Understanding the law, appointment of a guardian for litigation, and protection of the legal rights of persons with mental incapacity
Published by Ahsan Legal Services (ALS)
Introduction
Can a person suffering from a mental disorder file a civil suit in Pakistan? Can such a person be sued in a property dispute, inheritance matter, or suit for declaration? What happens when a defendant is unable to understand court proceedings or protect their own legal interests?
These questions frequently arise in civil litigation, particularly in disputes involving inheritance, immovable property, fraudulent transactions, family assets, and allegations of misappropriation.
Pakistani law recognises that a person who is unable to protect their legal interests because of unsoundness of mind or mental infirmity may require special procedural safeguards during litigation. The objective is not to deprive that person of their rights, but to ensure that their interests are properly represented before the court.
The principal provision governing this subject in ordinary civil proceedings is Order XXXII, Rule 15 of the Code of Civil Procedure, 1908 (CPC). It extends relevant procedural protections to persons of unsound mind, including those whom the court finds incapable of protecting their interests after an inquiry.
This guide explains how civil proceedings may be instituted and defended on behalf of such persons, the role of a next friend or guardian for the suit, and the legal precautions that litigants and their counsel should observe.
1. Which law governs civil cases involving persons of unsound mind in Pakistan?
The principal legal framework includes the following:
1. Code of Civil Procedure, 1908
Order XXXII deals with suits by or against minors and persons of unsound mind. Rule 15 extends the applicable provisions of this Order to persons who have been adjudged to be of unsound mind and to persons whom the court finds, upon inquiry, incapable of protecting their interests because of unsoundness of mind or mental infirmity.
Other relevant provisions include Order VII, Rule 1(d), concerning the statement in a plaint where a party is a minor or a person of unsound mind, and the applicable rules concerning the appointment and duties of a guardian for the suit.
2. Mental Health Ordinance, 2001, and applicable provincial law
The Mental Health Ordinance, 2001, contains provisions concerning judicial proceedings, guardianship, and management of the property of certain mentally disordered persons. Its application and interaction with other laws must be considered in light of the relevant provincial legislation and amendments.
Importantly, a guardian appointed to represent someone in a particular civil suit performs a different legal function from a guardian or property manager appointed under mental-health legislation.
3. Other applicable laws
Depending on the dispute, additional laws may apply, including the Specific Relief Act, 1877, the Transfer of Property Act, 1882, the Registration Act, 1908, and relevant inheritance and succession laws.
The applicable legal provisions depend on the nature of the claim, the relief sought, the person’s circumstances, and the territorial jurisdiction of the court.
2. Can a person of unsound mind file a civil suit in Pakistan?
Yes. A person who is incapable of protecting their legal interests because of unsoundness of mind or mental infirmity may institute a civil suit through an appropriate representative, in accordance with Order XXXII CPC.
For example, consider a person who owns valuable immovable property but is unable, because of a serious mental impairment, to understand or conduct legal proceedings. If a relative allegedly transfers that property through a fraudulent transaction, the affected person’s legal rights do not simply disappear.
Depending on the facts, a suit for declaration, cancellation of an instrument, possession, injunction, or another appropriate remedy may be instituted through a properly appointed next friend or other legally authorised representative.
The following principles are important:
- The suit must be brought in the name of the person whose legal rights are affected.
- The representative acts to protect that person’s interests, rather than to advance their own personal claims.
- The representative must satisfy the applicable legal requirements and be suitable to act in that capacity.
- The court may examine whether the person is genuinely incapable of protecting their interests.
- The usual requirements concerning jurisdiction, limitation, cause of action, court fees, pleadings, and evidence continue to apply.
Practical point: A relative should not assume that being a spouse, child, sibling, or other legal heir automatically authorises them to conduct litigation on behalf of a person with mental incapacity. The appropriate procedural authority must be established.
3. Who is a “next friend” or guardian for the suit?
A next friend is a person who conducts legal proceedings on behalf of someone who cannot adequately protect their own interests in the circumstances recognised by law.
In proceedings involving a person of unsound mind, the expression “guardian for the suit” is also relevant, particularly when the person is a defendant.
The representative’s role is to protect the litigant’s legal interests, assist in the proper conduct of the case, and ensure that the proceedings are fair.
Who can be appointed?
The court must consider the applicable provisions of Order XXXII CPC and the circumstances of the particular case. Relevant considerations include:
- Whether the proposed representative is an adult and of sound mind.
- Whether the proposed representative is suitable and willing to act.
- Whether their interests conflict with those of the person requiring representation.
- Whether they can properly protect the person’s interests throughout the proceedings.
- Whether any existing court order or applicable law affects the proposed appointment.
The fact that a person is a close relative does not, by itself, resolve every question concerning suitability or possible conflict of interest.
Where the proposed representative is also involved in the property dispute, is accused of fraud, or stands to benefit personally from the litigation, the court should carefully examine whether that person can fairly represent the affected litigant.
4. How is a civil case filed on behalf of a person of unsound mind?
A civil lawyer should approach such a matter systematically.
Step 1: Identify the cause of action and the appropriate relief
Determine whether the case concerns ownership, inheritance, possession, cancellation of a deed, recovery of money, an injunction, or another civil right.
For example, if property has allegedly been transferred through a fraudulent gift deed, the appropriate relief may include a declaration and cancellation of the instrument, together with consequential relief where legally justified.
Step 2: Collect relevant documents
Depending on the case, the record may include:
- Title documents, mutation entries, registered instruments, and revenue records.
- Medical records or reports from a competent medical board.
- Any existing judicial order concerning mental capacity or guardianship.
- Documents establishing the proposed representative’s relationship with the affected person.
- Evidence of the alleged infringement of the person’s legal rights.
Medical evidence is relevant, but its significance must be assessed in relation to the legal question before the court.
Step 3: Prepare the plaint in the correct manner
The plaint should accurately identify the plaintiff and explain the representative capacity in which the next friend is acting.
Order VII, Rule 1(d), CPC, specifically addresses the requirement to state whether the plaintiff or defendant is a minor or a person of unsound mind. The pleadings should also disclose the material facts supporting the claim and the legal basis for the requested relief.
Step 4: Seek any necessary procedural order
Where required, the appropriate application should be made for recognition or appointment of a next friend or guardian for the suit under the applicable provisions of Order XXXII CPC.
If the person’s capacity is disputed or has not previously been adjudicated, the court may need to conduct an inquiry under Order XXXII, Rule 15.
Step 5: Proceed with the case on its merits
Once the representation issue has been addressed, the suit proceeds in accordance with the CPC and the applicable substantive law.
The representative must protect the litigant’s interests at every stage, including the production of evidence, cross-examination, applications for interim relief, and consideration of any proposed settlement.
5. How is a civil case defended against a person of unsound mind?
A person who is incapable of protecting their interests may also be a defendant in a civil suit. Their legal rights must be protected just as carefully as those of a plaintiff.
Suppose a person with a serious mental impairment is sued for possession of a house, partition of inherited property, recovery of money, or a declaration affecting their ownership rights.
The mere institution of the suit does not establish that the claim is correct. Equally, the defendant’s mental condition does not automatically extinguish the claimant’s rights.
The court must ensure that the proceedings comply with the applicable procedural safeguards.
Important steps for the defendant’s lawyer
First: Examine the defendant’s capacity.
Determine whether there is credible material suggesting that the defendant cannot understand the proceedings or protect their interests. A medical diagnosis alone should not automatically be treated as conclusive proof of incapacity for every legal purpose.
Second: Bring the issue before the court where appropriate.
If the defendant appears incapable of protecting their interests, counsel should consider an appropriate application under Order XXXII, Rules 3 and 15, CPC, as applicable, seeking an inquiry and appointment of a suitable guardian for the suit.
Third: Ensure proper representation.
The court should address the representation issue in accordance with law. A person who cannot adequately protect their interests should not be left without the procedural safeguards required in the circumstances.
Fourth: Defend the substantive claim.
The guardian for the suit must ensure that the defendant’s legal position is properly presented. This may involve filing a written statement, contesting disputed documents, producing evidence, challenging jurisdiction where appropriate, and raising limitation or other legally available defences.
Fifth: Examine any settlement or compromise carefully.
A compromise involving the rights or property of a person with mental incapacity requires particular caution. The applicable rules governing compromise, consent, and court approval must be followed. A representative should not assume that they can freely surrender or transfer the person’s rights merely because they have been appointed to conduct the litigation.
6. Must a person first be declared of unsound mind under the Mental Health Ordinance, 2001?
This is one of the most important practical questions in this area of law.
A distinction must be drawn between:
- Appointment of a guardian for the limited purpose of conducting a particular civil suit; and
- Appointment of a guardian or manager under mental-health legislation for matters such as care, treatment, or management of property.
These are not necessarily the same legal process.
In Malik Arshad Hussain Awan v. Messrs United Bank Limited, PLD 2024 SC 595, the Supreme Court of Pakistan addressed the power of a court to conduct an inquiry under Order XXXII, Rule 15, CPC, and appoint a guardian for litigation without requiring a prior appointment under the Mental Health Ordinance, 2001.
The principle was subsequently discussed by the Lahore High Court in Col. (R) Dr. Riffat Saeed v. Professor Zaheer Adnan, reported as 2026 PLD 568.
In that case, a dispute concerning inheritance and allegedly fraudulent property transfers involved a respondent who had reportedly been diagnosed with schizophrenia and declared permanently incapacitated by a medical board. The courts below had declined to proceed with the application for appointment of a guardian for the suit in the absence of an appointment under the Mental Health Ordinance, 2001.
The Lahore High Court held that the two procedures serve distinct purposes. It explained that a civil court may conduct the inquiry contemplated by Order XXXII, Rule 15, CPC, and appoint a suitable guardian for litigation without requiring a prior guardianship appointment under the Ordinance.
The High Court set aside the impugned orders and remanded the matter for an inquiry in accordance with law.
Practical significance: Where a party is unable to protect their interests in a pending civil suit, counsel should not automatically assume that proceedings must remain suspended until a separate guardianship order has been obtained under mental-health legislation. The court’s power under Order XXXII CPC must be considered independently, subject to the applicable law and facts.
7. What happens if a person of unsound mind is proceeded against without proper representation?
The consequences depend on the facts, the applicable procedural requirements, and the orders passed by the court.
Where a person is incapable of protecting their interests and the safeguards required by Order XXXII CPC have not been observed, counsel should examine whether the proceedings have been conducted in accordance with law.
Possible remedies may include an appropriate application before the trial court, a request for an inquiry into capacity, an application for appointment of a guardian for the suit, or a challenge to a particular order through the legally available appellate, revisional, or constitutional jurisdiction.
However, it would be incorrect to suggest that every procedural irregularity automatically renders the entire suit void. The proper remedy must be assessed in light of the nature of the defect, the stage of proceedings, the prejudice caused, and the applicable law.
What if the defendant has already been declared ex parte?
If a defendant was proceeded against ex parte and there is credible evidence that the defendant could not protect their interests because of mental incapacity, the matter requires urgent legal examination.
Counsel should obtain the relevant order sheets, summons and service record, medical evidence, and any existing guardianship orders. An appropriate application may then be considered under the CPC, depending on whether the case is pending, an ex parte decree has been passed, or another procedural stage has been reached.
The correct remedy and limitation period must be assessed individually. Mental incapacity should not be treated as an automatic substitute for the requirements of a particular application.
8. Can the family appoint any person as guardian for litigation?
No. The representative must meet the applicable legal requirements, and the court must safeguard the interests of the person requiring representation.
A potential conflict is particularly important in inheritance and property litigation. A relative who is seeking to obtain the affected person’s property, disputing their ownership, or accused of executing a fraudulent instrument may not be an appropriate person to represent that individual in the same dispute.
The court must consider the proposed representative’s suitability and whether their interests are adverse to those of the person they are expected to protect.
Where necessary, the court should consider an alternative suitable representative in accordance with the applicable provisions of law.
9. Does mental illness automatically invalidate a person’s property transactions?
No. This issue must be distinguished from the procedural question of representation in litigation.
A diagnosis of mental illness does not, by itself, establish that every contract, gift deed, sale deed, or other transaction executed by that person is invalid.
The validity of a transaction may depend on the person’s capacity at the relevant time, the nature of the transaction, the applicable substantive law, the evidence, and any relevant judicial determination.
For instance, where a registered gift deed is challenged on the ground that its executant lacked the legally required capacity, the court must examine the relevant facts and evidence. Medical records may be important, but the legal effect of those records depends on the issue being decided.
Similarly, a person who is capable of making a particular decision should not be deprived of legal autonomy merely because they have received a psychiatric diagnosis.
The legal inquiry must remain focused on the applicable legal standard and the evidence concerning the relevant transaction or proceedings.
10. Practical checklist for civil lawyers in Pakistan
Before filing or defending a civil suit involving a person who may be incapable of protecting their interests, counsel should consider the following:
- Identify the exact legal right or cause of action.
- Determine whether there is credible evidence of incapacity relevant to the proceedings.
- Obtain available medical records and existing judicial orders.
- Examine whether an inquiry under Order XXXII, Rule 15, CPC, is necessary.
- Identify a suitable next friend or guardian for the suit, keeping possible conflicts of interest in view.
- Ensure that the pleadings correctly disclose the party’s status and representative capacity.
- Consider any interim protection required for property or other legal rights.
- Ensure that evidence and substantive defences are properly presented.
- Check whether any proposed compromise or disposition of property requires specific court approval.
- Verify the applicable provincial legislation, procedural amendments, limitation periods, and available remedies.
This checklist is intended as a general guide. The appropriate procedure depends on the facts and the nature of the proceedings.
Conclusion
The law relating to persons of unsound mind in civil litigation is ultimately concerned with two objectives: protecting vulnerable persons from prejudice and ensuring that disputes are decided according to law.
Order XXXII, Rule 15, CPC, provides an important procedural safeguard by allowing the relevant rules to apply where a person has been adjudged to be of unsound mind or is found by the court, after inquiry, incapable of protecting their interests because of mental infirmity.
The Supreme Court’s decision in Malik Arshad Hussain Awan v. Messrs United Bank Limited (PLD 2024 SC 595) and the Lahore High Court’s decision in Col. (R) Dr. Riffat Saeed v. Professor Zaheer Adnan (2026 PLD 568) are particularly relevant when considering the appointment of a guardian for litigation and the relationship between the CPC and mental-health legislation.
For litigants, families, and legal practitioners, the essential lesson is straightforward: a person’s legal rights must be protected through the correct legal procedure, and mental incapacity must be addressed through evidence and judicial determination rather than assumption.
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Legal disclaimer: This article is intended for general legal information and public awareness. It does not constitute legal advice for any particular case. The applicable law, procedural requirements, and available remedies should be verified in light of the relevant facts, territorial jurisdiction, and current legislation before taking legal action.
