Anwaar Hussain, J. Briefly stated facts of the case are that the brother of the appellant and respondents No. 2 and 3 is a mentally disordered and deranged person (hereinafter "the ward" ) who owns land measuring 6-Kanals, 4-Marlas and 21 yards bearing Khata No. 1061 and 1072 situated at Chah Sultan Wala, Mauza Taraf Ravi Tehsil & District Multan (hereinafter "the suit property" ). The appellant who is real sister of the ward was appointed guardian of his person and manager of the suit property by the Court of Protection, Multan in terms of Sections 32 and 33 of the Mental Health Ordinance, 2001 (hereinafter "the Ordinance" ), vide order dated 08.12.2017.
2. Subsequently the appellant, as the manager of the property of the ward, filed application dated 09.01.2018 under Section 36 of the Ordinance (hereinafter "the First Application" ) before the learned Court of Protection seeking permission to sell the suit property . Main ground for seeking permission by the appellant was that the suit property being barren land/vacant plot does not produce any yield or generate any income which can be utilized to meet and fulfil the financial needs of the ward. It was prayed that the permission to sell the suit property may be granted so that some other property such as shop, yielding rent, can be purchased enabling the appellant to use such income for meeting with the needs of the ward. The First Application was dismissed, vide order dated 26.02.2018, by the Court of Protection. Subsequently , another application (hereinafter "the Second Application" ) was filed by the appellant seeking the same relief and the same was also dismissed, vide order dated 27.06.2018 (hereinafter "the impugned order" ). Having her prayer been shunned out and declined by the learned Court of Protection, the appellant has filed the instant appeal.
3. On 01.07.2021, this Court ordered issuance of notices to respondents No.2 and 3 and also directed publication of proclamation in national newspaper for the intimation of public at large in order to approach this Court with respect to any objection qua sale of the suit property . In response to said notices, respondents No.2 and 3 appeared on 14.10.2021. The said proclamation was got published in daily Nawa-e-W aqt, Multan, dated 09.12.2022 for today i.e., 01.02.2022, however , no one has turned up.
4. Learned counsel for appellant has submitted that the impugned order has been passed in a perfunctory manner without appreciation of the law and the learned Court of Protection has failed to apply its judicial mind to the facts of the case and law applicable thereto. Further states that the impugned order has overlooked the fact that the suit property does not yield any income. Respondents No. 2 and 3 have also not objec ted to grant of such permission.
The learned Law Officer also entered appearance on Court' s call and submitted that the true spirit of the Ordinance is to ensure that the ward is looked after for which the Court of Protection must look into attending circumstances of each case while granting or declining the permission to sell the property , which appears to have not been done in the instant case.
5. Arguments heard. Record perused.
6. The sole legal question involved in the matter is to examine whether the learned Court of Protection has rightly exercised its jurisdiction under the Ordinance, while declining the permission to sell the suit property .
7. Before answering the legal question involved, it is pertinent to note that the instant case entails concise facts but seminal consequences and effects on a human life who is mentally disordered and unable to lead his life and manage his affairs on his own and in this regard the regulatory framework of the Ordinance is required to be analyzed. Before doing that, it is imperative to observe that diverse laws and regulatory framework are created, promulgated, enacted, re-enacted, repealed with the avowed aim and object to create and maintain social order in human society and the Ordinance is an example of such enactments. The Ordinance, has been promulgated by the legislature in order to regulate and protect the affairs, lives and property of mentally disordered persons so that they are neither exploited nor left to themselves to fend for. It is well settled by now that the preamble of a legislative instrument works as a gateway which helps to dig out the object and purpose of the law and also brings forth what the legislature intended to achieve through the enactment of the law. Case reported as "The Additional Registrar Company v. Al-Qaim Textile Mills Limited" (2021 CLD 931) is referred in this regard. The preamble of the Ordinance, states as under: "Whereas it is expedient to consolidate and amend the law relating to the treatment and care of mentally disordered persons, to make better provis ions for their care, treatment, managem ent of properties and affairs and to provide for matters connected therewith or incidental thereto and to encourage community care of such mentally disordered persons and further to provide for the promotion of mental health and prevention of mental disorder; The preamble of the Ordinance, clearly contemplates that the object is to achieve the well-being of mentally disordered persons through their treatment and care of their persons and management of their property . It is the above stated object and purpose of the law, which has to be put at the forefront while exercising powers under the Ordinance by the learned Court of Protection.
8. Having object and purpose of the Ordinance in sight, it would be imperative to traverse through various provisions of the Ordinance in order to ascertain whether the learned Court of Protection has rightly exercised its jurisdiction in declining the prayer of the appellant. Section 2(1)(d) defines the Court of Protection which is vested with the jurisdiction under Section 29 of the Ordinance to carry out inquiry upon the application of any of the relative of mentally disordered person to ascertain whether the said person is mentally disordered and is unable to manage his property and affairs himself. Section 30 of the Ordinance provides for the regulation of proceedings of Court of Protection. Section 31 of the Ordinance, empowers the said Court to issue commission to subordinate court to carry on such inquiry . Section 32 empowers the said Court to appoint suitable person to be guardian of person of such mentally disordered person. Section 33 empowers the said Court to appoint any suitable person as manager of the property of such person in order to manage the same, however , under sub-section (2) of Section 33, no legal heir of such person shall be appointed as manager of property unless the Court of Protection for reasons to be recorded in writing deems it for the benefit of such person. Section 34 spells out the responsibility of manager for the care, cost of treatment and maintenance of such mentally disordered person and of such member(s) of his family as are dependent upon him. Section 36 of the Ordinance, provides for the powers of manager of the property and empowers the manager to exercise such powers with regard to property of such mentally deranged person as would have been exercised by such mentally disordered person himself had he not been mentally disordered, however , certain powers such as to mortgage, creation of any charge, or transfer by way of sale, gift, exchange or otherwise deal with such property have been subjected to the permission of the Court of Protection, which has been empowered under Section 36(2) to grant such permission subject to such conditions or restrictions as the said Court may think fit to impose. Thus, Court of Protection is vested with the power to grant conditional or limited permission with respect to the property of such person. Sub-section (3) of Section 36 empowers the Court to invite objections from relatives or friends of such mentally disordered person and make such inquiries as it deems necessary . Section 37 obligates the manager , inter alia, to furnish inventory of immovable property and also makes it obligatory to carry out all transactions under the Ordinance through bank authorized by the Court.
Similarly , the Court of Protection is vested with the power to grant or refuse permission to sell the property of a mentally disordered person. The legislature has also empowered the learned Court of Protection to call for objections to such applications seeking permission and the said Court can also make such inquiries as it deems necessary , however , sub-section (3) of Section 36 provides that while granting or refusing such permission the interest of such mentally disordered person shall be the determining factor . Thus, it is evident from the above discussed provisions coupled with the object and purpose of the Ordinance, that the learned Court of Protection is bound to consider the interest of mentally disordered person as guiding tool for exercise of such power . For this purpose, the learned Court of Protection is empowered to satisfy itself as to what is in the interest of such mentally disordered person.
9. Having sailed through the object of the Ordinance and discussed the provisions thereof above, this Court would proceed to examine whether in the instant case, the learned Court of Protection has exercised its jurisdiction as per the mandate of law. Similarly , this Court, while exercising power of appellate court, would also venture to examine the record to see what weighed with the Court of Protection in refusing to grant such permission. First Application in this regard was filed which was dismissed vide order dated 26.02.2018. Perusal of order dated 26.02.2018 reveals that no inquiry was carried out by the Court of Protection to ascertain whether the property of the mentally disordered person is yielding any income or not or what is the nature of the suit property . It would be imperative to reproduce below the operative part of the order dated 26.02.2018 to see how and on the basis of what considerations, the Court of Protection reached to the conclusion of refusing to grant such permission on the First Application:- "It has been noticed that neither the detail of the property and its location likely to be purchased in the name of mentally retorted person nor the expected consideration amount to be received after selling his property has been disclosed. Up-till now despite specific direction of the court the petitioner has not submitted statement of the accounts regarding the income if any received by her from the landed property of her brother . There is an apprehension of mis-appropriation of the sale proceeds if the petitioner is permitted to sell the property of her brother . This court being a court of prote ction is duly bound to safeguard the rights and interests of the mentally disordered person. Consequently , this petition is dismissed."
(Emphasis supplied)
10. Ironically enough, it is clear that the learned Court of Protection was well aware of its bounden duty to protect the interest of the mentally disordered person as it itself has stated so, however , such bounden duty cannot be exercised only by the refusal to grant such permission without conducting an inquiry and giving cogent reasons.
The only consideration discussed in the operative part of the above referred order is the self-harboured apprehension of misappropriation on part of the learned Court of protection, qua the suit property belonging to the mentally disordered person and failure on part of the appellant to specify the property to be purchased or expected price from the sale of suit property . Such an order by the learned Court of Protection laden with such responsible and onerous task of determining the interest of the mentally disordered person is proverbially as much barren of judicial reasoning as the property of the mentally disordered person has been alleged to be. No attempt has been made by the learned Court of Protection to apprise itself in respect of the interest of the mentally disordered person and status of the suit property or demand from the appellant of expected sale price of suit property . It has neither been ascertained nor discussed as to how a vacant plot and/or barren land not yielding any income is not to be sold out in order to buy such property which could yield income to look after the needs of the mentally disordered person. The Second Application was made by the appellant with the same prayer , which has also been dismissed vide impugned order merely on the ground that such application has earlier been dismissed by the Court of Protection. Operative part of the impugned order reads as under: "Perusal of record shows that a similar application was earlier moved by the petitioner which was dismissed vide order dated 26.02.2018 by Ch. Abdul Rashid Abid, the then learned Sessions Judge, Multan. Since no fresh ground for grant of permission to sell the propert y of the deranged person has been alleg ed, therefore, this application is dismissed."
Even in the impugned order , the learned presiding officer of the Court of Protection has followed the footprints of his predecessor-in-interest even though he had the opportunity to step back and protect the interest of the mentally disordered person under the protection of the Court. The learned Court of Protection seems to be under the impression that such application seeking permission, once refused, cannot be entertained again. In this regard, this Court intends to revert to Section 36 of the Ordinance, which is reproduced as under: "36. Powers of manager of property of mentally disordered person.- (1) Every manager appointed under this Ordinance shall, subject to the provisions of this Ordinance, exercise the same power in regard to the management of the property of the mentally disordered person in respect of which he is appoint ed as manager , as the mentally disordered person would have exercised as owner of the property , had he not been mentally disordered and shall realize all claims due to the estate of the mentally disordered person and pay all debts and discharge all liabilities legally due from that estate and in exercise of powers under this section regard shall be had first of all to the requirements of the mentally disordered person and the rights of the creditors, if any:- Provided that no manager so appointed shall without the permission of the Court-
(a) mortgage, create any charge on, or transfer by sale, gift, exchange or otherwise, any movable or immovable property of the mentally disordered person; or
(b) lease out or give on bailment any such property .
(2) The permission under proviso to sub-section (1) may be granted subject to such conditions or restrictions as the Court may think fit to impose.
(3) The Court shall cause notice of every application for permission to be served on any relative or friend of the mentally disordered person and after considering objections, if any, received from the relatives or friends and after making such inquiries as it may deem necessary , grant or refuse permission having regards to the interest of the mentally disordered person."
(Emphasis supplied)
Use of the words "every application" in Sub-Section (3) of Section 36 indicate s that there is no bar to file second application, however , the issue whether subsequent application could be filed or not when the earlier application under Section 36 was decided on merits and after making inquiry is not directly under issue before this Court at the moment as this Court has already observed that in instant case, the First Application was not decided on merits after following the procedure envisaged under the Ordinance and after making inquiry and determining what is the interest of the mentally disordered person regarding the suit property . There fore, the issue as to whether subsequent application regarding the same property of the mentally disordered person is maintainable or not without disclosing fresh ground when earlier application was decided on merit after carrying out inquiry and refusing such permission on account of same being against the interest of the mentally disordered person is left to some other times when such issue becomes directly under adjudication. At the moment, it is sufficient to observe that in instant case, neither the First nor the Second Application was decided on merit keeping in view the interest of the ward after conducting proper inquiry , which precisely is the core mandate of the Ordinance more so when the appellant has been repeatedly submitting before the learned Court of Protection that the suit property is vacant/barren plot.
11. Reverting to the manner in which the Second Application was dealt, it is imperative to peruse the order sheet of learned Court of Protection. On 1 1.05.2018, learned Court of Protection passed the following order: ???? ???????? ??? ???? ????? ????? ??? ????? ????? ?? ??? ?? ? ?? ??? ??? ?? ???? ???? / ???? ??????? ?? ????? ???? ?? ?? ??? ???? ???? ???? ?? ????? ??? ????? ????? ???? ???? ???? ??? ???? ???? ??????? ?? ? ?? ???? ???? ?? ????? ? ????? ? ?? ??? ?? ??
"??? ??? ??? ?? 18.05.2018 ???? ?????? ???? ?????? ???? ??????
Matter was then taken up on 18.05.2018 when the following order was passed: "Muhammad Hayat Patwari Halqa present with record. He seeks time to visit the property of retorted person.
Adjourned and to come on 02-6-2018 for report of the Patwari. He is directed to appear in person on the next date along with record."
Halqa Patwari concerned submitted his report on 02.06.2018, which reads as under: ???? ???? ??? ???? ????? ??? ? ???? ????? ???? ?? ???? ???? ?????? ???? ??? ??? ????? ??? ?? ?? ????? " ?? ???? ??? ???? ???? ??? 10?????? ????? ?? ????? ??? ???? ????? ?????? ???? ??? ???? ???? ???? ??????? ????? ????? ???? ???? ?????? ? ?? ???? ?? ?????? ??? ???? ?? ???? ?????? ?? ???? ???? ?????? ???? 1072 ???? ????? ??? 11Y 9K-6 M ????? ?? ??? 138 M 17-K ????? ???? 1061 ???? ????? ?? 08-2007 ??? ?? ??? ???? ???? ????? ???? ?????? ?? 16K- 19M-1 1Y ???? ?? ????? 7K-13 M ????? ??? 116K- 8 M ?????
"??? ???? ?? ???? 160000 /-?????? ????? ? ???? ????? ???? ??????
(Emphasis supplied)
Perusal of the report reveals that the suit property is a vacant plot with a boundary wall with no construction thereon, hence, question of yielding any income does not arise and therefore, repeated direction of the learned Court of Protection for submission of statement of accounts qua the suit property are meaningless, non-compliance whereof has been partly made basis of refusal to grant the permission to sell the suit property . Moreover , report of halqa patwari has not been dealt with in any manner while passing the impugned order . Learned counsel for the appellant has placed on record order sheet of the trial court. After passing of the impugned order , the matter was fixed on 10.09.2018, 10.12.2018, 12.03.2019, 28.06.2019, 28.9.2019, 06.01.2020, 06.04.2020, 06.07.2020, 22.08.2020, 21.09.2020, 26.10.2020 and 18.12.2020 for submission of statement of accounts only without appreciating that the suit property is not yielding any income. Perusal of the order sheet reveals that the learned Court of Protection has not taken any step further to determine the welfare of the ward by ascertaining his requirements and granting permission to sell the suit property .
12. In view of what has been discussed, the impugned order is not sustainable in the eye of law, hence, the same is set aside and the application for seekin g permission to sell the suit property is allowed. However , this Court feels appropriate to observe that it is well within the prerogative of the Court of Protection to thrash out the mechanism to ensure that the suit property is sold at a proper and best market price and that the entire sale proceeds are utilized and/or converted into any other property for the benefit of the ward. The appellant present in person as well as respondents No.2 and 3, who are real sisters of the ward, undertake to approach the learned Court of Protection with proposed price offered for the suit property as well as the proposed vendee. In this regard, the Court of Protection is not only at liberty to adopt any procedure as it deems appropriate, inter alia, by closely monitoring the sale process including receipt of funds constituting sale proceeds through bank ing channel, preparation of the registry of the new property to be purchas ed, which can yield income for the benefi t of the ward and/or directing the appellant to invest the sale proceeds of the suit property in any fixed deposit/profit scheme of a Schedule Bank at Multan for some fixed period of time. The arrangement with the Bank could be in the nature of permitting the appellant to withdraw monthly interest/profit amount on the said deposit, so as to be utilized for the well-being of the ward. Needless to observe these are only some of the measures, in opinion of this Court, which the learned Court of Protection can adopt while supervising the use of sale proceeds of the suit property of a mentally deranged person, such as the ward, in a situation where the sole asset of such person is not yielding any income for his benefit and does not in any manner limits the power of the learned Court of Protection, under the Ordinance, to settle such conditions or restrictions as it may deem fit to impose upon the use and investment of the sale proceeds.
13. The present appeal is allowed in above terms.