2006 PLP 2848 (YLR)

MIAN SAQIB NISAR, J.

The instant Criminal Revision No.666 of 1992 as also Criminal Revision No.667 of 1992 are being disposed of together, as common questions of law and facts are involved in both these matters.

2. The land measuring 156 Kanals was admittedly owned by one Aziz Din, who allegedly appointed Nazeer Ahmad as his general attorney vides registered power of attorney dated 17-5-1980, empowering him for the sale of the said property. Nazeer Ahmad, on the basis of this power of attorney, out of the above land, sold land measuring 24 Kanals and 9 Marlas, in favour of Abdus Sattar, the marginal witness of power of attorney, who also happens to be his maternal uncle, through a registered sale-deed dated 22-7-1980 and through another sale-deed of even date, he transferred 128 Kanals and 17 Marlas of land in favour of his wife Mst. Wakeelan Bibi. Both these sales as also the power of attorney were challenged by Aziz Din through civil suit, instituted on 4-8-1980 through his wife Mst. Akbari Begum, as his next friend, with the averments that, Aziz Din is a person of unsound mind and suffers from the disability of suing himself; besides that on account of his disability and fraud etc., the power of attorney and the sales are invalid and, therefore, be declared annulled. In this suit, Nazeer Ahmad, Abdul Sattar and Mst. Wakeelan Bibi were arrayed as the defendants. However, before the written statement could be tiled, Aziz Din died and his wife and the present petitioner Ghulam Mustafa, his son, on 3-9-1980 were impleaded in his place as the plaintiff. Thereafter, written statement was filed by the original defendants of the case and also an application was moved by the subsequent purchaser Manzoor Ahmad the present respondent No.4 in this petition, who claimed that, he had pre-empted the sale made in favour of Abdus Sattar, which was decreed in his favour and had become owner on account of this, of the land treasuring 24 Kanals and 9 Marlas, therefore, has an interest and be impleaded. This impleadment was permitted and he too contested the matter. Issues were framed, parties were put to trial and the suit was allowed by the learned Civil Judge vide judgment and decree dated 25-3-1990. Nazeer Ahmad and Mst. Wakeelan Bibi filed an appeal, whereas Manzoor Ahmad also preferred an appeal. Both these appeals have been allowed by the learned Additional District Judge vide judgment and decree dated 15-4-1992, only on the ground that, the provisions of Order XXXII, rule 15, C.P.C., were not complied with and the inquiry into the question about the state of mind of Aziz Din, which was necessary for the competency of the suit on his behalf through the next friend was not conducted by the Court, resultantly; the plaint was rejected under Order VII, rule 11, C.P.C. Hence these revision petitions. ???????????

3. Learned counsel for the petitioner by relying upon Sultan and others v. Nazar Sultan (PLD 1993 Lahore 232), has argued that, in such circumstances, the plaint could not have been rejected. It is submitted that, the inquiry was not pre-requisite for entertaining the plaint and it is the duty of the parties to prove their case at the trial about the mental condition of Aziz Din; thus, it was even not obligatory for the Court to hold an inquiry, because this was only required in the proceedings under the Lunacy Act.

4. Confronted with the above, learned counsel for the respondents by relying upon the judgments reported as Kanwal Ram v. Bhawani Ram and another (Civil Judgments No. 13, March, 1896 page-33), Munshi Abdul Gani and another v. Protiva Rani Devi and others (PLD 1952 Dacca 450) and Maung Kya Yan and another v. Maung Tha (AIR 1936 Rangoon 121), has argued that, it is the duty of the Court to hold an inquiry about the mental state of a plaintiff, if the suit has been filed through a next friend on the reason that, such plaintiff is of unsound mind/lunatic; having lapsed in this behalf, the suit was incompetent, which reason also vitiated the judgment and decree of the trial Court as well.

5. Heard. I am afraid, that the contention of the learned counsel for the respondents has no force, neither the above judgments have any direct application to the facts and circumstances. In the instant case, the respondents have never taken up the plea in the written statement and even during the trial, that the case/trial cannot proceed until and unless the inquiry is held in terms of section 32, rule 15, C.P.C. Rather, there is a specific issue No.4, which reads as follows:-- "Whether the power of attorney dated 17-5-1980 is illegal and liable to be cancelled for the reason given in the plaint, if so, what is its effect on the subsequent transaction?" From the above, it is clear that the question about the mental state of Aziz Din was one of the disputed propositions between the parties on which, they led evidence and according to the findings of the learned trial Court, Aziz Din was declared to be a person of unsound mind and resultantly, to my mind, in the peculiar facts and circumstances of the case, this meets the requirement of Order XXXII, rule 15, C.P.C., especially in the situation when the respondents/defendants never sought the inquiry at the appropriate point of time and thus, are estopped by their own conduct.

6. Moreover, the most important aspect of the case in that, before the written statement could be filed by the original defendants, Aziz Din died and his legal heirs were impleaded as the plaintiffs. To my mind, due to this event, the question of the competency of this suit and the holding of inquiry in terms of Order XXXII, rule 15, C.P.C. subsided, as the legal heirs could have either continued the cause or with the permission of the Court, withdrawn the same and initiated the case afresh in their own rights as the successors of the deceased. Resultantly, the learned Court of appeal, on account of the lack of inquiry, could not have rejected the plaint, rather should have decided the matter on merits, which has not been so done.

7. In the light of above, the present revision petitions are liable to be allowed; the judgment and decree of the Court of appeal to be set aside and the case to be remanded to the Appellate Court with the direction to decide the matter afresh. However, the learned counsel for the petitioner, at this stage, has apprised me that, by virtue of the order dated 11-4-1993 earlier passed by this Court, C.R. No.666 of 1992 was allowed on the basis of the compromise deed (Exh.A.1), which was effected between the petitioner, Nazir Ahmad and Mst. Wakeelan; the judgment and decree of the Court of appeal was se' aside and that of the trial Court was restored. But the contesting respondent No.4 thereafter, moved an application under section 12(2) C.P.C., challenging the said judgment and decree on the ground that, he or the legal heirs of Abdus Sattar were not party to this compromise, resultantly, the said compromise and the order dated 11-4-1993 affecting his rights, cannot be sustained. This application was accepted vide order dated 18-2-2004 and it was held:-- "Obviously, this situation squarely falls within the purview of section 12(2), C.P.C., and the order dated 11-4-1993, cannot be sustained, which is hereby set aside; it is held that, the disposal of the revision petition, by virtue of the aforesaid order, shall only be to the extent of the sale, made by Nazir Ahmad in favour of Mst. Wakeelan; and shall have no effect on the rights of Abdul Sattar. To this extent, the revision petition shall be deemed pending and shall be heard on merits." Consequently, in view of the above, as the sale in favour of Mst. Wakeelan Bibi has already been set aside through the aforesaid order, therefore, the Court of appeal, on remand, shall only decide the case on merits vis-a-vis to sale made by Nazir Ahamd in favour of Abdus Sattar, who has further sold the property measuring 24 Kanals and 9 Marlas in favour of respondent No.4. Accordingly, these petitions are disposed of. M.I./G-23/L???? ????????????????????????? Case remanded.