MUZAMIL AKHTAR SHABIR, J.---Through this constitutional petition, the petitioner has called in question order' dated 16.12.2017 passed by the District and Sessions Judge, Faisalabad as Court of Protection ("Court of Protection") constituted under the Mental Health Ordinance, 2001 ("Ordinance") whereby the Court of Protection accepted the application filed by Muhammad Iqbal, respondent No,2 and recalled its earlier order dated 24.06.2016 whereby the petitioner was appointed as guardian of respondent No,2 who was stated to be suffering from mental disorder.
2. The brief facts of the case are that the petitioner filed an application with the Court of Protection seeking to be appointed as guardian of respondent No,2 stating therein that respondent No,2 suffers from mental and psychiatric disease and is not in a position to manage himself and his affairs. Along with the said application he produced medical certificates issued by the Board of Psychiatrists of Combined Military Hospital (CMH), Okara dated 23.06.2014 and also by District Assessm ent Board of Social Welfare, Women Development and Bait-ulMaal Department dated 25.09.2013 showing the respondent No,2 as mentally incapacitated person, who suffers from schizophrenia. The Court of Protection appointed the petitioner as guardian of the respondent No,2 vide its order dated 24.06.2016. Thereafter, respondent No,2 himself filed an application with the Court of Protection to recall its earlier order dated 24.06.2016 on the ground that the same had been obtained on the basis of fraud and concealment of facts by submitting false and fabricated documents and medical reports. The Court of Protection vide order dated 16.12.2017 recalled the earlier order dated 24.06.2016 and cancelled the guardianship certificate of person and property of respondent No,2 issued in favour of the petitioner. The petitioner has called in question the afore referred order dated 16.12.2017 through this constitutional petition.
3. The learned counsel for the petitioner has argued that Court of Protection after appointing the petitioner as guardian of respondent No,2 had become functus officio and could not recall its earlier order. Besides, the medical report issued by the Board is not proper as respondent No,2 has not been kept under observation and without his personal examination and keeping him under observation, the medical report could not be issued. Moreover, the respondent No,2 suffers from schizophrenia and is not in a position to maintain himself therefore, the order passed by Court of Protection to recall its earlier order is without any lawful authority and legal justification.
4. The learned Assistant Advocate General, Punjab on Court's call has supported the legal position that the Court of Protection in order to do justice could recall its earlier order if the circumstances so demanded.
5. Heard. Record perused.
6. The petitioner is the brother of respondent No,2. He claims that respondent No,2 is a patient of schizophrenia and has been so declared by the Board of Psychiatrists of Combined Military Hospital (CMH), Okara on 23.06.2014 and also by District Assessment Board of Social Welfare, Women Development and Bait-ul-Maal Department on 25.09.2013. The petitioner has relied upon certificates issued by the afore-referred authorities in support of his claim. Keeping in view the afore-referred certificates, the Court of Protection appointed the petitioner as guardian of respondent No,2 relating to his person and property vide order dated 24.06.2016. From the said order, it is not apparent whether respondent No,2 or his any other relative was associated with the proceedings or not. Rather it appears that petitioner only impleaded public at large as respondent without impleading the respondent No,2 or his any other relative. Therefore, it appears that the order dated 24.0F 1)16 has been passed without providing opportunity of hearing to the respondent No, 2 or other family members. Every court or public functionary was supposed to function in good faith, honestly and within the precincts of its power so that person concerned should be treated in accordance with law and rights guaranteed by Article 4 of the Constitution, which included principles of natural justice, procedural fairness and procedural propriety. Any action which was mala fide or colourable or order passed without opportunity of hearing was not regarded as action in accordance with law. Reliance may be placed on Pir Imran Saiid v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan (2015 SCM R 1257). Thus the order dated 24.06.2016 was hit by the principles of natural justice and is liable to be set aside on this ground.
7. Another aspect of the matter is that the report in respect of Muhammad Iqbal, respondent No, 2 issued by the Board of Psychiatrists of Combined Military Hospital (CMII), Okara dated 23.06.2014 attached with the said application shows as under: "The 45 years old gentleman came to psychiatric OPD along with his brother for evaluation of symptoms. Through examination and history revealed that he had been suffering from psychiatric illness schizophrenia since long. He cannot eat, think, interact due to the illness and wholly dependent on his family members for money and clothing. He cannot be held responsible for any act due to severe mental illness. He needs constant supervision from family and timely medication. It is recommended that he must be given pension as per rule in order to alleviate some suffering upon him. This opinion is final."
8. Another certificate obtained from the District Assessment Board of Social Welfare, Women Development and Bait-ul-Maal Department dated 25.09.2013 shows respondent No,2 to be mentally disabled on the basis of nature of disability shown as schizophrenia and his disability is congenital.
9. From perusal of both the afore-referred reports it appears that it has not been mentioned that how was the respondent No, 2 identified. It has not been established that the person being examined was Muhammad Iqbal Respondent No,
2. The Court of Protection with bona fide intention in earlier round took the said reports to be correct. Had the respondent No, 2 been provided an opportunity to contest the said reports he may have raised objection against the same, which could not be done as the petitioner had not impleaded him as a party and had let the said court to believe the reports that the respondent No, 2 suffered from mental disorder and was not in a position to maintain, represent or defend himself.
10.The Respondent No,2 filed an application for recalling of the order dated 24.06.2016 as having been obtained on the basis of fraud and misrepresentation etc. practiced on behalf of the petitioner. The Court of Protection referred the matter to Medical Board for medical examination of respondent No,2 wherein the Medical Board on 30.08.2017 opined as under: "He is found to be suffering from "No psychiatric illness."
11.The said Board consisted of 09 Medical Specialists of different Government Medical Institutions and found nothing to believe that respondent No,2 is mentally retarded and unable to handle his daily affairs and to look after/manage his agricultural land. The Court of Protection itself put certain questions to respondent No,2 in order to evaluate the position and observed that he answered the questions perfectly and it was proved beyond reasonable doubt that respondent No,2 is a normal man and not mentally sick. Therefore, the Court of Protection accepted the application filed by respondent No,2 and cancelled the guardianship certificate dated 24.06.2016 by observing that respondent No,2 does not require any guardian of his person and property.
12.The counsel for the petitioner has argued that the respondent No,2 suffers from mental disorder as he is suffering from schizophrenia so he is unable to represent himself. The Medical Board vide order dated 30.08.2017 has opined that the respondent No, 2 is not suffering from any psychiatric illness, therefore, this ground is not made out. Even otherwise, without commenting upon whether the petitioner is suffering from Schizophrenia or not the honourable Supreme Court in Judgment reported as Mst. Safia Bano v. Home Department. Government of Punjab and others (PLD 2017 SC 18) has observed that Schizophrenia is not a permanent mental disorder. The relevant portion is reproduced below: "10. Thus, schizophrenia is not a permanent mental disorder rather, imbalance, increasing or decreasing, depending the level of stress. In recent years, the prognosis has been improved with drugs, by vigorous psychological and social managements, and rehabilitation. It is therefore, a recoverable disease, which, in all the cases, does not fall within the definition of 'mental disorder' as defined in the Mental Health Ordinance, 2011".
13. The counsel for the petitioner has argued that the respondent No,2 was not kept under observation in a medical facility before reaching the conclusion in the matter relating to his mental health so the report of the Medical Board is not reliable and is likely to be set aside and new Board is to be constituted for the purpose of determining the actual position relating to his mental health.
This Court does not agree with the afore-referred argument raised by the counsel for the petitioner for the reason that for assessm ent of the mental health of a person it is not a mandatory requirement to keep him under observation in a psychiatric facility for forming a medical opinion relating to assessm ent of his mental health. The medical practitioners/doctors can adopt the procedure most suitable on the case to case basis and if they require admission of patient for assessm ent or treatment is required he may be admitted to a psychiatrist facility. In the present case the respondent No,2 has not been found to be suffering from any psychiatric illness, therefore there was no need to admit him for assessment and the opinion of the Board was sufficient for the purpose of Court of Protection to determine the facts and there is no need to reconstitute the Boaril for reexamination of the respondent No,
2. Besides, the respondent No, 2 cannot be made to undergo medical examination on the whims and wishes of the petitioner, without there being any substance in support of the allegations raised by the petitioner.
14. When originally the guardian had to be appointed, the Court of Protection had to observe the following procedure mentioned in Section 30 of the Ordinance: "30. Regulation of proceedings of the Court of Protection.
(1) The following provisions shall regulate the proceedings of the Court of Protection with regard to the matter to which they relate, namely:-
(a) Notice shall be given to the mentally disordered person of the time and place at which it is proposed to hold the inquiry;
(b) if it appears that personal service on the alleged mentally disordered person would be ineffectual, the Court may direct such substituted service of notice as it thinks fit;
(c) the Court may also direct copy of such notice to be served upon any relative of the alleged mentally disordered person and upon any other person to whom in the opinion of the Court notice of the application should be given;
(d) the Court may require the alleged mentally disordered person to attend, at such convenient time and place as it may appoint for the purpose of being personally examined by the Court, or to any person from whom the Court may desire to have a report of the mental capacity and condition of such mentally disordered person;
(e) the Court may likewise make an order authorizing any person or persons therein named to have access to the alleged mentally disordered person for the purpose of personal examination; and 69 the attendance and examination of the alleged mentally disordered person under the provisions of clause (d) and clause (e) shall, if the alleged mentally disordered person be a woman who, according to customs of the country, ought not to be compelled to appear in public, lie regulated by the law and practice for the examination of such persons in other civil cases.
(2) The Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said proceedings.
Upon the completion of the inquiry, the Court shall determine whether the alleged mentally disordered person is suffering from mental disorder and is incapable of managing himself and his affairs, or may come to a special finding that such person lacks the capacity to manage his affairs, but is capable of managing himself and is not dangerous to himself or to others, or may make any such order it deems fit, in the circumstances of the case, in the best interests of such person".
15.The petitioner could not demonstrate that the procedure provided in Section 30 (supra) was followed. Rather the court relied upon the reports filed by the respondent No,2 and did not refer the matter to any Medical Board or examine the respondent No,2 itself before passing the order, therefore, the order dated 24.06.2016 suffered from material irregularities that had caused prejudice to the rights of respondent No,2, hence, the order was not sustainable in law on that account as well.
16.The learned counsel for the petitioner has argued that the Court of Protection after appointing the petitioner as guardian of the respondent No, 2 had become functus officio and could neither get the petitioner medically examined again nor has the power to recall or set aside its earlier order. This Court is not in agreement with the argument of the counsel for the petitioner as finality is not attached to the order of appointment of guardian of a person allegedly suffering from mental disorder as the court always retains the powers to amend, modify, set-aside and recall such order to determine the welfare of such person and secondly, the Court of Protection is entitled to get a person suffering from mental disorder re-examined in order to see whether the said person has attained his mental health. Reliance in this regard is placed on Section 45 of the Ordinance which is reproduced below: "45. Inquiry by Court of Protection into cessation of mental disorder --
(1) Where the Court has reason to believe that any person who was found to be mentally disordered has ceased to be mentally disordered, it may direct any court subordinate to it to inquire whether such person has ceased to be mentally disordered.
(2) An inquiry under subsection (1) shall, so far as may be, conducted under this Ordinance.
(3) If after an inquiry under this section, it is found that the mental disorder of a person has ceased, the Court shall order all actions taken in respect of such person under this Ordinance to be set aside on such terms and conditions as that Court thinks fit to impose.
(4) Without prejudice to the generality powers given above, the court shall have powers to make such orders and give such directions as the Court thinks fit, for the betterment of such a person."
17. After following the procedure the Court of Protection reached the conclusion that respondent No,2 was not mentally disordered person as he did not suffer from any psychiatric illness and, therefore, rightly passed the order for setting-aside the order of appointment of guardian and also set aside the guardianship certificate. Even if the respondent No,2 had earlier been wrongly declared to be a mentally disordered person, the same procedure could be adopted by the Court of Protection to recall and set aside the orders. No exception can be taken to the recall of orders on that account.
18. There is another way to look into the matter. Where any order is passed by the court of competent jurisdiction without following the procedure, the same cannot be said to be an order passed with proper exercise of jurisdiction especially when the result reached therein has caused prejudice to any of the other party and is negated by material that has later on been brought on record. Even otherwise, every court is competent to recall its order if the same is obtained by practicing fraud, misrepresentation or is based on material irregularity and erroneous exercise of jurisdiction, that has resulted in miscarriage of justice. Besides it is by now settled that act of the court should not prejudice any person and where any court did not comply with the mandatory provisions of law or omitted to pass an order required by law in the prescribed manner, then the litigant/parties could not be taxed, much less penalized for the act or omission of the court.
Reliance is placed on Muhammad Ijaz and another v. Muhammad Shaft through L.Rs, (2016 SCM R 834) wherein it is held as under: "There is a well-known maxim "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man) thus, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not with the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law.
19. Reliance is also placed on Wasal Khan and others v. Dr. Niaz All Khan (2016 SCM R 40) wherein it is held as under: "Once it is established that initial error was committed by the learned Civil Judge, then the blame cannot be shifted to the respondent/preemptor, in view of the well embedded principle that an act of the court shall prejudice none."
20. Now initially the error was committed by the Court of Protection in its earlier order, therefore, the petitioner cannot take benefit of the said order by stating that the Court of Protection had become functus officio especially when the earlier order was passed not on the basis of real and complete facts of the case which were not brought before the said court rather the same was passed on the basis of reports cited by the petitioner and the Court of Protection was of the opinion while taking into consideration the said reports that respondent No,2 may have been mentally disordered.
Where error is committed by the Court of Protection, the same could not be utilized for the benefit of the persons taking advantage of such error. Reliance is placed on Abdul Rashid v. Abdul Salam and others (1991 SCM R 2012).
21. Even otherwise, this Court in its constitutional jurisdiction would not set aside any order even if passed without jurisdiction if cures a manifest illegality and substantial justice has been done.
Reliance is placed on Nawab Syed Raunaq All and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236) wherein it is held that where order cures a manifest illegality, then extraordinary jurisdiction ought not to be allowed to be invoked. Object of constitutional jurisdiction is to foster justice and not to perpetuate illegality and the jurisdiction must be exercised in aid of justice.
22. When the respondent No,2 brought to the notice of the Court of Protection through application that the petitioner had obtained the order dated 24.06.2016 by fraud, misrepresentation and by placing on record fictitious reports, the court has rightly recalled its earlier order to cure the manifest illegality in its earlier order to foster justice, so no exception can be taken against the order dated 16.12.2017 and the same is upheld.
23. Besides there is another, aspect of the matter that the order passed by the Court of Protection was appealable under Section 46 of the Ordinance which is reproduced below: "Sec.
46. Appeal to High Court. An appeal shall lie to the High Court from an order made by a Court of Protection under this Chapter, within a period of sixty days from the date of order of the said Court."
The petitioner has not availed the alternate remedy. The constitutional petition would not be maintainable in view of availability of alternate remedy as well and is liable to be dismissed on that ground also.
24. For what has been discussed above, this constitutional petition being devoid of any merits is dismissed.