COL. (R) DR. RIFFAT SAEED Versus Professor ZAHEER ADNAN
JAWAD HASSAN, J.--- The Petitioner through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution ), has impugned the orders dated 07.02.2023 and 26.07.2022, passed by the learned Courts below, whereby her Application under Order XXXII Rules 3 and 15 C.P.C. for appointment of next friend/guardian of the Respondent No.1, was dismissed.
2. Brief facts of the case are that the Petitioner, being one of the legal heirs of late Brigadier (R) Muzaffar Ali Khan Zahid, filed a suit for declaration, separate possession through partition and permanent and mandatory injunction against the Respondents, alleging that they had deprived her and other legal heirs of their rightful inheritance. The cause of action arose when the Petitioner came to know that Respondent No.1 and his family members had allegedly executed forged, fabricated and fraudulent gift deeds dated 08.08.2011 and 09.08.2011, pertaining to a bungalow constructed on Plot No.49/A-1, Westridge Housing Scheme-II, Rawalpindi Cantt, and had also procured bogus mutations Nos. 3913 and 1194, both dated 31.12.2012, in respect of agricultural lands situated in Mouza Devi and Mouza Jatli, Tehsil Gujar Khan, District Rawalpindi. The Respondent No.1, who is the Petitioner s real brother, has been suffering from schizophrenia for over a decade and was declared permanently incapacitated by the Standing Medical Board of Benazir Bhutto Hospital, Rawalpindi. Consequently, he was retired from service by Pir Mehr Ali Shah Arid Agriculture University on medical grounds. Due to his unsoundness of mind, the Petitioner sued Respondent No.1 through his wife, Mst. Saima Zaheer, as his next friend under Order XXXII Rules 3 and 15 C.P.C., and also filed a separate application for her formal appointment as next friend, duly supported by an affidavit. Mst. Saima Zaheer participated in the proceedings, submitted a written statement, and never disputed her husband s mental infirmity. The learned trial court dismissed the aforesaid Application and adjourned the suit sine die until a guardian was appointed under the Mental Health Ordinance, 2001 (the Ordinance ). The Petitioner s revision was also dismissed by the learned Additional District Judge, Rawalpindi, vide order dated 07.02.2023, leading to the present writ petition.
3. Learned counsel for the Petitioner submitted that the impugned orders are illegal, arbitrary, and contrary to the settled principles of law. He added that the Respondent No.1 has already been declared of unsound mind by a competent medical board and the learned courts below erred in law by holding that his next friend could only be appointed after formal adjudication under the Ordinance. He further submitted that the provisions of Order XXXII, C.P.C. specifically empower a civil court to appoint a next friend or guardian for a person of unsound mind at any stage of civil proceedings, under the Ordinance, whose scope is confined to medical care, treatment and management of the property of mentally disordered persons.
Learned counsel also added that the learned courts below misread the record and ignored the fact that the Respondent No.1 was already represented in the suit through his wife, Mst. Saima Zaheer, who is a fit and proper person having no adverse interest. He contended that no objections were ever raised regarding her appointment as next friend, and her participation in the proceedings validated her representative capacity. He argued that both the Courts below misconstrued Order XXXII Rule 15 C.P.C. by assuming that a declaration under the Ordinance was a prerequisite, which is contrary to the legislative intent. He lastly submitted that both courts below committed serious illegality by dismissing the Petitioner s application in summary manner and adjourning the suit indefinitely, thereby causing a miscarriage of justice. He prayed that the impugned orders be set aside and Mst. Saima Zaheer be appointed as the next friend of Respondent No.1, so that the proceedings may continue in accordance with law. Learned counsel in support of his arguments placed reliance on the judgments reported as Malik Arshad Hussain Awan v. Messrs United Bank Limited (PLD 2024 SC 595), Zaffar Afzal and others v. Ashiq Hussain (PLD 2023 SC 456), Tanveer Mahboob and another v. Haroon and others (2003 SCMR 480), Karam Din and 2 others v. Syeda Shaukat Sultana (1986 CLC 1625), Sultan and others v. Nazar Sultan (PLD 1993 Lahore 232) and Muhammad Nawaz Khan and others v. Islam-ud-Din (1991 MLD 1523) .
4. Conversely, learned counsel for the Respondents has vehemently objected to the maintainability of this Petition by stating that both the learned Courts below have rightly passed the impugned orders strictly in accordance with law. He further submitted that where a special law applies, the general law stands excluded in its operation. In support of his arguments, learned counsel relied on the judgments reported as Attaullah Khan and others v. Samiullah and others (2007 SCMR 298), Arshad Ehsan through Legal Guardian v. Sheikh Ehsan Ghani and 2 others (PLD 2006 Lahore 654), Naseer Ahmad v. Muhammad Khan (2015 CLC 566), Abdul Majeed v. Muhammad Ishaque through his Legal Heirs (1989 CLC 833), Jalil Ahmad v. Public Service Commission and another (1998 CLC 435) and Munshi Abdul Ghani and another v. Protiva Rani Devi and others (PLD 1952 Dacca 450) .
5. Arguments heard. Record perused.
6. The primary question involved in this case is whether the learned trial court was justified in dismissing the Petitioner s application under Order XXXII Rules 3 and 15 of the C.P.C. on the ground that no guardian had been appointed under the Ordinance and in adjourning the suit sine die until such appointment. Upon examination of the record, it is evident that the Respondent No.1, against whom the application was moved, allegedly has been declared to be suffering from schizophrenia by a competent medical board and was retired from service on medical grounds. The Petitioner had accordingly sought the appointment of Respondent No.1 s wife/Mst. Saima Zaheer, as his next friend/guardian ad litem to represent him in the proceedings.
7. The Order VII, Rule 1(d), provides where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect . Then comes Order XXXII ORDER XXXII (SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND) , Rule 14, C.P.C., which reads as follows:
4. Who may act as next friend or be appointed guardian for the suit.__
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.
(3) No person shall without his consent be appointed guardian for the suit.
(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested, and may give directions for the repayment of allowance of such costs as justice and the circumstances of the case may require.
Then comes the Order XXXII Rule 15, but the trial Court without discussing the aforesaid provisions of C.P.C. has passed the impugned order dated 26.07.2022, in the following manner:
In view of the above discussion, the application moved on behalf of applicant/plaintiff under Order XXXII, Rules 3 and 15 C.P.C. is hereby dismissed and file is sine die adjourned by allowing the application till the appointment of guardian from court of competent jurisdiction.
Thereafter, the revisional court passed the impugned order dated 07.02.2023 without properly discussing the aforesaid legal provisions and dismissed the revision filed by the Petitioner.
8. It is pertinent to mention here that the Order XXXII Rule 15, C.P.C. provides that Application of rules to persons of unsound mind. The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued . The said Rule, therefore, contemplates two distinct categories of persons:
(i) those already adjudged as persons of unsound mind by a competent authority; and
(ii) those not so adjudged but found by the Court itself, upon inquiry, to be incapable of protecting their interests owing to mental infirmity.
In either case, the Court is obligated to appoint a guardian for the suit, ensuring that such a person is properly represented and his interests safeguarded in the proceedings.
9. The distinction between a guardian for the suit under Order XXXII, C.P.C. and a guardian of person or property under Sections 29, 32 and 33 of the Ordinance must be clearly understood. The appointment of a guardian under the Ordinance pertains to the broader care, treatment, and property management of mentally disordered persons. For ready reference the aforesaid Sections are reproduced as under:
29. Judicial proceedings. Whenever any person is possessed of property and is alleged to be mentally disordered, the Court of Protection, within whose jurisdiction such person is residing may, upon application by any of his relatives having obtained consent in writing of the 24[Advocate General Punjab] by order direct an inquiry for the purpose of ascertaining whether such person is mentally disordered and incapable of managing himself, his property and his affairs.
30.
31.
32. Appointment of guardian. Where a mentally disordered person is incapable of taking care of himself, the Court may appoint any suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance.
33. Management of property of mentally disordered person. (1) Where the property of the mentally disordered person who is incapable of managing it, the Court shall appoint any suitable person to be the manager of such property. (2) No person, who is a legal heir of a mentally disordered person, shall be appointed under section 32 to be the guardian of such a person or the manager of his property, as the case may be, unless the Court for reasons to be recorded in writing considers that such appointment is for the benefit of the mentally disordered person. (3) The guardian of a mentally disordered person and the manager of his property appointed under this Ordinance shall be paid, from out of the property of the mentally disordered person, such allowance as the Court may determine.
However, the appointment of a guardian under Order XXXII, C.P.C. also known as a guardian ad litem is limited to representation in litigation. It is temporary and confined to the particular suit, ensuring that the proceedings continue efficiently without prejudice to the person s rights. The trial court, therefore, is not precluded from appointing a guardian ad litem under Order XXXII, C.P.C. merely because no guardian has yet been appointed under the Ordinance.
10. This precise legal position has been authoritatively settled by the Hon ble Supreme Court of Pakistan in the aforementioned judgment (PLD 2024 SC 595) , wherein it was held that the Banking Court (and, by extension, all Civil Courts) has the power to conduct an inquiry under Order XXXII Rule 15, C.P.C. to determine the unsoundness of mind of a party and to appoint a guardian for representation in the suit, without first seeking appointment of a guardian under the Ordinance. The Supreme Court clarified that:
Where no guardian has been appointed under the Mental Health Ordinance, it does not preclude the Civil Court, or the Banking Court, to proceed and appoint a guardian for the suit under Order XXXII of the C.P.C., so that the interest of a mentally disordered person is protected before the court of law and also ensures the continuation and efficient conclusion of the trial.
The Court further observed that the concept of a guardian ad litem is rooted in procedural justice and aims to prevent miscarriage of justice due to lack of representation of persons suffering from mental infirmity.
11. The learned trial court, however, dismissed the Petitioner s application summarily without undertaking the inquiry contemplated under Order XXXII Rule 15, C.P.C., and erroneously held that the application was premature in the absence of a guardian appointed under the Ordinance. This approach is contrary to the procedural framework of the C.P.C. and the principle enunciated in the judgment PLD 2024 SC 595 . Moreover, the revisional court also failed to appreciate that the scope of the Ordinance and the C.P.C. is distinct the former governs medical and property management aspects, while the latter concerns procedural representation in judicial proceedings.
12. The trial court ought to have first determined the question of mental infirmity through evidence, and if satisfied that the Respondent No.1 was incapable of protecting his interests, should appoint a suitable guardian for the limited purpose of the suit. Such an inquiry falls squarely within the court s jurisdiction under Order XXXII Rule 15, C.P.C. and does not require prior adjudication under the Ordinance. The Court was further required, under Order XIV Rule 2, C.P.C., to decide this question of law at the initial stage before proceeding to frame or settle factual issues.
13. In light of the foregoing discussion and the ratio laid down by the Hon ble Supreme Court in PLD 2024 SC 595 , this Court finds that the impugned orders dated 26.07.2022 and 07.02.2023 are unsustainable in the eyes of law. Both the courts below misapplied the provisions of Order XXXII, C.P.C. and failed to exercise jurisdiction vested in them. This writ petition is thus allowed . The impugned orders dated 26.07.2022 and 07.02.2023 are hereby set aside. The case is remanded to the District Judge for its proper entrustment to the Court of competent jurisdiction, which shall first decide the Petitioner s application under Order XXXII Rules 3 and 15, C.P.C., after conducting an inquiry in accordance with law. Upon such determination, the trial court shall proceed to decide the main suit expeditiously and strictly in accordance with law, ensuring that the Respondent No.1 s interests are duly protected throughout the proceedings.
UN/R-5/L Petition allowed.