1989 PLP 833 (CLC)

(1) Whether the plaintiff is of unsound mind and the suit is liable to dismissal in view of preliminary objection No.l? OPD. (2) Whether the valuation of the suit is incorrect? If so, what is the correct valuation? OPD. (3) Whether the court‑fee stamp was purchased by some unauthorised person? If so, its effect? OPD. (4) Relief. The learned trial Court decided issue No.l against the plaintiff and the suit was dismissed. The learned District Judge, Rahimyar Khan, did not find favour with the arguments of the learned counsel for the appellant and dismissed his appeal.

4. Only issue No.l has been mooted before me. It is be determined whether or not Abdul Majeed plaintiff is lunatic, mentally, retarded or cannot protect his interest. Then it is to be seen what is the effect of the power of attorney which he executed in favour of one Abdul Aziz. Finally, it is to be adjudicated whether the suit could be dismissed in case Abdul Majeed was found to be of an unsound mind and as not able to execute a valid power of attorney. In this context, the respondents have examined Dr. Muhammad Ali (D.YV.1) Medical Superintendent, Civil Hospital, Rahimyar Khan, who kept the plaintiff under observation on the order of the Court in his Hospital from 14‑7‑1975 to 24‑7‑1975. He observed that he could dine and answer the call of nature with the help of his relatives and could respond to ordinarily questions properly. He could not identify the coins showed to him nor could he identify the denomination of the currency notes. The plaintiff is suffering from epilepsy and is a feeble sighted person. Dr. Muhammad Ali has opined that he is mentally infirm and is not able to understand the litigation.

5. Muhammad Ishaq (D.W.2) respondent has stated that Abdul Majeed was a mentally imbecile person and the plaint had been filed with fake thumb‑marks. He has added that the plaintiff cannot deposit money and the suit had been filed at the instance of Aziz his maternal uncle.

6. Abdul Majeed was examined as P.W.1 who has stated that he had lodged a pre‑emption suit as the land had been sold by his father. It may be noted that the land was sold by Fazal‑ud‑Din, his uncle and not by his father. He has stated that he guarded the cattle of his maternal‑uncle and had given the power of attorney to Abdul Aziz and had lodged the suit himself. He has added that he could not dictate the contents for the execution of a power of attorney as it was got dictated by his maternal‑uncle and he posed ignorance about the fact as to wherefrom, the stamp was purchased and who had written the same. He did not obtain papers from the Patwari and has stated that the land in dispute was sold for Rs.4,

500. Although he had stated in the plaint that he was ready to pay Rs.15,

500. He has stated that his maternal‑uncle had expended money on his litigation and he did not give any amount to him. Again said, that this amount was paid by his father to his uncle.

7. From the evidence, it is apparent that Abdul Majeed is a man of weak intellect and he cannot sue or defend litigation himself. Both the learned counsel for the parties have conceded this fact that the plaintiff is a man of weak intellect and could not pursue the proceedings himself.

8. The learned counsel for the respondents has referred to section 183 of the Contract Act, 1872 which shows that only a person of sound mind who has attained the age of majority can employ his agent. According to the statement of the plaintiff, he could not dictate the contents of the power of attorney. A person who is of a weak intellect is not able to execute any power of attorney which A does not even contain that the suit of pre‑emption is to be prosecuted by the agent. In that event, the provisions of Order XXXII, Rules 2 and 15 of the C.P.C should have been invoked. Order XXXII, Rule 15, C . P. C . may be reproduced for the facility of reference:‑ "0.32 (15). Application of rules to persons of unsound mind.‑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 interest when suing or being sued."

9. It shows that the provisions contained in Rules 1 to 14 are applicable to persons of unsound mind or who are mentally infirm or are incapable of protecting their interest when suing or being sued. The plaintiff is incapable of protecting his interest and is mentally infirm. In accordance with Order XXXII, Rule 2 of the C.P.C. in such a case when the plaintiff is not represented by his next friend then the defendant can apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. As has been held in Ebrahim Fikree and others Taufiq Fikree and others 1987 CLC Kar. 2224 The expression "taken off B the file" occurring in Rule 2, Order XXXI1 of the C.P.C. was not synonymous to rejection of the plaint or dismissal of the suit and such expression was taken to mean that proceedings would be stayed. It has been added in this precedent that where a plaintiff of unsound mind sues without a next friend and an objection is taken by the defendant or such admissions are made in plaint, Court would be competent to stay the proceedings and require plaintiff to sue through a next friend and direct him to take necessary steps as provided under law. The same principle was enunciated earlier in Ali Ahmad v. Said Mian and another AIR 1924 Lab. 188(1) and (Pupooth alias Komancheri) Rarichan alias Ramanunni Kurupv.'Vayisravanth Manakkal Raman and another AIR 1923 Madras 553.

10. The plaintiff was not in a position to execute a power of attorney and wher the Court found that he was mentally infirm, it was the duty of the Court to appoint his next friend so at the interest of a mentally retarded person could be safeguarded who was incapable of watching his interest. The plaint could not be rejected. The point taken by the learned District Judge, Rahimyar Khan, that the limitation for the institution of the suit has expired and the point of limitation proves fatal to this case, it may be noted that Abdul Majeed is a party on the file and if his next friend is appointed, the suit will not be hit by the point of limitation. In Muhammadl Ismail, etc. v. Muhammad Sarwar etc. 1980 SCMR 254 a guardian and item was appointed at a later stage and it was held that the provisions of section 22 (Limitation Act) were not attracted to such a situation.

11. In this manner, the plaintiff being mentally infirm deserves to be represented by a next friend at any stage of the suit. The fact D that he has not thumb‑‑marked the plaint himself nor could he execute a power of attorney in favour of Abdul Aziz does not prove fatal to his case because Abdul Majeed or his next friend could be called upon to sign or thumb‑mark the plaint subsequently. ‑

12. In the circumstances. I accept this appeal and set aside the impugned judgments and decrees and remand this case to the learned 1 trial Court with a direction that the next friend of the plaintiff be appointed who may be asked to sign or thumb‑mark the plaint and then the suit should be decided afresh according to law. I make no order as to costs.

13. The parties are directed to appear before the learned trial Court on 28‑3‑1988. A.A./A‑538/L case remanded.