Mst:Fatima vs Abdul Qadir etc

2010 C L C 1727

[Peshawar]

B ef o r e Mazhar Alam Khan Miankhel, J

Mst. FATIMA---Petitioner

Versus

ABDUL QADIR alias SUHBAT and 8 others ---Respondents

Civil Review No.10 of 2010 in Civil Revision No.1288 of 2009, decided on 26th April, Civil Procedure Code (V of 1908)---

----S. 114 & O.XLVII, R.1---Mental Health Ordinance (VIII of 2001), S.32---Review--- Appointment of guardian ad litem of an insane person---Grievance of the petitioner was that an insane person was appointed as guardian ad litem of another insane person, which was a justified reason, and as such necessary correction in that regard was made---Such correction had no adverse effect on the merits and decree in the case and purpose and need behind the correction was just to set the record of the case straight---Such correction could be made in the record as both the persons remained properly represented throughout the proceedings and no prejudice was caused to their interest---Defect in the procedure for appointment of guardian ad litem did not vitiate the decree, unless any prejudice was caused to the interest of minor, a person of unsound mind as a result thereof---Absence of a formal order of appointment of guardian ad litem would not be fatal to the decree, if no prejudice had been caused to the minor-- -To secure the interest and rights of insane person, there must be a legally appointed guardian under S.32 of Mental Health Ordinance, 2001---Counsel for the petitioner was unable to point

out any error apparent on the face of the record and nothing was brought on the record which could have reflected that some important matter or evidence came into his knowledge later on which was not in his knowledge at the time of judgment to be reviewed---High Court ordered accordingly.

Murtaza Khan Durrani for Petitioner.

Saeedullah Khalil for Respondents.

Date of hearing: 26th April, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Through the instant review petition, petitioner seeks review of the judgment in C.R. No.1288 of 2009. Notice to the respondent in this regard was issued.

2.Learned counsel for the parties were heard at length.

3.Learned counsel for the petitioner in review was unable to point out any error apparent on the face of the record and similarly nothing of the sort was brought on the record which could have reflected that some important matter or evidence came into his knowledge later on which was not in his knowledge at the time of judgment to be reviewed. However, learned counsel for the petitioner in review submitted that as no proceedings in the case are sub judice, so the appointment of reader of the Court as guardian ad litem of Ali Akbar, respondent No.2, in revision was not in accordance with law.

4.Proceedings in the case in the shape of final decree have been culminated between the parties

and the only grievance of the petitioner in main revision was that an insane person i.e. respondent No.2 was appointed as guardian ad litem of respondent No.9, another insane person, which was a justified reason and as such necessary correction in this regard was also made.

5.Needless to say that such correction has no adverse effect on merits and decree in the case and purpose and need behind the same was just to set the record of the case straight. Such corrections can be made in the record as both the persons named above remained properly represented throughout the proceedings and no prejudice was caused to their interest. A defect in the procedure for appointment of guardian ad litem does not vitiate the decree unless any prejudice is caused to the interest of minor, a person of unsound mind as a result thereof and similarly in absence of a formal order of appointment of guardian-ad-litem would also not be fatal to the decree if no prejudice has resulted to the minor. Reliance in this regard can well be placed on the cases of Faiz Muhammad v. Shaista Khan and another PLJ 1985 Pesh. 5, Mrs. Aneesa Begum and another v. Mrs. Aminuddin and 5 others 1993 CLC 1999 and WAPDA through Chairman, Lahore v. Muhammad Sanaullah Khan 2003 CLC 737. Facts and circumstances of the present case also reflect the same. So such corrections were rightly ordered.

6.Record of the case would reveal that respondents Nos.2 and 9 in main revision petition are permanently insane persons, so to secure the interest and rights of the above said persons, the parties to the suit are directed that there must be )a legally appointed guardian under section 32 of Mental Health Ordinance, 2001 as the law previously dealing with the matter i.e. the Lunacy Act, 1912 has since been repealed. This observation is only made just to save that interest of the above said two insane persons as during the course of hearing, it was smelled that there is a chance of misappropriation of the properties of the above said persons. So, in this view of the matter, this review petition is disposed of accordingly.

H.B.T./244/P Order accordingl