1. ' ARSHAD NOOR KHAN, J.---This Revision Application has been directed against the order passed by the learned IV Additional District Judge, Karachi-East in Civil Appeal No,84 of 1997 (Government of Sindh and others v. Mst. Rabia Begum and others), who, while allowing it, set aside the judgment and decree passed by the learned-II Senior Civil Judge, Karachi-East in Civil Suit No,727 of 1996.
2. ' The facts leading rise to the present Revision Application in brief are that the applicants are the owners and landladies of house constructed on plots, bearing Survey Nos. G-205, G-206 & G-207, PIB Colony, Karachi. The said premises was rented out to the respondent No,4, White Hall School by the attorney of the applicants on 22-6-1965 and such rent agreement annexure A/2 was executed on 22-6-1965 and the rate of rent was agreed at Rs,800 per month. It is further stated in the plaint that the respondents Nos.1 to 3 took over the possession of the aforesaid school in pursuance of MLR-118 and the applicants filed ejectment case against the White Hall School Educational Society vide Rent Case No,145/1971, which was allowed by the Rent Controller, but in view of MLR-118, the decree could not be executed. The applicants filed another Rent Application No,4736/1976, which was also dismissed for want of jurisdiction of the Rent Controller, under MLR-118. It is further stated in the plaint that after taking over the possession of the demised premises, the respondents arbitrarily reduced the rent from Rs,800 to Rs,400 per month and also paid no arrears of rent since the date of its acquisition. The applicants filed Civil Suit No,1940/1973 for recovery of arrears of rent, which was decreed partly at the rate of Rs,400 per month and the applicants against the said decree preferred Civil Appeal No,38/1978 before the District Judge, which was allowed on 2-2-1985 and the rate of rent was allowed at the rate of Rs,800 per month. In spite of the order passed in Civil Appeal No,38/1978, the respondents failed to pay the monthly rent at the rate of Rs,800 per month.
3. The applicants filed another ejectment application No,86/1989, which again was dismissed because of MLR-118. It is further stated in the suit that the respondents did not pay the monthly rent for about 28 months, up to June, 1996. Respondent No,4 admitted the said default in payment of rent vide their letter dated 13-5-1995. According to the applicants, the respondents have committed default since from the month of March, 1993 till filing of the suit. It is further stated in the suit that they require the premises in question for their personal bona fide use and for use of their sons who are married and some of them have attained the marriageable age and their present accommodation is not sufficient to meet out their demands, as such the premises is required by them bonafidely for their personal bona fide use and for use of their sons, namely, Nasiruddin, Fariduddin, Nooruddin, Rashid, Fazal and Zahid Fazal. It is further stated in the suit that prior to filing of the suit notice was served on the respondents in the month of June, 1996 to vacate the premises, which was received by the respondents, but was not replied, as such the applicants filed suit for ejectment of the respondent No,4 from the demised premises.
4. ' The notice of the said suit was served on the respondents, who failed to file any written statement for considerable time, as such exparte order was passed against them on 3-4-1997, which order was recalled on the application of respondents filed under Order IX Rule 13 read with section 151, C.P.C. And they were again allowed an opportunity to file written statement within seven days, but they again failed to file written statement, as such their side was closed vide order of the learned trial Court dated 8-10-1997 and the applicants were directed to file affidavit-in-ex parte proof. The applicants filed the said affidavit-in-ex-parte proof, thereby affirming the contents of the plaint in toto and the learned trial Court on the basis of the evidence available on record, decreed the suit on both the counts vide judgment and decree dated 22-10-1997.
5. ' Since no prohibitory order was operating in the appeal, as such the applicants filed Execution Application No,1/1998, which was allowed vide order of the learned trial Court dated 11-3-1998. In pursuance of the order dated 11-3-1998, the writ of possession was issued, which was executed on 20-4-1998 by the bailiff and such endorsement on the writ of possession was recorded by the Head Mistress of White Hall Government Primary School, PIB Colony, to the effect that the vacant possession of the school has been handed over to the bailiff and the endorsement of bailiff shows that he handed over the possession of the premises to the attorney of the landladies. The appeal was heard by the learned IV-Additional District Judge, Karachi, who allowed the same vide order impugned herein, hence the present Revision Application.
6. ' I have heard Mr. Abid Feroze, learned counsel for the applicants. The respondents called absent.
7. ' Mr. Abid Feroze, learned counsel for the applicants, vehemently contended that the learned appellate Court illegally reversed the findings of the learned trial Court on the ground that notice under section 106, Transfer of Property Act has not been served properly by the applicants. He further contended that the premises of the school could not be treated as an industry in view of section 2 of IRO, 1969. He further contended that the default in payment of rent has been admitted by the respondent No,4 and the requirement of the premises for personal bona fide use of the applicants has also not been disproved as the respondents did not file any written statement to controvert the said plea of the applicants. According to him the learned lower Court was not justified in reversing the findings of the learned trial Court. In support of his contention he relied upon the case of Board of Governors, Aitchison College, Lahore v. Punjab Laliour Appellate Tribunal, reported in 2001 SCM R 1928, the case of Province of Sindh through Secretary, Education, Sindh Secretariat, Karachi and others v. Nisar Ahmed, reported in 1983 CLC 1905, and the case of Zahid Mahmood v. Muhammad Sawar, reported in 2000 MLD 952.
8. ' I have considered the arguments advanced on behalf of the applicants and have gone through the entire material available before me as well as the relevant law on the subject.
9. The learned lower Court has non-suited the applicants on the ground that the applicants did not wait for expiry of statutory period of six months after service of notice under section 106 of Transfer of Property Act and that the educational institutions also fall within the definition of industry, therefore, the suit filed by the applicants was not maintainable. The relevant observations made by the learned appellate Court is reproduced hereinbelow in extenso as under: ......... The suit could be filed under the provisions of Transfer of Property Act and as rightly pointed out by the learned advocate of the respondent that suit has been filed under sections 105 and 117 of the Transfer of Property Act. The court has questioned the learned advocate whether he had complied, section 106 of Transfer of Property Act and had sent a notice to the defendant and waited for six months before he filed his suit and he replied in affirmative that he had sent notice and complied the statutory period before filing of this suit. He had also submitted that the lease between the parties is from year to year. Section 106 of Transfer of Property Act contemplates that in case of immovable property for agricultural or manufacturing purposes the lease is deemed to be from year to year, terminable, on the part of lesser or lessee by six months-notice expiring with the end of a year of the tenancy, which means that the plaintiff of lieu giving the notice should have waited for six months for filing this suit. Educational institutions are a form of industry therefore, it was mandatory for the plaintiff to have waited for six months after giving notice and before filing the suit."
10. ' From the findings of the learned lower Court it transpires that A the learned lower Court has non- suited the applicants on two counts, viz. That the educational institution may be treated as industry and that the applicants did not wait for expiry of statutory period of six months after service of notice under section 106 of Transfer of Property Act. It is now to be determined as to whether educational institution could be treated as industry. The term "industry" has been defined in section 2(xiv) of the IRO, 1969, which means any business, trade, undertaking, manufacture or calling of employer and includes any calling, service, employment, occupation or avocation of work and includes mines, quaries and other works for the extraction of minerals from the earth. Sub-clauses
(b) & (c) of clause (xiv) of subsection (2), ibid, is also completely silent with regard to educational institution, being covered under the definition of industry. It is, therefore, evident that the educational institutions have not been included in the definition of the industry provided under section 2(xiv) of IRO, 1969. The same point, as to whether the educational institutions fall within the definition of industry or not, also came for consideration before the Hon'ble Supreme Court in the case of Board of Governors, Aitchison College, Lahore (supra) and the Hon'ble Supreme Court was pleased to observe that the educational institutions do not fall within the definition of industry. The observation made by the Hon'ble Supreme Court in the aforesaid case is usefully quoted hereinbelow for the sake of convenience: "Taking into consideration the above definition of word "industry" without any fear of doubt it can safely be held that the institutions responsible for imparting education like the appellant's organization does not fall within the definition of industry. At this stage reference advantageously can also be made to The University of Delhi and another v. Ram Nath and others (AIR 1963 SC 1873) wherein with reference to the definition of industry qua educational institution under Industrial Disputes Act, 1947 it was held that educational institution does not fall within the definition of an industry."
11. The Hon'ble Supreme Court has, therefore, settled the controversy regarding the status of the educational institutions, nationalized by the Government, as such it could not be said that the suit filed by the landladies for eviction of the educational institution was fully covered under the provisions of sections 105 & 117 of Transfer of Property Act, therefore, the mandatory requirement of service of notice under section 106 of Transfer of Property Act is not obligatory on the landladies before maintaining the suit for ejectment of the educational institution.
12. ' The observation of the learned trial Court that the applicants have not waited for expiry of statutory period of six months as contained in section 106 of Transfer of Property Act, in my humble opinion, is not correct for the reason that the educational institutions do not fall within the definition of term industry as discussed above, therefore, the fulfilment of mandatory requirement of section 106 of the Transfer of Property Act was not obligatory on part of the landladies prior to filing of the suit for ejectment. The said point also came for consideration in the case of Zahid Mahmood (supra), wherein it has been observed that service of notice under section 106 of Transfer of Property Act, prior to filing the suit, is not mandatory. The relevant observation in the case of Zahid Mahmood (supra) is reproduced hereinbelow for the sake of convenience: "8. The issuance of notice under section 106 of the Transfer of Property Act prior to the institution of such a suit is not mandatory and a suit would not become non-maintainable in the absence of such a notice because the institution of the suit would constitute a sufficient notice to the tenant for the vacation of such premises."
13. Even otherwise from the findings of the learned lower Court it appears that the notice under section .106 of Transfer of Property Act was served on the respondents, but the applicants have been non- suited merely on the ground that they did not wait for expiry of statutory period of six months provided in section 106 of Transfer of Property Act, which, in view of aforesaid pronouncement of the Hon'ble superior Courts is contrary to the law. The applicants have, in fact, served a notice prior to filing of the ejectment suit against the respondents which was served on them and after expiry of two months from the date of service of said notice the suit for ejectment of the respondent No,4 was filed, as such the suit in any way was not defective for want of any notice.
14. ' The applicants have filed the suit on the ground of default in payment of rent by the respondent No,4 since from March, 1993 at the rate of Rs,800 per month, which quantum was also determined in Civil Appeal No,38/1978. The said assertion of default committed by respondent No,4 in payment of monthly rent has been admitted by the Head Mistress of White Hall School, who, vide letter dated 13-5-1995, firmly admitted that because of monetary implications the Government had sent Rs,1,300 in budget in the head of rent, whereas the rent from 1993-94 had not been paid and the same will be paid immediately on receipt from the Government. The said letter containing the admission of Head Mistress of the School has not been disputed by the respondents either before the trial court or before the appellate Court, as such the default in payment of rent has been admitted by the respondent No,4, which rendered them liable for ejectment.
15. ' The applicants have also sought the eviction of respondent No,4 on the ground of personal bona fide use of the premises by them and by their sons, which, as discussed above, also remained unshaken as the respondents did not controvert the said plea before the learned trial Court in spite of sufficient opportunity afforded to them to file their written statement. The personal need of the applicants has, therefore, been established on the basis of evidence available on record. The learned trial Court rightly analysed the evidence available before him while passing the judgment and decree which has been set aside by the learned lower Court on the grounds which were not available to the respondents, warranting the setting aside of the judgment and decree passed by the learned trial Court. The learned lower Court has, therefore, committed material illegality while upsetting the judgment and decree passed by the learned trial Court merely on the ground of assumption and presumption and much .Against the evidence available on record. The findings of the learned appellate Court, therefore, could not be sustained.
16. ' For the foregoing reasons the Revision Application is allowed. The order passed by the learned lower Court, which is impugned herein, is hereby set aside. The judgment and decree passed by the learned trial Court is restored . In the peculiar circumstances of the present case, the parties are left to bear their own costs.
17. ' Since the respondent No,4 is running the school and immediate eviction may cause harm and difficulty to the students, as such six months time is allowed to respondent No,4 to vacate the premises and handover its peaceful possession to the applicants subject, however to their depositing rent before the learned trial Court.