2003 PLP 1724 (MLD)

2. Brief facts of the appeal are that the appellants, namely, Shaikh Abdul Salam and Mst. Abida Salam filed an application under section 62 of the Lunacy Act (IV of 1912) being the real father and mother of their son, namely, Shahrukh Salam, aged 28 years, who was stated to be unsound mind and incapable of managing himself and affairs in property. The details of the property of the lunatic have been given in Para 4 of the petition filed before the District Judge. According to the appellants, there is no other close relative who may take interest in the welfare of the lunatic.

3. On the presentation of the petition, the learned District Judge, Lahore, took cognizance and summoned the lunatic Shahrukh Salam to appear before the Court on 7-6-1999, and on his appearance on the above date the matter was referred for his medical examination to Dr. M. Rashid Chaudhry, expert in the affairs, who was posted in the Fountain House, Lahore. The report of the Expert was produced by the petitioner. The statement of the Expert was recorded through Mr. Shamim-ur -Rehman, Advocate/Local Commissioner. Service on public-at-large was effected through the daily 'Nawai Waqat'.

4. In support of their petition, appellants Sheikh Abdus Salam and Mst. Abida Salam appeared as P.W.1 and P.W.2 respectively. Mr. Shamim-ur-Rehman, Advocate/Local Commissioner was produced as P.W.3. The learned District Judge dismissed the petition of the appellants on the ground that: "The statement of the expert was got recorded through the Local Commission, but quite negligently the report of the expert and the statement of the expert got recorded through the Local Commission could not be got exhibited through the statement of P.W.3 Mr. Shamim-ur-Rehman, Advocate nor the same were produced in the statement of the learned counsel for petitioner. Meaning thereby, there is no legal evidence to believe that Shahrukh Salam is actually lunatic and there is need for appointment of guardian for his person and manager for his

5. The learned counsel for the appellants argued that the learned District Judge has taken very strict view of the procedure while non suiting the appellants who were real father and mother of the lunatic. According to him, the proceedings under the Lunacy Act is of parental nature. The application could have not been dismissed simply because the report of the Expert and the statement of the Expert got recorded through the Local Commission could not be got exhibited through the statement of P.W.3 Mr. Shamim-ur-Rehman, Advocate/Local

6. There is no dispute about the fact that appellants Sheikh Abdul Salam and Mst. Abida Salam are the father and mother of lunatic namely Shahrukh Salam and that the proceedings under section 62 of the Lunacy Act of 1912 are of parental nature. Nobody has appeared before the District Judge in spite of proclamation published in the Newspaper, and even before this Court in spite of the fact that service of public-at -large at the expenses of the appellants through citation in the Newspaper Daily 'The Jang' was effected regarding proceedings before this Court. There is no doubt of the fact that the Local Commission recorded statement of the Expert and submitted his report. The report dated 16-6-1999 by Prof. Dr. Muhammad Rashid Chaudhry is on, the file. According to him, he has examined Mr. Shahrukh Salam son of Abdus Salam in pursuance of Letter No.123 dated 15-6-1999 of the District and Sessions Judge, Lahore. The report reads as follows:-- "Shahrukh is suffering from Epilepsy with Mental Deterioration. In my opinion, he is not capable of looking after himself and his affairs." The statement of Dr. Muhammad Rashid Chaudhry recorded by the Local Commission is also on the record. Sh. Abdus Salam father, and Mst. Abida Salam mother of the lunatic have appeared as P.Ws.1 and

2. There is application bearing Civil Miscellaneous No.1-C of 2000 under order 41, Rule 27, C.P.C. for production of additional evidence. Since the learned District Judge has taken very strict view for negligence of the learned counsel for the appellants, who did not produce the report dated 16-6-1999 of Dr. Prof. Muhammad Rashid Chaudhry whom the matter was referred by the District Judge and he could get it exhibited was no ground to non-suit the appellants. I am inclined to remand the case to the learned District Judge, Lahore to decide the petition under section 62 of the Lunacy Act No.IV of 1912, after considering the report dated 16-6-1999 of Prof. Dr. Muhammad Rashid Chaudhry, his statement recorded by the Local Commission, report of the Local Commission and the statement of the appellants Sheikh Abdus Salam and Mst. Abida Salam, who appeared as P.Ws.I and 2 and statement of Mr. Shamim-ur-Rehman, Advocate/Local Commissioner P.W.3. Thus, Civil Miscellaneous No.1-C of .2000 has become infructuous. The District Judge in post-remand proceedings may examine the application and the documents attached with this application. For what has been discussed above, this appeal is accepted, order dated 3-2-2000 of the District Judge, Lahore dismissing the petition filed by the appellants under section 62 of the Lucancy Act, 1912, is set aside and the case is remanded to the District Judge for fresh decision on the application filed by the appellants on merits. Paries to bear their own costs. Since the application was pending before District Judge since 1999 and the jurisdiction of the District Judge is of parental nature, it is directed that the petition be decided within two months. H.B.T./A-826/L Case remanded.