In the Supreme Court of Bangladesh High Court Division

(Civil Revisional Jurisdiction)

Present:

Mr. Justice Muhammad Abdul Hafiz Civil Revision No. 5471 of 2023

Kazi Ashfaq Shams Plaintiff- Petitioner

Versus

Kazi Tareq Shams Defendant-Opposite Party

Mr. A. M. Amin Uddin, Senior Advocate Mr. Md. Nurul Amin, Senior Advocate Mr. S. M. Rezaul Karim,

Senior Advocate with

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 with Ms. Jamila Momtaz, Advocate

for the defendant-opposite party

Judgment on: 29.2.2024 This Rule was issued calling upon the opposite party 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. 31 of 2023 under Section 21 of the Mental Health Act, 2018 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. 31 of 2023 in the Court of leanred District Judge, Dhaka against the opposite party as defendant under Section 21 of the Mental Health Act, 2018 for appointment of the plaintiff as guardian of body and property of Kazi Momtaj Shireen.

The Case of the plaintiff, in short, is that the plaintiff and the defendant are full brothers and sons of Kazi Shamsul Haque and Kazi Momtaj Shireen. 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 of his children. Kazi Shamsul Haque and Kazi Momtaj Shireen have several properties registered in their names. 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 sheres. 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. 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 several other personal business investments without knowledge of other shareholders. The defendant would use the funds of the business for his personal gain while depriving his parents proper care, financial support manipulating them that he could not do more due to the f