the parties on 3-5-1972?
(iv) Whether the respondent has paid rent in advance to the applicants uptill 31-12-1982?
(v) Whether a sum of Rs.5,400 is already standing to the credit of the respondent with the applicant, if so, to what effect?
(vi) Whether the respondent has failed to pay the rent from March 1980 to November 1982?
(vii) Whether the applicants in good faith require the premises in question for their personal bona fide use and occupation?
(viii) Relief?
3. The parties led evidence in support of their pleadings. At the earlier stage Abdul Qadir and L.Rs.
Of Bashir Ahmad moved application against Haji Shakar Khan alleging that he had failed to comply with the order of the Trial Court in not depositing the rent, his defence be struck off and he be ejected summarily. The Rent Controller, however, turned down their application on 288-1986.
This order was challenged before the High Court of Balochistan, Quetta, who accepted the appeal.
However, it was challenged in this Court (Civil Appeal No.16-Q/1987). Vide order dated 11-6-1990 this Court set aside the abovesaid order and remanded the case to the Trial Court for deciding it on merits in accordance with the law. However, on 29-2-1992 the Rent Cpntroller decided the issues as under:--
(i) affirmative;
(ii) affirmative;
(iii) affirmative; (iv), (v) & (vi) affirmative in favour of the tenants; and (vii) negative. Itioresult whereof rejected the application. On appeal (FrA.O. No.18/1992) a Judge in Chambers of the High Court of Balochistan, Quetta, on 15-12-1992 allowed the appeal and ordered ejectment of the appellants. The observations of the High Court are material for decision of this appeal and, therefore, reproduced as under:- "Thus learned Rent Controller decided all questions relating to execution of agreement to sell half of the property, for which he had no jurisdiction. Reliance if any can be made to the following authorities:--
(1) 1988 CLC 1278;
(2) 1976 SCMR 143;
(3) 1976 SCMR 141;
(4) 1981 CLC 347;
(5) PLD 1982 Lahore 630;
(6) 1989 SCMR 913;
(7) 1990 SCMR 639;
(8) PLD 1991 SC 242.
The ratio of the aforesaid authorities is that in absence of any express or implied condition in alleged agreement to sell regarding. Rented premises, about compensation or cesession of Rent agreement status of party who was tenant would remain as that of tenant with liability to pay rent to the landlord. Non-payment of rent of premises to landlord and suit for specific performance filed by petitioner still pending adjudication, the tenant would remain as tenant irrespective of the agreement to sell. The pertinent authority is 1990 SCMR 639 wherein Hon'ble Supreme Court laid down that regarding agreement to sell the position would remain the same till such time that Civil Court pass decree against landlord in suit for specific performance pending in respect of property and landlord was entitled to recover rent. This view was almost confirmed in PLD 1991 SC 242 wherein it was observed that sale agreement or any other transaction relied upon by tenants was seriously and bona fide disputed by landlord, tenants could not be allowed to retain possession during the litigation, where they continued to deny the ownership of landlord who had inducted them as tenants without any condition or reservation. Tenants in such case, although had a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up hostile title which was denied by landlord, but on the bar of estoppel in this behalf they could not be permitted to remain in occupation and fight the litigation for long time even for decades.
Tenants for more than a decade having been able to keep possession on a claim which had been denied 'by hridlord, would be at liberty to prosecute the litigation wherein they Gould try to establish their claim but same should not be at the cost of andlord owner. Tenants could prosecute their claim at the cost of themselves by vacating the premises, though they would be entitled to an easy and free entry as soon as they finally succeeded in establishing their title against the landlord."
4. Against the abovesaid order the appellant approached this Court: By order dated 6-4-1993 appeal was allowed in the terms as under:-- "Leave to appeal has been sought, against the judgment of the High Court dated 15-12-1992.
(2) The facts of the case are that an eviction application was filed by the respondents on the ground of personal need and default. The application was contested by the petitioner on the ground that there was a sale agreement of half portion made by the co-owner Bashir Ahmad for a consideration of Rs.65,400. The learned Rent Controller dismissed the eviction application holding that the petitioners are co-owners with respondent and the rent had been paid and that the landlords' need was not established. The respondents' appeal was allowed by the impugned judgment on the ground that the remedy for the petitioners was to file a civil suit but in the meanwhile the petitioners must vacate the premises in their possession. The learned High Court relied upon certain precedents of this Court.
(3) The Rent Controller decided the issue of default and personal bona fide requirement of the respondents against them. The learned High Court has not recorded any finding on these issues.
The respondents had sought eviction of the petitioners on the ground of non-payment of rent and bona fide requirement. As there is no finding by the learned High Court, this petition is converted into appeal and is allowed and the case is remanded to the High Court for decision on these two issues. There will be no order as to costs."
5. On remand the High Court again allowed the appeal with observations as under:- "1 have given a detailed judgment regarding the alleged agreement to sell half of the property to the tenant and I have clearly held that suit for specific performance is within the jurisdiction of the Civil Court. These observations have not been set aside by the Supreme Court but the Supreme Court remanded the case that this Court should decide whether any default has been committed in payment of rent and whether the landlord bona fide requires the premises in good faith. In the aforesaid discussion I have already held that tenant has committed default and that the landlord requires the premises in good faith for his personal use and occupation. Therefore, I accept this appeal and set aside order dated 29-2-1992 passed by the Controller, Quetta. I order the tenant to hand over the vacant possession of the demised premises situated on Municipal No.8-10/120 bearing Khasra No.18295/15215/700/7003 measuring about 25000 sq.Ft. At Kansi Road, Shaldara, Quetta, to the landlord within two months from the passing of this order. However, I shall pass no orders as to costs."
6. The appellants approached this Court and leave to appeal was granted with the observations as under:-- "The learned counsel for the petitioners has submitted that there was an agreement of sale between the petitioners and late Bashir Ahmad regarding half portion of the land, therefore, the order of eviction could not be passed; and that the petitioners were not bound to pay the rent to the respondents in respect of half of the premises. On the other hand the learned counsel for the respondents has submitted that the petitioners had abandoned this plea before this Court when the case was remanded on 6-4-1993 to determine the two issues, therefore, the petitioners are estopped ,to raise the above plea in this petition. The High Court in its judgment dated 15-12-1992, while making an order of eviction against the petitioners directed that they might try to establish their right regarding half share of the property in a competent Civil Court. It is stated by both the learned counsel that now a civil suit has been filed and stay has been granted. Leave is granted to consider whether the order of eviction could be passed against the petitioners in view of the fact that the petitioners have alleged that they are owner in their own right in pursuance of the agreement of sale and, therefore, without the partition of the land in dispute the co-owner cannot institute ejectment proceedings against the petitioners."
7. We have heard Mr. Yahya Bakhtiar, Senior Advocate Supreme Court with Mr. S.A.M. Quadri, Advocate-on-Record, for the appellants and Mr. Tariq Mehmood, Advocate Supreme Court with Mr. M. Riaz Ahmad, Advocate-onRecord, for the respondents/caveators.
8. Mr. Yahya Bakhtiar, the learned counsel for the appellants strenuously stressed that Bashir Ahmad had sold his share of the property to his tenant and had received the amount, the earnest money and the balance, but he had failed to fulfil his obligations by completing the sale, hence his clients have filed a suit against his L.Rs. For specific performance before the Civil Court and till decision of the suit the appellants cannot be ejected from the premises, at least from their share without partition of the premises. The learned counsel took us through the agreement deed and the copies of the statements of the accounts maintained by his clients. He tried to convince us that entire balance was paid. In presence of the suit pending between the parties before the Civil Judge it is really difficult for us to determine the genuineness or their effect on the stand taken by the parties. We are, therefore, inclined to leave it for the Trial Court to decide the same. However, the Judge in Chambers of the High Court has taken pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do not find any defect with his observations and conclusion. The factum of the default of the payment of the rent and the requirement of the landlord has been proved. We have neither been persuaded nor satisfied that any defect lies with the judgment of the Judge in Chambers of the High Court which may call for interference of this Court in its appellate jurisdiction. The appeal fails which is dismissed accordingly with costs.