In the Supreme Court of Bangladesh High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Muhammad Abdul Hafiz Civil Revision No. 5470 of 2023
Kazi Ashfaq Shams Plaintiff- Petitioner
Versus
Kazi Ehsanul Haque and others Defendants-Opposite Parties
Mr. A. M. Amin Uddin, Senior Advocate Mr. Md. Nurul Amin, Senior Advocate Mr. S. M. Rezaul Karim,
Senior Advocate
Mr. Mohammad Mozibur Rahman, Advocate
for the plaintiff- petitioner
Mr. A. J. Mohammad Ali, Senior Advocate
Mr. Tanjib-ul Alam, Senior Advocate Mr. Kazi Ershadul Alam, Advocate for the defendant-opposite party No. 5
Mr. A. J. Mohammad Ali, Senior Advocate with
Ms. Jamila Momtaz, Advocate
for the defendant-opposite party No. 1
Judgment on: 05.3.2024 This Rule was issued calling upon the opposite parties to
show cause as to why the Judgment and Order dated 11.10.2023 passed by the learned District Judge, Dhaka in Miscellaneous Case No. 32 of 2023 under Section 21 of the Mental Health Act, 2018
1
rejecting the plaint summarily as being not considerable should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
On 07.08.2023 the petitioner as plaintiff filed a Miscellaneous Case No. 32 of 2023 in the Court of learned District Judge, Dhaka against the opposite parties as defendants under Section 21 of the Mental Health Act, 2018 for appointment of the plaintiff as a guardian of the body and property of his father namely Kazi Shamsul Haque.
The Case of the plaintiff, in short, is that the plaintiff is the eldest son of Kazi Shamsul Haque and Kazi Momtaj Shireen who is the second wife of Kazi Shamsul Haque. The defendant Nos. 1-4 are the sons of Kazi Shamsul Haque and late Kazi Selina Begum and the defendant No. 5 is the youngest son of Kazi Shamsul Haque and Kazi Momtaj Shireen. Kazi Shamsul Haque and Kazi Momtaj Shireen are the age of 89 and 77 years respectively. Kazi Shamsul Haque has been the Chairman of Lake Shore Service Apartment (pvt) Ltd since its inception. He had actively managed the business of the hotels and had purchased many assets and properties for the welfare of his family and to secure a good future for all his children. Kazi Shamsul Haque and Kazi Momtaj Shireen have several properties registered in their name. Lake Shore Service Apartment was also developed over a property registered in the name of Kazi Momtaj Shireen wherein Kazi Momtaj Shireen is the owner of 510 shares. Actually she is not enough educated to take care of the property. As a result she was never a part of the management of the day to day business of the family and business of Lake Shore Service Apartment. She was always dependent on her husband Kazi Shamsul Haque who has been suffering from various health conditions for the last 15 years due to old ages and work stress. However his condition started to deteriorate significantly since 2012. Subsequently he started to show symptoms of various mental health issues and in 2018 he was diagnosed with dementia. Thereafter Kazi Momtaj Shireen so concentrate on taking care of her husband and as a result she barely took care of her mental and physical health. She also has a family history of mental health issue. Kazi Ehsanul Haque one of the brother and the defendant lived with them, but they had never undertaken the role of their guardian. Thereafter Kazi Shamsul Haque day by day had reached the advanced stage of his dementia and as a result Kazi Momtaj Shireen was completely bed ridden and felt lonely and she confined herself within the wall of her Lalmatia residence. The plaintiff came to know that the defendant has bifurcated funds of Lake Shore Service Apartment to invest in
On 07.08.2023 the plaintiff filed the present case and the learned District Judge fixed the next date on 03.10.2023 for maintainability hearing and on the same day the learned District Judge directed the Administrative Officer, Judge Court, Dhaka to send a report from the Director and Professor, National Mental Health Institute, Sher-E- Bangla Nagar, Dhaka whether Kazi Shamsul Haque is a mental health patient or not and accordingly on 10.08.2023 vide memo No. 1392, Administrative Officer, District Judge, Dhaka wrote a letter to the Director and Professor, National Mental Health Institute, Sher-E- Bangla Nagar, Dhaka to send a report by 03.10.2023 after examining Kazi Shamsul Haque whether he is mental health patient or not.
On 16.09.2023 the Director and Professor, National Mental Health Institute, Sher-E- Bangla Nagar, Dhaka sent a letter vide memo No. 2224 to Kazi Shamsul Haque to appear on 20.09.2023 before 10.00 am with prescription, voter ID and photograph before the Forensic Medical Board. Finally on 23.09.2023 vide memo No. 2331 Director and Professor, National Mental Health Institute, Sher-E- Bangla Nagar, Dhaka sent second letter to Kazi Shamsul Haque to appear before the Forensic Medical Board on 26.09.2023 before 10.00 am.
While Kazi Shamsul Haque failed to appear before the Medical Board as per letter dated 16.09.023 and 23.09.2023, on 30.09.2023 vide Memo No. 2421 the Director and Professor, National Mental Health Institute, Sher-E- Bangla Nagar, Dhaka wrote a letter to learned District Judge, Dhaka requesting to grant further one month time for examining Kazi Shamsul Haque for proper adjudication of the matter.
Simultaneously on 30.09.2023 the Director and Professor, National Mental Health Institute, Sher-E- Bangla Nagar, Dhaka also wrote a letter to Kazi Shamsul Haque to appear before the Forensic Medical Board on 17.10.2023 before 10.00 am with Voter ID and photograph.
On 11.10.2023, in the maintainability hearing, the learned District Judge took deposition of the Kazi Momtaj Shireen and defendant No. 5 Kazi Tareq Shams and vide Order No. 4 dated 11.10.2023 rejected the case summarily and also directed the defendant No. 5 to file criminal case against the plaintiff and the concerned Doctor under section 23 of the Mental Health Act, 2018 and under section 195(c) of the Code of Criminal Procedure and hence the plaintiff-appellant as petitioner moved this application under Section 115 (1) of the Code of Civil Procedure 1908 before this Court and obtained Rule, Stay and Status-quo.
Against the interim order, the opposite parties as petitioner filed Civil Petition for Leave to Appeal No. 3445 of 2023 and after hearing Hon’ble Appellate Division did not stay over the interim order passed by this Court and directed this Court to dispose of the case.
Mr. A. M. Amin Uddin, learned Senior Advocate appearing with Mr. Md. Nurul Amin, learned Senior Advocate with Mr. Mohammad Mozibur Rahman, learned Advocate for the plaintiff- petitioner submits that the suit is very much maintainable since there is a provision in the Mental Health Act, 2018 to appoint a guardian by the Court. Section 21 of the Mental Health Act, 2018 provides that
“২১। (১) আপাতত বলবৎ অন কােনা আইেন যাহা িকছ ই থাকু ক না কন, এই আইেনর উে শ পূরণক ে, মানিসক অসুতায় আ া ব র শরীর ও স ি র অিভভাবক হইেব তাহার িপতা বা মাতা।
(২) মানিসক অসুতায় আ া ব র িপতা ও মাতার অবতমােন তাহার বা তাহার আ ীেয়র আেবদেনর পিরে ি েত আদালত উপযু ব েক অিভভাবক িনযু কিরেব :
তেব শত থােক য, মানিসক অসুতায় আ া ব র জন যৗ ক কারেণ কল াণকর িবেবিচত না হইেল কােনা আ ীয়েক অিভভাবক িনযু করা যাইেব না।
(৩) অিভভাবেকর দািয় ও কতব সং া িবষয়াবিল িবিধ ারা িনধাি রত হইেব।
(৪) অিভভাবক উপ-ধারা (৩) এ বিণত দািয় পালেন অবেহলা কিরেল বা অবেহলার েরাচনার সিহত জিড়ত মেম াথিমকভােব তীয়মান হইেল, ানীয় অিধে ে র পুিল শঅিফসার বা ানীয় জন িতিনিধ ম া জে টেক িলিখতভােব অবিহত কিরেব।“
Hence, from a plain reading of this section it is clear that the Court can appoint a competent person as a guardian of a person having Mental Illness. The plaintiff rightly filed the case under section 21 of the Mental Health Act, 2018, which is very much maintainable. The learned District Judge erred in law in rejecting the case summarily.
He further submits that section 21 (2) of the Mental Health Act, 2018 provides that
“21z(২) মানিসক অসু তায় আ া ব র িপতা ও মাতার অবতমােন তাহার বা তাহার আ ীেয়র আেবদেনর পিরে ি েত আদালত উপযু ব েক অিভভাবক
িনযু কিরেব:
In the said Act, section 2(15) provides the definition of ‘মানিসক অসুতা (Mental illness) which is as follows:
২ (১৫) মানিসক অসুতা (Mental illness) অথ দািয় া মিডক াল অিফসার কতৃক িনণ ত মাদকাস এবং মানিসক িতবি তা ব তীত মানিসক
রােগর এক ট ধরন;
From the definition, it appears that মানিসক অসুতা (Mental illness) will be determined by দািয় া মিডক াল
অিফসার
In the said Act, section 2(8) provides the definition of ‘দািয় া মিডক াল অিফসার, which is as follows:
২ (৮) ‘দািয় া মিডক াল অিফসার’ অথ মানিসক হাসপাতােল িনযু মানিসক িচিকৎসায় িশ ণ া কােনা মিডক াল অিফসার বা মানিসক রাগিবেশষ z”
Therefore, it appears from the above-mentioned section that whether a person is mentally ill or not is only determined by the Vested Medical Officer (‘দািয় া মিডক াল অিফসার’). The learned Court cannot determine the state of mind of a mentally ill person by taking deposition or by any other doctor’s certificate. The learned Court has to determine the state of mind of a person whether he is mentally ill or not by taking report from the Vested Medical Officer (‘দািয় া মিডক াল অিফসার’). In the impugned judgment and order, the learned District Judge committed error of law resulting in an error in the decision occasioning failure of justice in rejecting the case summarily by making opinion that the person is not mentally ill by taking deposition from his wife Momtaj Shirin and his son the defendant No.5.
He further submits that the learned District Judge has the power to make a judicial inquiry as to whether the person is mentally ill or not, while a case has been filed before the learned Court under section 21 of the Mental Health Act, 2018 and the procedure of judicial inquiry as to whether the person is mentally ill or not is described in section 20 of the Mental Health Act, 2018. It is pertinent to mention here that the heading of section 20 is “মানিসক অব ার িবচািরক অনুসান”. Section 20 of the Mental Health Act
is reproduced verbatim below:
“২০। (১) মানিসক অসুতায় আ া ব র কােনা অিভভাবক বা আ ীয় উ ব র মানিসক অব া িন পেণর জন আদালেত আেবদন কিরেত পািরেব।
(২) উপ-ধারা (১) এর অধীন আেবদন াি র পর আদালত কােনা দািয় া
মিডক াল অিফসারেক সময়সীমা িনধার ণপূকব মানিসক অসুতায় আ া িহসােব অিভযু ব র মানিসক অ মতা িচি : ত ও যাচাই কিরয়া িতেবদন দািখেলর জন আেদশ দান কিরেত পািরেব।
(৩) উপ-ধারা (২) এর অধীন আেদশ াি র পর দািয় া মিডক াল অিফসার অিভযু ব েক িনধাি রত সময় ও ােন হা জর কিরবার জন আেবদনকারীসহ
সংি েক না টশ দান কিরেব :
তেব শত থােক য, অিভযু ব মিহলা হইেল এবং ধম বা থানুযায় জ ীনস ুে খ উপি ত হইবার বাধা থািকেল, আদালত সুিবধাজনক ােন তাহােক পরী ার ব ব া কিরেব।
(৪) অনুসান সমাি র পর দািয় া মিডক াল অিফসার িতেবদন দািখল কিরেল আদালত অিভযু ব র মানিসক সুতা এবং স ি র ণােব েণর স মতার িবষেয় আেদশ দান কিরেব।
(৫) উপ-ধারা (৪) এর অধীন দ আেদেশর িব ে সং ু হইেল উ তর
আদালেত আিপল দােয়র করা যাইেব।
ব াখ া: এই ধারায় ‘মানিসক অ মতা (Mental disability) বিলেত কােনা ঘটনা বাহ স েক কােনা ব র ধারণা লােভর অসমথতােক বুঝাইেব” ।
From the aforesaid section, it is clear that the Court can make an judicial enquiry to determine as to whether the person is mentally ill or not by taking a report from Vested Medical Officer (‘দািয় া মিডক াল অিফসার’) the learned District Judge at the outset of the suit followed the right procedure by calling a report from the Director & Professor, Mental Health Institute, Sher-e-Bangla Nagar, Dhaka, as to whether Kazi Shamsul Haque is mentally ill or not. But subsequently, the learned District Judge without taking any report from Vested Medical Officer (‘দািয় া মিডক াল অিফসার’) declared Kazi Shamsul Haque as being not mentally ill by just taking deposition from his wife Momtaj Shirin and his son the defendant No.5 and rejected the case summarily, which is absolutely illegal. The learned District Judge ought to have taken medical report from Vested Medical Officer (‘দািয় া মিডক াল
অিফসার’) and if the Vested Medical Officer (‘দািয় া মিডক াল অিফসার’) reported Kazi Shamsul Haque as being not mentally ill, then the learned District Judge could have rejected the case summarily. In view of the above, committed error of law resulting in an error in the decision occasioning failure of justice in rejecting the case summarily.
He further submits that the learned District Judge cannot reject the case summarily only by taking deposition at the early stage. The Code of Civil Procedure, 1908 provides in its various Orders as to on what stage the Court can examine the parties.
Order 10 rule 1 of the Code of Civil Procedure, 1908 provides as follows:
At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.
Order 14 rule 1(5) of the Code of Civil Procedure, 1908 provides as follows:
At the first hearing of the suit the Court shall after reading the plaint and the written statements, if any and after such examination of the parties as may appear necessary ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend:
Provided that in any case the issues shall be framed and recorded, subject to the provisions of rules 4 and 5, within fifteen days from the date of first hearing of the suit or the date of filing of the written statement, whichever is later.
Order 15 rule 1 of the Code of Civil Procedure, 1908 provides as follows:
Where at the first hearing of the suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.
So, in Order 10 rule 1 and Order 14 rule 1(5) we find provisions for examination of witnesses at the first hearing. Order 15 rule 1 also mentioned the expression at the first hearing. Now the issue is on what stage it would be counted as “at the first hearing”.
In the case of Ved Prakash Wadhwa Vs Vishwa Mohan reported in AIR 1982 SC 816, Indian Supreme Court held as follows:
“What is "the first hearing of the Suit"? Certain decisions have been cited before us of the Allahabad High Court which indicate that "the first hearing of the suit" is when, after the framing of issues, the suit is posted for trial, that is, production of evidence. In the matters of State statutes where procedure has to be pronounced upon, the practice of the Court is the best guide to interpretation and the Allahabad High Court having pronounced upon the question we think we ordinarily accept such interpretation unless there is something revoltingly wrong about the construction. We see none here and, therefore, adopt as correct the decision of the High Court regarding the meaning of the expression "at the first hearing of the suit". We may however add that the expression "at the first hearing of the suit" is also to be found in Order X rule 1, Order XIV rule 1(5) and Order XV rule 1 of the Code of Civil Procedure, 1908. These provisions indicate' that "the first hearing of the suit" can never be earlier than the date fixed for the preliminary examination of the parties (Order X rule 1) and the settlement of issues (Order XIV rule 1(5)”.
So, it is crystal clear that the Court cannot reject the case summarily by examination of parties/witness on maintainability hearing.
He further submits that the Court has ample power to reject the plaint under section 7 rule 11 of the Code of Civil Procedure, 1908 in the following cases:
In the instant case, the Court did not reject the plaint but reject the Miscellaneous Case summarily.
However, in the case of MR Trading Company Vs DCC (North) reported in 73 DLR 97, Hon’ble High Court Division held that in an application under Order VII rule 11 of the Code the statement made in the plaint has to be looked into to determine if the suit does not disclose any cause of action under Order VII, rule 11 of the Code, it is the statement of the plaint which is the determining fact and it cannot be applied in the case of maintainability of the suit.
Conversely, in the case of Shirajul Islam Vs Bangladesh Bank reported in 73 DLR 554, the Hon’ble High Court Division held that “in a proper case the plaint can be rejected immediately after its registration and even before issuance of summons because of the fact the word ‘shall’ in the provisions under Order VII rule 11 of the Code makes it obligatory for the Court to reject a plaint if such plaint does not disclose any cause of action or if the suit is barred by law. ......(4.42)
A still born suit should be properly buried as its inception so that no further time is consumed on a fruitless trial and such burial also gives benefit to the plaintiff who then can have a chance to replace his steps at the earliest possible moment so that, if permissible under the law, he may find a properly constituted case. .......(4.40)”
But in the instant case, the learned District Judge did not reject the Miscellaneous Case on any ground as prescribed in Order 7 rule 11, rather rejected the case only on the examination of witnesses, which is absolutely illegal and as such the Rule may kindly be made absolute.
He further submits that the learned Advocate for the opposite party argued that a suit/case can be summarily rejected under section 151 of the Code of Civil Procedure. This argument has no legal basis at all. The petitioner filed the instant civil revision and obtained Rule, Stay and Status-quo. Against the interim Order, the opposite parties as petitioner filed Civil Petition for Leave to Appeal and Hon’ble Appellate Division did not stay over the interim order and directed the High Court Division to dispose of the case. Where there are several provisions in the Code of Civil Procedure to reject a case, section 151 cannot be invoked for rejecting a case summarily. In the instant case, the learned District Judge rejected the case only on the basis of deposition of non-defendant Kazi Momtaj Shireen and the defendant No.5, which is highly illegal and as such the Rule may kindly be made absolute.
He further submits that the plaint can be rejected in view of the provision under Order 7 rule 11 of the Code of Civil Procedure, 1908 and also by exercising power under section 151 of the Code of Civil Procedure. But the learned District Judge did not reject the plaint under Order 7 rule 11 or by exercising under section 151 of the Code of Civil Procedure. The learned District Judge rejected the plaint mainly on the basis of evidence adduced by Kazi Momtaj Shireen and her son Kazi Tariq Shams. The evidence taken by the learned District Judge is illegal and without jurisdiction and as such the learned District Judge committed gross illegality in rejecting the case summarily.
He further submits that the plaintiff did not submit the medical certificate of Kazi Momtaj Shireen. That document is at best a prescription, but the learned District Judge held that the plaintiff filed false medical certificate. Without examining the doctor the court cannot held that the certificate is false and the learned District Judge dismissed the suit summarily in holding that since the doctor issued false certificate, so directed to the defendants to file Criminal proceedings under section 195(1)(c) of the Code of Criminal Procedure against the doctor and plaintiff which is also illegal and without jurisdiction. If the order of penalty upon the doctor is not set aside, without giving any opportunity to defend himself is a violation of natural justice and as such the learned District Judge committed error of law and the impugned judgment is liable to be set aside.
He further submits that the learned District Judge most illegally directed the defendant No.5 to file a criminal case under section 23 of the Mental Health Act, 2018 against the plaintiff and the Doctor.
Section 23 (1) of the Mental Health Act, 2018 provides as
follows:
২৩। (১) মানিসক া সবায় িনেয়া জত পশাজীবী িহসােব কােনা ব মানিসক অসুতা স িকত িবষেয় উে শ েণািদতভােব িমথ া সা ট িফেকট দান কিরেল
অনিধক ৩ (িতন) ল টাকা অথদ বা ১ (এক) বৎসর স ম কারাদে বা উভয় দে দ ত হইেব।
Section 2 (20) of the Mental Health Act, 2018 provides the definition of মানিসক া সবায় িনেয়া জত পশাজীবীwhich is as follows:
২ (২০) ‘মানিসক া সবায় িনেয়া জত পশাজীবী বা সাইেকাল জ ’ অথ ীকৃ ত িব িবদ ালয় হইেত িডি া ি িনক াল সাইেকাল জ , এড েকশনাল
সাইেকাল জ , কাউে িলং সাইেকাল জ এবং মানিসক া িবষেয় িবেশষ মেনািব ানী, সাইিকয়া , ি িনক াল সাইেকাল জ, সাইিকয়া ক সাশ াল ওয়াক, অকু েপশনা ল থরািপ, এড েকশনাল সাইেকাল জ, কাউে িলং, কাউে িলং সাইেকাল জ, সাইেকােথরািপ এবং সাইিকয়া ক নািসং -এ িনেয়া জত ীকৃ ত িব িবদ ালয় ও িত ান হইেত িডি ও িশ ণ া ব ;
From the section 23(1) and 2(20) of the Mental Health Act, 2018, it transpires that under that section only a Professional engaged in mental health or Psychologist can be convicted under section 23(1) of the Mental Health Act, 2018. The Doctor issuing certificate is not a doctor as described in section 2(20) of the Mental Health Act, 2018 and so he cannot be prosecuted under section 23(1) of the Mental Health Act, 2018. Therefore, the direction given by the learned District Judge, Dhaka upon the defendant no. 5 to initiate criminal proceedings against the plaintiff and the Doctor is absolutely illegal.
He further submits that the learned Advocate for the opposite parties referred some decisions which are not relevant and applicable with the fact of the present case. The learned Advocate for the opposite parties mainly referred a decision reported in 53 DLR (AD) 12 where the Hon’ble Appellate Division held that “The present Suit cannot be allowed to be proceeded further. As the ultimate result of the suit is as clear as day light such a suit should be properly buried at its inception so that no further time is consumed in a fruitless litigation”. The learned Advocate for the opposite party also referred a decision reported in 73 DLR 554 where the Hon’ble High Court Division held that “the civil Court has obligation, at the very beginning, to examine the plaint to check if it is conforming to the legal requirements. If formal defects in the plaint are found, Court should give reasonable opportunity to the plaintiff to cure such defects. But if the defect goes to the very root of the suit, the Plaint should be rejected on the very averments of the plaint either for non-disclosure of cause of action or on the ground that the suit is barred by or under law. In such a case, it is the obligation of the Court to reject the plaint even before issuance of summons.
In the aforesaid two judgments, it appears that the Court can reject the plaint at the early stage if the Court finds grounds prescribed under Order 7 rule 11 of the Code of Civil Procedure, 1908 and in that case of rejection the Court can only examine the forecorner of the plaint. But in the instant case, the leaned District Judge rejected the case by examining two witnesses, which is highly illegal. The District Judge treating him as a Doctor and relying on the deposition of two witnesses illegally decided that Kazi Shamsul Haque is not mentally ill. The learned District Judge should have conducted judicial inquiry by taking medical report from Vested Medical Officer (‘দািয় া মিডক াল অিফসার’) under section 20 of the Mental Health Act, 2018 as to whether the concerned person is mentally ill or not. But the learned District Judge only by examining two witnesses decided that Kazi Shamsul Haque is not mentally ill and rejected the case summarily, which caused miscarriage of justice and as such the Rule may kindly be made absolute.
Mr. A. J. Mohammad Ali, learned Senior Advocate appearing with Mr. Tanjib-ul Alam, learned Senior Advocate for the defendant-opposite party submits that the instant Civil Revision filed by the Petitioner in relation to his father’s guardianship is not maintainable as in the current form as there is no cause of action to continue the current proceedings. From the plain reading of the plaint, it would appear that there is no averment made or documents produced calling for passing any order of admission let alone pass any order for appointment of the Petitioner as guardian of Kazi Shamsul Haque. The Petitioner alleged that Kazi Shamsul Haque is suffering from “mental illness” but failed to adduce any document recognized under the Mental Health Act, 2018 being a certificate from “ ািয় া মিডেকল অিফসার” to support that Kazi Shamsul Haque is indeed suffering from mental illness requiring admission of the Miscellaneous Case No. 32 of 2023.
The instant Civil Revision is not maintainable due to misapplication of Section 21 of the Mental Health Act, 2018:
The Petitioner as plaintiff filed the current suit under Section 21 of the Mental Health Act, 2018 and Section 21 of the Mental Health Act, 2018 only applies when the person already has diagnosed as a patient of mental illness or mental disorder. Section 21 of the Mental Health Act, 2018 states that-
ah naÑ b¡L ®k, j¡e¢pL Ap¤Øqa¡u BH²¡¿¹ hÉ¢š²l SeÉ ®k±¢š²L L¡lZ LmÉ¡ZLl ¢hh¢Qa e¡ qCm ®L¡e¡ BaÈ£uL A¢ii¡hL ¢ek¤š² Ll¡ k¡h e¡z
Admittedly, the Petitioner did not produce any document/evidence to support that Kazi Shamsul Haque is suffering from “mental illness”. The whole case of the Petitioner is that Kazi Shamsul Haque is suffering from dementia as diagnosed by a Consultant of Internal Medicine of United Hospital. As such, since there is no evidence to support that Kazi Shamsul Haque is suffering from mental illness, the application under section 21 of the Mental Health Act, 2018 is not maintainable.
He next submits that the Petitioner has stated in the plaint and Civil Revision Petition that his father is suffering from mental illness. Section 2(15) of the Mental Health Act, 2018 defines Mental illness which defines it as “c¡¢uaÄf¡Ëç ®j¢XLm A¢gp¡l La«ÑL ¢eZ£Ña j¡cL¡p¢š² Hhw j¡e¢pL fË¢ah¢åa¡ hÉa£a j¡e¢pL ®l¡Nl HL¢V dl” e।
The certificate provided by the Petitioner in support of their case obtained from a doctor named as Dr. Iqbal Hossain, Consultant, Internal Medicine, United Hospital. The definition of Medical Officer in charge (c¡¢uaÄfË¡ç ®j¢XLm A¢gp¡) lhas been provided in section 2 (8) of the Mental Health Act, 2018 which states that “c¡¢uaÄfË¡ç ®j¢XLm A¢gp¡l AbÑ j¡e¢pL q¡pf¡a¡m ¢ek¤š² j¡e¢pL ¢Q¢Lvp¡mu fË¢nr e f¡Ëç ®L¡e ®j¢XLm A¢gp¡l h¡ j¡e¢pL ®l¡N ¢hno‘” the case summary of Shamsul Haque provided by Dr. Iqbal Hossain and he is a Consultant, Internal Medicine. He is not qualified to provide the above- mentioned certificate as his qualification does not comply with the requirements of law described in section 2(8) of the Mental Health Act, 2018. As such, the Miscellaneous Case No. 32 of 2023 was not maintainable and hence, the Civil Revision is not maintainable.
He further submits that the learned Senior Advocate for the Petitioner sought to argue that the Miscellaneous Case be sent back for adjudication on the point of maintainability. In this regard, it is respectfully submitted that the question of maintainability, being a question of law can be raised at any time and this Hon’ble Court has ample power and jurisdiction to examine the question of maintainability. In the case of Joyanta Kumar Datta & Others VS Dilip Ranjan Datta and others reported in 13 BLC 376, the Hon’ble High Court held that if the objection with regard to maintainability of the suit even if not raised at any stage may be raised for the first time before the revisional court if a decision of the same may be reached on admitted facts or, in the other words, the issue with regard to maintainability of a suit may be decided by the revisional court on the basis of facts which are not disputed. Further, in the case of Ayezuddin Sheikh & Others VS Abdul Karim Sheikh and Others reported in 42 DLR 154, the Hon’ble High Court held that question of maintainability of the appeal though not raised in the appellate court below, can be raised in the Revisional Court as it is a question of law.
He further submits that it is the duty of the Hon’ble Court to bury a frivolous case in its inception in order to save precious public time and money. In the case of Abdul Jalil and Others Vs. Islamic Bank Bangladesh Ltd. and others reported 53 DLR (AD) 12 the Hon’ble Appellate Division held that: “The present Suit cannot be allowed to be proceeded further. As the ultimate result of the suit is as clear as day light such a suit should be properly buried at its inception so that no further time is consumed in a fruitless litigation”. Similarly, it is evident as clear as daylight that the Miscellaneous Case is not maintainable, hence, there is no point in proceeding with the suit anymore and the same shall be buried in the early stage.
He further submits that Petitioner filed suit against his siblings not against his father in the Miscellaneous Case the Petitioner filed the Miscellaneous Case No. 32 of 2023 against his siblings and not against his father against whom the Petitioner seeking relief. It is a legal requirement to make the person a party to the legal proceeding against whom relief is being sought. Since, Kazi Shamsul Haque has not been made a party to the case, the case is not maintainable.
He further submits that the motive of the Petitioner is mala fide that the Petitioner initiated the Miscellaneous Case only to ensure his “right of inheritance” i.e. to prevent his father from disposal of the property which intention has been glaringly evident in the paragraph No. 14 of the Plaint which goes as follows:
14. That it is important to mention that although the plaintiff and the defendants are not entitled to the right, title or interest over properties, however, Kazi Shamsul Haque and Kazi Momtaj Shireen had confirmed that they had no intention to deprive the plaintiff or any other children from their right of inheritance with respect of the scheduled properties. However, it is due to the mischief of one or more of the defendants that the plaintiff is being deprived of his right of inheritance to the scheduled properties and these transfers were all orchestrated after Kazi Shamsul Haque had his mental illness.
From the above quoted averment from the plaint, it is palpably clear that the Miscellaneous case is a mala fide proceeding initiated only to create pressure on the father to bend to his illegal demand and to ensure his “right of inheritance” and not for the wellbeing of Kazi Shamsul Haque.
Admittedly, Kazi Shamsul Haque and Kazi Momtaj Shireen live with Haque’s eldest son Kazi Ehsanul Haque and has been living with him for the last 30 years. However, in the whole plaint there is no single averment that Kazi Ehsanul Haque does not take care of his parents.
From the plain reading of the plaint, it would palpably evident that the Petitioner is concerned only about the properties and out of the 20 paragraphs in the plaint, more than 12 paragraphs are about the properties of Kazi Shamsul Haque and Kazi Momtaj Shireen.
He further submits that even though in the original Miscellaneous Case there was no prayer on disposal of properties of the parents, the Petitioner obtained an order of status-quo by misleading the Hon’ble High Court. This also indicates that the Petitioner’s sole objective is property and not wellbeing of his parents.
It would appear that the application under section 21 of the Mental Health Act, 2018 has been filed against both the parents on the same day. Further, the evidence that has been adduced by the Petitioner in the case of mother is a certificate from a doctor who has not diagnosed Kazi Momtaj Shireen and the said certificate was obtained just a week before filing of the case. This is also a glaring example of mala fide intention of the Petitioner for causing harassment to the parents and the intention of the Petitioner is to creating pressure on the parents to bend to his illegal demand.
Admittedly, the Petitioner is a citizen of Canada who spends most of his time in Canada. He does not have any intention to take care of his parents; the only intention is to cause harassment to their parents for not abiding to his illegal demands.
All of the above shows that the Petitioner does not have any concerns about the wellbeing of his parents; his only concern is property of them. In this regard, his mother Kazi Momtaj Shireen also furnished an affidavit confirming the events leading to the filing of plaint which clearly shows mala fide intention of the Petitioner to cause harassment to his parents.
He next submits that the Petitioner filed the instant Civil Revision for the purpose of obtaining property from his father illegally, forcefully and by any means. The Learned District Judge after taking deposition from Kazi Momtaj Shireen confirmed that father of the Petitioner Kazi Shamsul Haque has not been suffering from any mental illness but the Petitioner is trying to establish forcefully that his father is suffering from mental illness, so that the Court can declare his father as a patient of mental illness and the Petitioner can obtain the property of his father. If the Hon’ble Court allows the Civil Revision filed by the Petitioner against his father, the position of each and every parent will be severely vulnerable of this country. It will be a regular practice for the children, e.g., the instant Petitioner, to come to the Court with any falsifying document/medical certificate for the purpose of establishing mental illness and/or mental disorder against their parents and pray to the Court to declare them as the guardians of the body and property of their parents. This will be the simplest way for the children who always carry the mala fide intention in their mind to obtain the property illegally and forcefully from their parents. The Hon’ble Court should consider the floodgate issue very seriously for ensuring the protection and best interests of every elderly parents of this country, otherwise their position will be more vulnerable.
In this regard he has referred several decision of this Court which states as follow:-
Shirajul Islam Mollah and Ors. Vs. Bangladesh Bank and Ors. (73 DLR (2021) 554): the Hon’ble High Court Division held that, “the civil Court has obligation, at the very beginning, to examine the plaint to check if it is conforming to the legal requirements. If formal defects in the plaint are found, Court should give reasonable opportunity to the plaintiff to cure such defects. But if the defect goes to the very root of the suit, the Plaint should be rejected on the very averments of the plaint either for non-disclosure of cause of action or on the ground that the suit is barred by or under law. In such case, it is the obligation of the Court to reject the plaint even before issuance of summons.
Nurul Abser Chowdhury Vs. Jesmin Akhter (51 DLR 352) “Error in the decision of the subordinate Courts do not by itself justify interreference in revision unless it is manifested that by the error substantial injustice has been rendered. The decision which is calculated to advance substantial justice, through not strictly regular, may not be interfered with in revision”.
Ajab Khan Vs. Karimi Industries and Others (PLD 1980 Peshwar 259):
Where there has been gross error of law, if it appears that the impugned order is just and proper or that substantial justice has been done.
Managing Director, Janata Bank Vs, Md Bazlur Rahman and Others (51 DLR (AD) (1999) 141:
In appropriate cases the revisional Court can consider additional evidence.
He next replies to the petitioner argument:
Shirajul Islam Mollah and Ors. Vs. Bangladesh Bank and Ors. (73 DLR) 554) case and which stated that-
The Court can reject the plaint even before issuance of summons.
appropriate cases the revisional Court can consider additional evidence. Hence, the Hon’ble High Court Division has the power to consider additional evidence in exercising revisional power. The Hon’ble High Court Division has the power to consider the additional evidences e.g. Affidavit of Kazi Momtaj Shireen and G.D filed by Kazi Momtaj Shireen and Kazi Shamsul Haque.
Heard the learned Advocates for the both parties and perused the record.
The whole Case of the plaintiff-petitioner is that Kazi Shamsul Haque is suffering from mental disorder namely dementia but in this respect the plaintiff-petitioner did not produce any genuine document. So there is no reason to believe the plaintiff- petitioner’s case. On the other hand, from the record it appears that the plaintiff-petitioner only filed a prescription to prove his case and for that prescription the concerned Doctor cannot be prosecuted under Section 195(1)(c) of the Code of Criminal Procedure.
Considering the facts and circumstances of the Case, I find no substance in this Rule.
Accordingly, the Rule is discharged without any order as
costs.
The Judgment and Order dated 11.10.2023 passed by the learned District Judge, Dhaka in Miscellaneous Case No. 32 of 2023 under Section 21 of the Mental Health Act, 2018 rejecting the plaint summarily as being not considerable is hereby up-held.
The order of stay and status-quo granted earlier by this Court is hereby vacated.
Communicate the Judgment to the Courts below at once.
BO-Monir