livelawpk.com - Banking Court can appoint a Guardian for the Suit

The Banking Court can appoint a Guardian for the Suit, under Rules 3 and 15 of Order XXXII of the CPC --- Supreme Court of Pakistan

8 months, 3 weeks
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Islamabad 29-03-2024: The Civil Petition 1393-L of 2020 was heard by three Members Bench consisting of Honourable Judges Mr. Justice Syed Mansoor Ali Shah, Mr. Justice Jamal Khan Mandokhail and Mr. Justice Athar Minallah observed that the question involved in the instant petition is whether a Banking Court can appoint a guardian for the suit, under Rules 3 and 15 of Order XXXII of the CPC, for a defendant who by reason of “unsoundness of mind” or “mental infirmity” is incapable of protecting his interests, or whether the defendant has to be first adjudged to be a person of unsound mind and get a guardian appointed under Sections 29 and 32 of the MHO by the Court of Protection and only then can an application for the appointment of his guardian for the suit under Order XXXII of the CPC be entertained by a Banking Court?

It is further observed by the Supreme Court that the instant petition emanates from a suit for recovery filed under the FIO which prescribes a special mechanism for dealing with recovery of finance by the financial institutions from the customers and also establishes special courts, i.e., the Banking Courts for this purpose. Section 4 of the FIO gives its provisions overriding effect over any other law for the time being in force. Section 7 stipulates the powers of Banking Courts and grants them all powers vested in a Civil Court under the CPC in the exercise of its civil jurisdiction. Furthermore, Section 7(2) of the FIO prescribes the Banking Court to follow the procedure laid out in the CPC in all matters with respect to which the procedure has not been provided for in the FIO. Therefore, for the procedure as to how a person of unsound mind or mental infirmity can file or defend a suit filed under the FIO, recourse has to be made to Rule 15 of Order XXXII of the CPC. The Rule 15 of Order XXXII extends the applicability of the procedure given in Rules 1 to 14 to suits by or against persons of unsound mind. Rules 1 of Order XXXII provides that every suit by a minor shall be filed through a next friend and where a minor is the defendant in a suit, Rule 3 mandates the court to appoint his guardian for the suit. The Rule 4(2) states that where a minor has a guardian, appointed by a competent authority, such a guardian shall act as his next friend or be appointed his guardian for the suit, unless, the court for the reasons to be recorded decides otherwise.

The said Rule, therefore, acknowledges two categories of persons of unsound mind: one who is already adjudged by a court of competent authority as a person of unsound mind; 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. In the first category, in view of the provisions of Rule 4(2) the court is to ordinarily appoint the same person as guardian for the suit who has been appointed the guardian under the MHO; 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 MHO by the competent authority.