livelawpk.com - Banking Court power to appoint guardian

The Banking Court has the power to determine the Unsoundness of Mind or Mental Infirmity of a Person on an inquiry under Order XXXII of the CPC based on the evidence and appoint a Guardian for the Suit for the limited purpose of representation before the Court of Law, without first seeking an Appointment of a Guardian under the MHO --- Supreme Court of Pakistan

8 months, 3 weeks
288

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 Banking Court, has the power to determine the unsoundness of mind or mental infirmity of a person on an inquiry under Order XXXII of the CPC based on the evidence and appoint a guardian for the suit for the limited purpose of representation before the court of law, without first seeking an appointment of a guardian under the MHO. The factual position of the case is that the respondent Bank filed a recovery suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (“FIO”) against the brother and father of the petitioner on 03.01.2011. While the father of the petitioner contested the suit by filing his application for leave to defend, the brother of the petitioner was proceeded against ex-parte vide order dated 10.02.2011. Subsequently, the petitioner filed an application under Rules 3 and 15 of Order XXXII of the Code of Civil Procedure, 1908 (“CPC”) before the Banking Court seeking his appointment as guardian for the suit of his brother who he asserted was suffering from mental infirmity and was of unsound mind. The said application was dismissed by the Banking Court on merits vide order dated 16.09.2013 on the ground that there was no valid document on the record to establish that the brother of the petitioner was of unsound mind or suffering from any mental infirmity. Aggrieved of the said order, the petitioner filed an appeal before the High Court under Section 22 of the FIO, which was dismissed through judgment dated 18.06.2020 (“impugned judgment”). The High Court maintained that the 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, (“MHO”) before the petitioner could be entitled to file an application under Order XXXII, CPC, before the Banking Court. The Supreme Court accepted appeal and set aside the impugned orders.