' This judgment shall dispose of FA.O. Nos.238, 239 and 240 of 1991, which arise between the same parties and involve similar controversy.
2. Fateh Ali, Ghulam Haider and Ali Muhammad son of Jalal, respondents Nos.5 to 7 herein, are owners of land measuring 104 Kanals 12 Marlas situate in Mauza Mokhal Sindhwan, Tehsil and District Gujranwala, as also land measuring 227 Kanals 3 Marlas situate in Chak No,174, Dahranwala Bangla, Tehsil Chistian Sharif, District Bahawalnagar. According to the claim of respondent No,1, the aforesaid three persons had executed a document on 26-4-1987 appointing him as their general attorney in respect of land situate in Chak No,174. Dahranwala Bangla, Tehsil Chishtian Sharif, District Bahawalnagar. Allah Rakha, appellant herein, who is a nephew of respondents Nos. 5 to 7, filed a suit on 20-7-1988, challenging the execution and validity of the said document inter alia on the ground that the so-called executants were persons of unsound mind. On 10-10-1989, an application under section 63 of the Lunacy Act, 1912, was also filed by the appellant before the District Judge, Gujranwala. This application was contested by respondent No,1 as also by Mst.
Nawab Bibi, who is a sister of respondents Nos.5 to 7. By his order dated 4-1-1990 the learned District Judge stayed the proceedings under the Lunacy Act on the ground that a civil suit, challenging the validity and genuineness of the general power of attorney was pending between the parties. That order of the District Judge was challenged by the appellant by filing W.P. No,1438 of 1990, which was disposed of on 14-4-1991, with the consent of the parties and it was directed that the District Judge should have entertained the application for medical examination of the persons, who were alleged to be of unsound mind.
3. It appears that Ali Muhammad and Ghulam Haider through the appellant as their next friend filed another suit, in which they challenged the deed of gift dated 31-5-1990 in respect of land situate in Mauza Mokhal Sindhwan, Tehsil and District Gujranwala in favour of Fateh Ali. This Court, while deciding W.P. No,1438 of 1990, had directed that the two civil suits pending between the parties were also heard by the learned District Judge, Gujranwala, on the original side.
4. The learned District Judge, by his order dated 12-6-1991, proceeded to hold that Fateh Ali, Ghulam Haider and Ali Muhammad were not lunatics and as such the application under section 63 of the Lunacy Act was dismissed. As a consequence of this finding, the civil suits were also dismissed by the learned District Judge.
5. Syed Jamshed Ali Shah, Advocate for the appellant, in support of this appeal, has vehemently argued that the procedure adopted by the learned District Judge, while deciding the application under the Lunacy Act as also the civil suits is not countenanced by law besides being violative of the order passed by this Court in W.P. No,1438 of 1990 dated 14-4-1991.
6. Mr. CA. Rehman, Advocate for the respondents, on the other hand, is of the view that as the parties had themselves desired that the matter pending before the learned District Judge be decided on the basis of medical examination of the two insane persons, the dismissal of the application as also the civil suits was unexceptionable.
7. As already observed, W.P. No,1438 of 1990 was directed against the refusal of the learned District Judge to proceed with the application under the Lunacy Act on the ground that the matter was sub judice before the Civil Court. While disposing of that petition, this Court had observed as under:--- "In view of the statement of the learned counsel, the civil suit pending before Civil Judge, Gujranwala, may be withdrawn and shall be entrusted to the learned District Judge, Gujranwala, for trial along with application referred to above. Learned District Judge shall decide both the cases within next two months. Parties shall appear before the learned District Judge on 25-5-1991, who may also entertain application for the medical examination of two insane persons, namely, Ghulam Haider and Ali Muhammad. He will see to it that the medical examination of the insane people is also conducted within the period specified by this Court."
8. There is nothing in the aforesaid judgment, from which it can even be remotely inferred that this Court had directed that the application under the Lunacy Act as also the civil suits should be decided solely on the basis of medical examination of the two persons, who were alleged to be lunatics. On the other hand, there was a clear direction to decide all the three cases within two months in accordance with law. It needs no gainsaying that the proceedings under the Lunacy Act, 1912 are inquisitorial and not advisory in nature. The procedure, which a Court requires to follow in such cases, has been pointed out with great detail by this Court in Muhammad Amin Khan v.
General Public and others 1991 CLC 394 and Mst. Jamila Begum v. Awam-un-Nass and 15 others PLD 1978 Lah.
1376.
9. Furthermore, there is force in the contention of learned counsel for the appellant that the directions in the order of remand were not complied with by the learned District Judge. It is obvious from the perusal of the impugned order that the medical officer, who was asked to carry out the medical examination, had expressed his inability to give any final opinion on the mental condition of Ghulam Haider and All Muhammad and instead suggested that they be referred to the Medical Superintendent, Government Mental Hospital, Lahore. The Medical Superintendent Government Mental Hospital, Lahore, vide his letter dated 4-6-1991, tentatively observed that the persons aforesaid do not appear to be mentally ill except being deaf and dumb.. He suggested that for final opinion they may be referred to Board of Certification at Mental Hospital on regular basis.
10. It is unfortunate that the learned District Judge instead of following the suggestion of the Medical Superintendent proceeded to decide the matter in a hasty and slipshod manner on the basis of tentative view formed by the Medical Superintendent.
11. It is also to be noticed that although there were three persons, whose sanity was in dispute, yet only two of them, namely, Ghulam Haider and Ali Muhammad, were medically examined and no such examination was carried out at all with regard to the third person, namely, Fateh Ali. Learned counsel for the respondents attempted to argue that it was not necessary to do so as the direction of this Court in W.P. No,1438 of 1990 was only confined to the two persons. From a bare reading of the order passed by this Court in W.P. 1438 of 1990, it is quite obvious that the omission of the name of Fateh All was quite accidental and it did not in any manner furnish any justification for the learned District Judge to ignore his case from consideration. Learned counsel for the respondents has also pointed out that when the omission was brought to the notice of this Court by filing C.M.
No, 2646 of 1991, the same was corrected on 9-6-1991.
12. It follows from the above that the application under section 63 of the Lunacy Act, 1912, has not been decided in accordance with law by the learned District Judge. As regards the two civil suits, the same were dismissed without any trial on account of the finding of the learned District Judge in the lunacy matter. Consequently, the suits too deserve to be decided afresh by the learned District Judge.
13. In view of what has been stated above, these appeals are allowed and the impugned order is set aside with the result that the application under the Lunacy Act and the two civil suits pending between the parties shall be deemed to be pending before the learned District Judge, Gujranwala and shall be decided afresh in accordance with law.
No order as to costs.