1991CLC394 (PLP)

Ch. Waheed A. Saleem and Syed Hamid Ali Shah for Respondents Nos.2 to

5. Date of hearing: 14th November, 1990. On 16‑1‑1989, Muhammad Amin Khan appellant herein filed a petition for inquisition under section 62 of the Lunacy Act, 1912 alleging that Abdul Ghani son of Muhammad Akram Khan was of unsound mind and incapable of managing himself, his affairs and his property. The petition was contested by respondents Nos.2 to

4. On an application filed by Mst. Farida Khanum, respondent No.5, she was impleaded as a respondent. The learned Additional District Judge after framing the following issues, recorded the evidence of the parties and dismissed the petition on 6‑7‑1989:‑ (1) Whether Abdul Ghani is man of unsound mind and is unable to manage his property? If so, who can serve as a manager for the property of Abdul Ghani? OPP. (2) Whether the suit is not maintainable in view of preliminary objections Nos.l, 2 and 4? OPD (3) Whether the suit is bad for non‑joinder of necessary parties? OPD (4) Relief. It was held by the learned Addl. District Judge, that the appellant had failed to produce any medical evidence to show that Abdul Ghani indeed was a person of unsound mind or an idiot. According to the learned Addl. District Judge mere oral evidence produced by the appellant was insufficient to prove this fact. This order of the Addl. District Judge has been assailed by the appellant before this Court by filing the present appeal under section 83 of the Lunacy Act, 1912.

2. Mr. Amir Alam Khan, learned counsel for the appellant has relied upon the decision of this Court in Mst. Jam ila Begum v. Awam‑un‑Nass and 15 others (P L D 1978 Lah. 1376) to contend that the Additional District Judge has erred in law in dismissing the application on the ground of insufficient evidence and in such like matters, he should have examined Abdul Ghani to find out as to whether he indeed was a lunatic or to have directed his medical examination. The learned counsel has also relied upon a judgment of Dacca High Court in Munshi Abdul Ghani and another v. Protiva Rani Devi and others (P L D 1952 Dacca 450) Mr. Waheed A. Saleem, Advocate and Syed Hamid Ali Shah, Advocate for respondents Nos.2 to 5 contended that no exception can be taken to the order passed by the Addl. District Judge. They relied upon Habib Ullah Mian v. Golam Rehman (P L D 1960 Dacca 958) and Mst. Zainab Bibi v. Ghulam Nabi and another (P L D 1964 (W.P) Baghdad‑ul‑Jadid 1).

3. From a perusal of the judgment of the Addl. District Judge, it is clear that he has misconstrued the scope of proceedings under section 62 of the Lunacy Act, 1912. This section itself indicates that the proceedings to be held by the Court are not adversary but inquisitorial. According to Ballentine's Law Dictionary, 3rd Edition at page 634, "inquisitorial power" means, "Investigating authority, the power of an administrative agency to inspect accounts, records etc. or to require the disclosure of information through the testimony of witnesses or the production of documents. Similarly in Black's Law Dictionary, 5th Edition, "inquisition" has been defined as: "An inquiry or inquest particularly, an investigation of certain facts made by a sheriff, together with a jury impaneled by him for the. purpose. The instrument of writing on which their decision is made is also called an inquisition. In its broadest sense, "inquisition," includes any judicial inquiry." It is thus obvious that proceedings to be held by the District Court under the Lunacy Act are in the nature of inquiry where the Court is required to find out as to whether a particular person is a lunatic within the meaning of Lunacy Act, 1912. While exercising this power the object for which the Lunacy Act was promulgated, namely, the protection of the lunatics, cannot be lost sight of. In Mst. Jamila Begum's case supra, it was observed by this Court as under:‑ "...The learned District Judge has treated this case as that of a dispute between party and party who are thereby thrown into the vortex of litigation, the intention of one party being merely to hit the other, or to avenge itself. This is not the object of the Lunacy Act, This Act confers upon the Courts the powers of pater patriae as a father over his children. The Act deals with the care of lunatics and idiots in the same manner as the Guardians and Wards Act provides for the inherent prerogative of the Courts acting as a prudent natural parent of the infant "

4. The object of inquisition is to find out whether a person is, in fact, of unsound mind or idiot within the meaning of the Act and if it be so found the Court is required to make arrangements for the custody of the person and the property of the lunatic. The Court in such a case acts in locus parentis and its effort is not to find out as to which of the party before it, is correct but what is of paramount importance while exercising this jurisdiction is to keep the welfare of the lunatic in mind. In the present case, unfortunately, no effort was made by the Addl. District Judge to find out for himself whether Abdul Ghani was lunatic but he proceeded to dismiss the petition on the ground of insufficiency of evidence, particularly the failure to produce medical evidence. This approach of the Addl. District Judge is clearly erroneous. If he was of the view that the matter could not be decided without medical evidence and indeed it should not have been decided, he should have himself directed the medical examination of Abdul Ghani. It appears that towards the end of the proceedings, an application was filed by the appellant praying that Abdul Ghani be got medically examined and also that he be summoned and examined by the Court itself. Both the prayers were unfortunately refused by the Addl. District Judge on 22‑6‑1989 on the ground that the application had been filed at a belated stage. This refusal, to say the least, was wholly unjustified. In law, the Additional District Judge was under an obligation to have examined the alleged lunatic by putting questions to him with a view to arrive at a just conclusion regarding his mental condition. In Mst. Jamila Begum v. Awam un‑Nass and 15 others (P L D 1978 Lah. 1376) Aftab Hussain, J. (as he then was) observed that:‑ " ....The learned District Judge should have put homely questions keeping in view the feeblemindedness and weak intellect of Abdus Salam and should have examined him in Curt. He could also have been examined on his dietary habits as well as on other points, how he was treated by others, how much land he had, who cultivated it, whether he could plough his land, whether he had any complaint to make of his sister, brother‑in‑law and others, whether he had a wife or had a child. In fact a number of questions which can be put to a child of a few years of age could be put to him. The object of the Act is not thus fulfilled by this perfunctory examination

5. Though it is correct that as held in the cases relied upon by the learned counsel for the respondents ~namely, Habib Ullah Mian v. Gofam Rehman (P L D 1960 Dacca 958), Mst. Zainab Bibi v. Ghulam Nabi and another (P L D 1964 (W.P.) Baghdad‑ul‑Jadid 1) and also in Jan Muhammad v. Nizam Din and others (A I R 1926 Lah. 586), the Court cannot base its decision only on its personal observations, but as held in Mst. Jamila Begum's case supra, the examination of the alleged lunatic by the Court could certainly have been helpful in resolution of the controversy and its just decision. The reliance of the learned counsel for the appellant on Munshi Abdul Ghani and another v. Protiva Rani Devi and others (P L D 1952 Dacca 450) is of no help as that case concerns itself with the provisions of Order 32, rule 15, C.P.C. and not the Lunacy Act, 1912.

6. The learned counsel for the respondents submitted that as the wife oft Abdul Ghani has not been made a party, the matter could not proceed in her; absence. Mr. Amir Alam Khan, Advocate, however, stated that Abdul Ghani was unmarried. Be that as it may, it would be in accord with law and in the interest of justice that Mst. Iftikhar Fatima, who according to the learned counsel for the respondents is wife of Abdul Ghani, is impleaded as a party. As a result of above discussion, this appeal is accepted, the impugned order is set aside and the case is remanded to the District Judge, Okara for decision afresh keeping in vi~ the observations made above. No order as to costs. A.A./M‑2517/L Case remanded.