P L D 2006 Lahore 654 (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.

This Civil Revision is directed against the concurrent judgments of rejection of plaint by the learned trial Court on 8-1-2005 as well as dismissal of appeal of the petitioner by the learned Additional District Judge vide order dated 20-10-2005:

2. The facts in brief are that petitioner who is son of Sh. Ehsan Ghani respondent No.1 and brother of Mazher Ehsan respondent No.2 filed a suit before the learned trial Court seeking setting aside of gift made by respondent No.1 in favour of respondent No.2 through Gift Deed dated 20-8-2003 and incorporated in the record of L.D.A./respondent No.3 regarding Property No.281-Shadman/l, Lahore. The grounds for challenging the said gift, inter alia were that Sheikh Ehsan Ghani respondent No.1 being a person with mental disorder was not in a position to make the gift and further that the gift was void having been made in favour of respondent No.2 by depriving the petitioner and that under the Muslim Law such gift was prohibited. The respondent No.1 in the said suit filed application under Order VII, Rule 11, C.P.C. seeking rejection of the plaint on the ground that he was not suffering from any mental infirmity and that he made the gift in favour of respondent No.2 with his free consent, will and while in full senses, hence the plaint was liable to be rejected. The learned trial Court on receipt or the reply from the petitioners summoned respondent No.1 in court and recorded his better statement. The learned trial Court after recording the better statement of respondent No.1 observed that said defendant/respondent No.1 was physically and mentally healthy as he could understand the questions of the Court and was thus in no way an abnormal person. As such the learned trial Court after having satisfied itself accepted the application of defendant/respondent No.1 and rejected the plaint of the petitioners vide order dated 8-1-2005 and the appeal filed by the petitioner against rejection of his plaint, was also dismissed by the learned Additional District Judge vide order dated 20-10-2005, hence this Civil Revision.

3. It is argued by learned counsel for the petitioners that there was no occasion for the learned trial Court to have rejected the plaint by taking into consideration the material extraneous to the plaint; further that there was no stage for the learned trial Court to have summoned and examined the respondent No.1 without framing of issues and allowing the parties to produce their evidence.

4. On the other hand, learned counsel for the respondents have supported the orders of two courts below by arguing that civil court was not the competent forum to issue such a declaration and that for that matter the only forum available to the petitioners was an application under Mental Health Ordinance, 2001, therefore, the plaint was rightly rejected by the learned trial Court and appeal of the petitioners was also correctly dismissed by the learned Additional District Judge.

5. The arguments of learned counsel for the parties have been considered.

6. There is no cavil to the proposition that the only forum competent to declare a person as "mentally disordered person" is one available under Mental Health Ordinance, 2001 and the same has over riding effect and no other court could determine or for that matter grant any declaration, hence the suit filed by the petitioners to this extent was barred by law. However, it has been argued by learned counsel for the petitioners that the learned trial Court while rejecting the plaint also recorded certain findings on the merits of the case. In view of the above, this Civil Revision is disposed with the direction that the order of rejection plaint on account of want of jurisdiction by the civil court and the order dismissing appeal of the petitioners against the rejection of their plaint, are maintained to this extent and the petitioner ,may if so advised, approach the competent forum for seeking such a declaration. However, the remaining findings recorded by the learned trial Court with regard to the legality/vires of the gift or competence of respondent No.1 to make gift in such--like situation, cannot sustain being unjustifiable in the facts and circumstances of the case, as such are set aside. The question of legal validity or vires of such gift can only be answered after determination of mental state of affairs of respondents Nos.l by the competent forum. Disposed of accordingly. F.B./A-113/L?????????????????????????????????????????????????????????????????????????????????????? Petition disposed of,