Javed Iqbal, J.--This appeal with leave of the Court is directed against the order dated 11.12.1997 whereby the revision petition preferred on behalf of appellant has been dismissed and the judgments/decrees passed by learned trial and appellate Courts have been kept intact.
2. Leave to appeal was granted vide order dated 19A. 1999 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-- "This petition has been filed against the impugned order dated 11.12.1997 of the High Court dismissing the revision petition filed by the petitioner/plaintiff in limine and thereby confirming the impugned orders of the two Courts below. The trial Court had rejected the plaint of the suit of the plaintiff under Order VII Rule 11 CPC. We have heard Sh. Khizar Hayat, learned counsel for the petitioner and with his assistance, gone through the record. In this case the property involved is about 318 Kanals 1 marla, which admittedly belonged to petitioner Jeewan Shah and the registered sale-deed in favour of his real brother Muhammad Shah (respondent) was challenged in the earlier first suit filed on 3.6.1989, by the petitioner through his wife his minor son and one Abdur Rehman. It was alleged in the plaint that the petitioner had been in wrongful confinement of his brother and his signature on the sale-deed were obtained by un-due influence and pressure.
(B) The High Court has referred to Article 92 of the First Schedule to the Limitation Act 1908 it filed in 1994 was barred by that in any case the second suit time, the period provided in the said Article for filing a suit for holding a document to have been obtained fraudulently to be 3 years whereas in this case the second suit was filed after 5 years. Learned counsel relies upon Section 6 of the Limitation Act for the proposition that the petitioner was a person of unsound mind and this assertion is corroborated, according to learned counsel, by the pleading of the respondent himself, who even treats and alleges that the petitioner was person of unsound mind.
(C) That in any case this was a question which could not have been decided without some evidence having recorded, and in the circumstances the rejection of the plaint under Order VII Rule 11 C.P.C. was not in accordance with law.
According to us, a case for grant of leave is made out. This petition is, accordingly, allowed. Later on, during the pendency of the first suit, petitioner Jeewan Shah was impleaded as a plaintiff in the suit. During the pendency of the first suit, a second suit was filed on 29.1.1994 by Jeewan Shah through his brother Ghulam Rasool Shah and an additional ground was taken that Jeewan Shah was person of unsound mind and as such even otherwise the sale was not legal and binding on Jeewan Shah. During the pendency of the two suits, the first suit was withdrawn unconditionally on which an application under Order VII Rule 11 CPC was filed by the respondent Muhammad Shah, which was allowed by the trial Court and the plaint in the second suit was rejected apparently on the provisions of Order 11 Rule 2 CPC and Order XXIII C.P.C. The appeal filed by the petitioner was dismissed by the appellate Court and as observed, the High Court has dismissed the revision petition of the petitioner in limine.
2. In support of the present petition it is submitted by learned counsel as follows:--
(A) In this case neither Order II Rule 2 nor Order XXIII Rule 1 CPC was attracted inasmuch as both the suits were pending at the time of the first suit was withdrawn. Reliance was placed on a judgment of this Court reported in the case of Ghulam Nabi and others vs. Seth Muhammad Yaqub and others and leave is granted consider the above contention advanced by the learned counsel."
3. Heard Sheikh Khizar Hayat, learned ASC on behalf of appellant and Mr. Gulzarin Kiani, learned ASC for respondents at length, scanned the entire record with their assistance and perused the judgment impugned carefully. After having gone through the entire record we are of the view that the case in hand is a classic example of manipulation, fabrication and every attempt has been made to usurp the property of appellant Jeewan Shah under the garb of his insanity which was also pleaded by the respondent while filing written statement before District Collector, Multan in a partition suit and got him appointed a guardian of Jeewan Shah being insane in the suit and appeal preferred before the Revenue Court, plaint dated 2.7.1997 and written statement on behalf of Muhammad Shah dated .22.12.1997 and orders of Revenue Court dated 9.10.1979 and 15.5.1980 were not taken into consideration. It is worth mentioning that insanity of Jeewan Shah was pleaded time and again by Muhammad Shah respondent on various occasions before revenue forum and Civil Court were neither dilated upon nor decided which in fact has resulted in serious miscarriage of justice. The question of insanity, in view of the peculiar circumstances of the case, was quite important and should have been determined in view of its substantial affects on merits of the case.
The legal import and value of all the transactions/deeds got made/done through Jeewan Shah including alienation and sale of property in dispute, execution of power-of-attorney in favour of Abdul Rehman Shah must be examined and validity thereof be ascertained keeping in view the insanity of Jeewan Shah if so determined. It also needs determination as to whether respondent could have filed a suit having no legal cause of action to deprive the appellant from his property.
The question as to whether Jeewan Shah being insane could have filed any suit and it was so done on his behalf by Muhammad Shah, the suit would not be legally deemed to have been instituted, requires consideration. The record further reflects that second suit was also filed on behalf of Jeewan Shah through his guardian and first suit was dismissed by means of order dated 26.10.1994 passed by learned trial Court. It is significant to note that in second suit the issue qua insanity of Jeewan Shah was framed, determination whereof would have substantial bearing on the entire controversy. The suit, however, was dismissed by the learned trial Court on 23.4.1996 under Order 7 Rule 11 CPC. The appeal filed by Jeewan Shah met the same fate by order dated 16.9.1997 passed by learned District Judge, Multan wherein it was observed that since Jeewan Shah has contracted marriage as a result whereof his son was also born and accordingly he cannot be presumed to be insane or lunatic which observation is neither logical nor reasonable as insanity is nothing to do with marriage and further more the degree of insanity was never determined by any forum on the basis of evidence. The learned Civil Judge should have decided the issue framed qua insanity of Jeewan Shah and got him declared as insane or lunatic by following the relevant procedure as enunciated in the Lunacy Act, 1912 as the case may be by following the dictum as laid down in case of Jamila Begum v. Awam-un-Nass (PLD 1978 Lahore 1376) whereby the question qua determination of mental capacity has been dealt with, relevant portion whereof is reproduced herein below for ready reference:-- "The Court should have put homely questions keeping in view the feeblemindedness and weak intellect of the person alleged to be a lunatic and should have examined him in Court. He could also have been examined on his dietary habits as well as on other points, how he was treated by others, how much land he had, who cultivated it, whether he could plough his land, whether he had any complaint to make of his sister, brother-in-law and others, whether he had a wife or had a child_ In fact, a number of questions which can be put to a child of a few years of age could be put to him. The object of the Act is not fulfilled by a perfunctory examination. He should also have been made to sit with the respondents for some time and to talk to them and then examined again with a view to find out his capacity of understanding and to judge the correctness of the observations of the medical expert."
4. The factum of unsoundness of mind legally and medically does not convey similar meaning, "from the medical point of view even a feeble-minded person or a borderline mentally deficient is a person of unsound mind. It is a disease which has to be cured clinically or by use of psychiatric methods. But this is not so in law. It is settled that insanity is not mental infirmity but something more. Even if a person is not sufficiently intelligent to manage his own affairs, he is not necessarily of unsound mind." (Mahipati v. Mt. Changuna AIR 1934 Nag. 27, George P.O. Sherman v. Edwin Sherman Schora (1875) 24 W R 124, Joshi Ram Krishan v. Rukmini Bai AIR 1949 All, 449, Mst. Teka Devi v. Gopal Das AIR 1930 Lah. 289 Sonabati Debi v. Narayan AIR 1935 Pat. 423, Jamila Begum v. Awam- un-Nass (PLD 1978 Lahore 1376).
5. There is no cavil with the proposition that in a civil suit the question of insanity cannot be determined without recording evidence by affording proper opportunity of hearing to the party concerned to substantiate the factum of insanity by leading evidence. The Court is duty bound to protect the interest of a lunatic person.
6. The point which appears to be more significant is that in view of the pendency of second suit, how Order 23(1) CPC could have been made applicable because undoubtedly second suit was pending adjudication at the relevant time. It has also been observed that the parties in both the suits were different because in the earlier suit Jeewan Shah, Shahida Bibi, Muhammad Qavi and Abdur Rehman Shah were the plaintiffs while Muhammad Shah, Mazhar Hussain Shah and Muzaffar Hussain Shah were shown as defendants while in the second suit Jeewan Shah was the plaintiff and Muhammad Shah and Abdur Rehman Shah were shown as defendants: The cause of action also appears to be different as in the earlier suit the genuineness and authenticity of the documents which remained in question were challenged on the basis of coercion, wrongful confinement and threats to the life of Jeewan Shah whereas in the second suit the above mentioned documents were challenged on the basis of insanity. This aspect of the matter should have been considered prior invoking to the provisions as contained in Order 7 Rule 11 CPC.
7. No doubt that at later stage the factum of insanity was challenged but how it could have been done by Muhammad Shah as the suit for jactitation of marriage was also filed by Muhammad Shah on behalf of Jeewan Shah on the basis of insanity which was in the knowledge of Muhammad Shah by whom it was exploited on every occasion. As mentioned herein above, the plea of insanity was also raised in a categoric manner by Muhammad Shah before different revenue forums/Civil Courts. We are also of the considered view that the provisions as contained in Order 2 Rule 2 CPC cannot be made applicable without having gone through the entire evidence and peculiar circumstances of the case which was never done. The question as to whether the provisions as contained in Order 32 CPC could have been ignored in this case, also deserves consideration. In such view of the matter the judgment impugned passed by the learned High Court as well as learned District Judge, Multan are hereby set aside and the second civil suit shall be treated as pending to be disposed of in accordance with law on merits after recording the evidence and affording proper opportunity of hearing to all concerned without being influenced from any observation made hereinabove.