2018 PLP 731 (YLR)

MUDASSIR KHALID ABBASI, J.

Through this constitutional petition, petitioner has challenged the legality of orders dated 15.10.2011 and 19.05.2012, passed by respondents Nos. 2 and 3 respectively.

2. Brief facts of the case are that respondent No.1 filed a suit for recovery of dowry articles and ornaments, etc. against the petitioner before respondent No.2/ learned Judge Family Court, Multan which was contested by the petitioner and issues were framed. During the pendency of the suit, petitioner filed an application for amendment in the written statement which was dismissed vide impugned order dated 15.10.2011. Feeling aggrieved, petitioner preferred a revision against the said order before respondent No.3/learned Additional District Judge, Multan, which also met with the same fate vide impugned judgment dated 19.05.2012.

3. Learned counsel for the petitioner contends that impugned order and judgment of both the courts below are against the law and facts. Further contends that requisite amendment is necessary for the just decision whereas both the courts below have overlooked this aspect of the case. Argued that petitioner earlier filed a W.P. No. 5733 of 2011 for the constitution of medical board to examine that as to whether petitioner is suffering from schizophrenia or not, which was dismissed vide order dated 19.05.2011. Further argued that proposed amendment does not prejudice the case of respondent No.1.

4. Conversely learned counsel for respondent No.1 has supported impugned order/judgment on the ground that same have been passed in accordance with law, therefore, no interference is called for. Further argued that petitioner has filed this petition, just to prolong the proceedings pending before the courts below. Moreover, there is no illegality or infirmity in the impugned order and judgment passed by the courts below.

5. Arguments heard. Record perused.

6. In the earlier round of litigation petitioner, defending a family suit for maintenance of respondent No.1 and minor children filed two applications one to sine-die adjourn the suit on the ground that the petitioner is suffering from schizophrenia (a psychotic disease) and is under medication influence, therefore, unable to give evidence and another application for medical examination through Medical Board. Both these applications were dismissed through separate orders dated 23.12.2010 and 25.04.2011, appeal filed by-petitioner met with the same fate. Both these orders were challenged in W.P. No.5733/2010. This constitutional petition was dismissed vide order dated 19.05.2011. On 27.05.2011 petitioner moved an application for amendment in the written statement to the effect that being patient of mental disorder, petitioner is unable to behave in a normal course and the suit is liable to be dismissed. Proposed amendment is reproduced as under:-- This application was dismissed vide impugned order dated 15.10.2011 which has been impugned before this Court in the instant constitutional petition.

7. Although in terms of Section 17 of the Family Courts Act, 1964 provisions of Civil Procedure Code shall not apply to the proceedings before the Family Court, however, for the sake of guidance it is observed that the law developed by the superior courts, with regard to the amendment in pleadings, with particular reference to written statement, is that such amendment in the written statement should not have been allowed, altering the complexion of the defence raised in the written statement. Reliance is placed on "Syed Muhammad Ali and others v. Syed Dabir Ali and others" (2016 SCMR 2164) and "Ghulam Haider v. Muhammad Ayub" (2001 SCMR 133).

8. It is pertinent to point out that in such eventualities, as asserted by the petitioner, legal course would be to invoke the provisions of the Mental Health Ordinance, 2001, dealing with the management and affairs of persons suffering from mental disorder section 32 of the Act ibid provides as under:-- "

32. Appointment of guardian.

Where a mentally disordered person is incapable of taking care of himself, the Court may appoint any suitable person to be his guardian, or order him to be looked after in a psychiatric facility and order for his maintenance."

9. I do not find any reason to allow the proposed amendment sought in the written statement narrated/reproduced above, as it would change the entire complexion of the plea taken by the petitioner/defendant in written statement filed earlier during the trial. For the forgoing reasons, this petition being devoid of any force, is dismissed with no order as to cost. MQ/R-14/L Petition dismissed.