08/04/2024
Supreme Court of Pakistan
Malik Arshad Hussain Awan v. M/s United Bank Limited
Civil Petition No. 1393-L of 2020
Questions
1) What is difference between guardian appointed under Mental Health Ordinance 2001 and under order ###II of Civil Code of Procedure 1908.
What is difference between “Guardian ad Litem” and Guardian.
2) Can a person represent the interest of minor or insane as a guardian and Next Friend in a lawsuit by filing an application under order ###II of CPC, though he has not been appointed as a guardian by the competent Court under MHO 2001.
3) What is scope of order ###II CPC and MHO 2001.
Issue:
The petitioner assailed the order before the Supreme Court passed by the High Court where it was held that petitioner’s brother had to be first adjudged as mentally disordered by the Court of Protection under the provisions of the (Punjab) Mental Health Ordinance, 20011 before the petitioner could be entitled to file an application under Order ###II, CPC, before the Banking Court
Held:
Two Categories under Order ###II:
Rule 15 of Order ###II of the Code of Civil Procedure, 1908 provides that Rules 1 to 14 of Order ###II shall apply to:
(i) persons adjudged to be of unsound mind and
(ii) 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 interests when suing or being sued.
The said Rule acknowledges two categories of persons of unsound mind:
1) one who is already adjudged by a court of competent authority as a person of unsound mind;
2) and the other, who is not so adjudged but the court itself on inquiry finds that the person is of unsound mind.
In both cases, the court is to appoint a guardian for the Suit for such a person.
Who may appoint as a guardian:
In the first category, in view of the provisions of Rule 4(2) of Order ###II of the Code of Civil Procedure, 1908 the court is to ordinarily appoint the same person as guardian for the suit who has been appointed the guardian under the Mental Health Ordinance, 2001;
while in the second, the court may appoint any suitable person who has no interest against the person of unsound mind.
In the second category, the court cannot decline to appoint the guardian for the suit merely for the reason that the defendant has not been so adjudged under the Mental Health Ordinance, 2001 by the competent authority.
Difference Between Guardian and Guardian ad Litem:
1) Guardian for the suit is also called as “Guardian ad Litem”; The Latin term “ad litem” means “for the lawsuit”. Thus, guardian for the suit is appointed by a court specifically for the duration of legal proceedings and his role is temporary and limited to the particular lawsuit or legal matter.
2) A Guardian of the person or property of a minor or a person of unsound mind, on the Other hand, is a person legally appointed to manage all the affairs of another Person. Such a guardian has the authority to make decisions on behalf of the said Person in various aspects of life, including financial, medical, and personal Matters.
Scope of MHO 2001:
The scope of the Mental Health Ordinance, 2001 is different and broader when compared to that of Order ###II of the Code of Civil Procedure, 1908. It Provides for care and treatment of mentally disordered persons, for the management of their properties and their affairs and to encourage community care of such persons. However, the role of the guardian appointed under Order ###II of CPC in any case is limited only to represent the minor or mentally incapable person before the Court.
Link: https://www.supremecourt.gov.pk/downloads_judgements/c.p._3472_2023.pdff
