1991CLC72 (PLP)

A man cannot be expected to live in seclusion detached from his social, moral, legal and religious obligations nor can he be expected to completely exclude his family members from the enjoyment of his property particularly when he is legally bound to maintain, provide shelter and abode to them. While interpreting the provision under consideration one cannot close his eyes to the realities of life and human and social aspects of our day to day life. Considering from this aspect one would be reluctant to give a limited and restricted interpretation to the term `his own residence' to exclude husband, wife, children, parents and dependent blood relations living with the asessee. The meaning of the term `his own residence' has also to be considered in the social, economic and religious background of the assessee. This is an era of renaissance of Islam and we would be failing in our duty if the question relating to personal and family life of a Muslim is not interpreted in the light of Injunctions of Islam. Keeping this principle in view while interpreting the term `his own residence' and `family members' the legal, social and religious obligations of the assessee have to be given due weight. It is now well settled that the words `own residence' will include the family members of the owner as well. Therefore, it has to be seen whether as in the present case the parents can be called family members and their residence in the house owned by their son can be treated as his own residence. The assessee is a Muslim and, therefore, the obligations which are enjoined upon him under the injunctions of Holy Qur'an should be obeyed and followed by him. In this regard it may be mentioned that the Holy Quran enjoins a Muslim to be kind and respectful to his parents and also to maintain them. This is a message of universal application irrespective of caste, creed or religion. It is the duty of the son to provide shelter, abode, maintenance and comfort to his parents. They are members of his family and cannot be separated as a separate and distinct family unit. In this regard reference can be made to Muhammad Nawaz and four others v. Altaf Rasool and others P L D 1985 Karachi

353. This was a case under Fatal Accidents Act where question arose whether in the case of accidental death of a boy aged eight years the parents can claim compensation. Naimuddin, J. (as he then was) repelling the contentions based on the judgments which had followed English cases that parents of a minor son cannot be termed to have suffered any damages and were not entitled to compensation, observed: Lastly, the answer to the question whether the child would have been helpful or useful to his parents or not, would also depend on the social or economical conditions in which it was professing, for in oriental or Muslim society service to or maintenance of parents by their children or vice versa is a must as it is an article of faith with every member of Muslim family. Here I may quote English translation of three verses from Holy Qur'an which enjoins every Muslim to be kind and give company to parents, which in my opinion, imply material support and maintenance: "The Lord hath decreed That ye worship none but Him, And that ye be kind To parents. Whether one Or both of them attain Old age in the life, Say not to them a word Of contempt, nor repel them, But address them In terms of honour.' (S. XVII‑23). "And kind to his parents, And he was not overbearing or rebellious." (S.XIX‑14) "We have enjoined on man Kindness to his parents. In pain did his mother Bear him, and in pain Did she give him birth. The carrying of the (child) To his weaning is (A period of) thirty months. At length, when he reaches The age of full strength And attains forty years, He says `O my Lord Grateful for Thy favour which thou hast bestowed Upon me, and upon both My parents, and that I May work righteousness Such as Thou may set approve, And be gracious to me. In my issue, Truly. Have I turned to Thee And truly do I bow (To Thee) in Islam." (S.XLVI‑15) Further, it is common experience that in Muslim society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning. The rule propounded by Islmic Law for maintenance of the parents may equally apply not only to Muslims but to the entire Universe as it is a rule of justice and affords security to the old parents mostly those who may be dependent. In view of the above discussion we are of the view that the term `his own residence' will include the residence and occupation of the house by the parents." On the same reasoning requirement for residence of the mother who is residing with the landlord or is to reside with him will be covered by section 15 (2) (vii). It is not denied that the mother is an old lady. It has been pointed out by the advocate for the appellant that she is residing with her daughter on the first floor. This may be so because the respondent had been abroad in service and she I had no option but to reside there. But now as the respondent has come back to Pakistan, the mother would like to reside with his son. In our social and cultural background the sons are required to maintain their parents and not the daughters. Therefore in these circumstances if the respondent wants the premises for his residence as well as for her mother it is covered by the term `his own use'. The respondent requires the premises for his daughter and for his son also. So far as the son is concerned admittedly at the time of filing the ejectment application he was of a marriageable age and was to be married. The respondent wants to accommodate him on the first floor and he himself would reside with his mother, wife and daughter on the ground floor. Mr. Nizam Ahmad has contended that the son has been married and he is residing in another house and has produced an additional affidavit. Firstly such an affidavit cannot be entertained as evidence and secondly even the documents produced do not show that the house in which he is allegedly residing belongs to the respondent or his son. The respondent's son has filed his affidavit supporting him. The need of his son and daughter has been fully established. The learned counsel for the appellant contended that the requirement is not bona fide as before the ejectment case was filed the respondent was negotiating for sale of the house and had demanded Rs.40 lacs but as the negotiation failed he filed this case. This plea was not taken in the written H statement and furthermore mere negotiation for sale cannot be a circumstance which militates against the bona fide of the landlord. The over all evidence produced by the respondent is consistent and supported by the witnesses. I am therefore of the view that the respondent has succeeded in making out a case for his requirement and for the requirement of his family members enumerated above. The impugned order does not require any interference. The appeal is therefore dismissed. The appellant is granted four months time to hand over vacant possession of the disputed premises to the respondent. A.A./M‑1204/K Appeal dismissed.