ORDER; This order will dispose of Civil Revision No. 664 of 1986, Civil Revision No. 665 of 1986 and Civil Revision No. 666 of 1986. All the three revisions have arisen out of three suits entitled Syeda Shoukat Sultana v.- Karam Din etc. No. 698/1 of 1985, Syeda Shaukat Sultana v. Mst. Munawwar Sultana etc. No. 699/1 of 1985 and Syeda Shaukat Sultana v. Faqir Syed Sabih-ud-Din No. 697/1 of 1985 instituted by Mst. Syeda Shaukat Sultana through her next guardian namely Faqir Syed Salahuddin her real brother. In the first suit she sought the cancellation of sale-deed being document No. 2815 Book No.1, Volume No. 506, registered in the office of Sub-Registrar, Lahore on 10-2-1981, allegedly executed by her in favour of Karam Din, Shah Din and Atta Muhammad on the ground that she was of unsound mind since her birth as such was not competent to enter into any contract for the transfer of her any of the properties. In the second suit she sought the cancellation of gift deed being document No. 5284 Book No.1, Volume No. 525, entered in the book of Sub-Registrar City on 18-3-1981. Allegedly executed by her in favour of Mst. Munawar Sultana and Faqir Syed Moiz-ud-Din and an oral gift entered in daily diary of Patwari dated 28-5-1981 Report No. 439 made in favour of Begum Namwar Jalil by Mst. Munawar Sultana, and the sale-deed being the document No. 12346 Book No.1 Volume No. 565, entered on 21-6-1981 in the book of Sub-Registrar, Lahore executed by Mst. Munawwar Sultana in favour of Karam Din, Shah Din and Atta Muhammad, oral gift entered in daily diary of Patwari report No. 837 dated 5-12-1982 by Mst. Munawwar Sultana and in Favour of Agha Bashir Ahmad, and sale-deed No. 4045 additional Book No.1, Volume No. 720 entered on 12-2- 1983 in the book of Sub-Registrar, Lahore Cantt. Executed by Faqir Syed Moiz-ud-Din in favour of Karam Din, Shah Din and Atta Muhammad and the sale-deed being document No. 34503, Book No.1, Volume No.1690 dated 12-12-1984 entered in the book of Sub-Registrar, Lahore Cantt. Executed by Agha Bashir Ahmad in favour of Miraj Bibi on the ground that she was of unsound mind since her birth as such was not competent to enter into any contract for the transfer of her any of the properties. In the third suit she sought the cancellation of sale-deed being document No. 5241, Book No.1 Volume No. 610, registered in the office of Sub-Registrar, Lahore on 10-6-1978, allegedly executed by her in favour of Faqir Syed Sabih-ud-Din and Samina Begum on the ground that she was of unsound mind since her birth as such was not competent to enter into any contract for the transfer of her any of the properties.
2. The learned Civil Judge rejected the plaints in the said suits under Order VII, rule 11 , C.P.C. Vide his order dated 7-8-1985 after observing that the next friend of the plaintiff /respondent had not produced any document on the record to show that Shaukat Sultana was in fact a woman of unsound mind. According to section 62 of their Lunacy Act IV of 1912 an application had to be made before the District Judge for getting a declaration that a person was of unsound mind. Only after obtaining a certificate from the District Court that such a person was a lunatic, the suit could be filed on behalf of the lunatic. No such certificate was obtained in which view the suit had not been properly filed on behalf of Syeda Shaukat Sultana. In view of section 62 of the Lunacy Act the suit was not maintainable being barred by law.
3. Being aggrieved therefrom the respondent carried three appeals which came to be decided by the learned Additional District Judge, Lahore who disposed of all the three appeals by one judgment dated 7-12-1985. The learned Additional District Judge observed that the learned Civil Judge had wrongly presumed that a suit could be filed through a next friend only after having been declared as a person of unsound mind and incapable of looking after his interest by some competent Court. A suit had to be filed by a person of unsound mind through a next friend and that was the Court, seized of the matter which was to determine as to whether a person. Filing the suit through a next friend was of unsound mind or was suffering from mental infirmity. The learned Civil Judge had wrongly interpreted the law as laid down in rule 15 of Order XXXII, C.P.C. He had failed to see that Order VII, rule 11, C . P . C . Was not applicable to the cases. The mental infirmity being a question of fact had to be settled by the Court .Itself. The impugned orders were neither legal nor covered by the provision of law under which those had been passed. The learned Civil Judge travelled beyond the scope of Order VII, rule 11, C.P.C. While passing the impugned orders and the decrees. The learned Additional District Judge accepted all the three appeals and set aside the impugned orders having the force of decree and remanded the cases to the learned Civil Judge to decide afresh according to law.
4. The learned counsel for the petitioners in the said three revisions has raised his contention on the same basis as was done by the learned Civil Judge, by maintaining that the suit filed through the next friend was not competent since Mst. Syeda Shaukat Sultana had not been adjudged as a lunatic by the District Judge under section 62 of the Lunacy Act, IV of 1912. The learned Additional District Judge while reversing the orders of the learned Civil Judge had misinterpreted and misread the provisions of rule 15, Order XXXII, C.P.C. The learned counsel in support of his contention has relied upon Mst. Zainab Bibi v. Ghulam Nabi and another PLD 1964 (W.P.) B.J. 1, this decision does not cater for the question in issue in the cases. What it says is that the factum of lunacy should be determined judiciously and a Court is to refrain from arriving at finding on the basis of its own personal observation. Dan v. Said and others PLD 1975 Lah. 1563, this decision does not advance the case of the petitioners rather it is against the petitioners. It is in very clear words laid down in this case that since the appellant suffered from mental infirmity with lucid intervals, therefore, it was the duty of the trial Court to find out as to whether at the time when he filed the present suit he was mentally firm, and if not, whether the suit was properly filed though his next friend. This decision keeps a due regard for rule 15 of Order. XXXII, C.P.C.
5. The contention so raised is misconceived one for the reason that the old section that is section 463 of the Civil Procedure Code 1882 applied only to persons of unsound mind adjudged to be so under Act XXXV of 1858 or under any other law in force, yet the decisions were given even under the old law to the effect that the Court had inherent power to appoint a guardian for persons of unsound mind though not so adjudged. Keeping in view the Legislature has come to give effect to those decisions by enacting rule 15, Order XXXII, C.P.C. In providing also for the cases of persons not so adjudged under which the Court has been enabled in a case where it is alleged that a person is of unsound mind but the other party denies that, to hold a judicial enquiry in order to find out as to whether the person so alleged is incapable of protecting his own interest. Rule 15 of Order XXXII, C.P.C. Is being reproduced here:- "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."
In view of the plain reading of which it cannot be successfully contended that a suit by a person of unsound mind filed through a next friend is not competent unless the person is adjudged by the District Judge under section 62 of the Lunacy Act IV of 1912 as a pre-requisite. The learned Additional District Judge has rightly reversed the orders of the learned Civil Judge on the force of rule 15, Order XXXII, C.P.C, which require no interference by this Court, therefore, the three revision C petitions are dismissed in limine being without any substance.
A.A.Revisions dismissed