' RAJA MUHAMMAD KHURFHID KHAN, C. J.-This appeal, by leave, directed against the judgment and decree of the High Court passed on 21st of March, 1984, arises out of the following facts:- ' One Mst. Bashir Begum and Sh. Muhammad Saleem, respondents herein, sought to pre-empt the sale-deed executed in favour of Qurban Hussain, appellant (vendee) to this appeal, by Mst. Iqbal Begum, Ejaz Alam, Iftikhar Alam, Zulfiqar Alam and Nisar Alam, vendors, by way of two separate suits, in the Court of Sub-Judge, Bhimber. Both the suits were consolidated and after settling the issues, Sh. Muhammad Saleem was directed by the Sub-Judge to adduce evidence to prove his pre-emptive right. We may reproduce here the issues settled in the matter. The issues are:- {{URDU TEXT}} ' To prove his pre-emptive right, Sh. Muhammad Saleem examined himself as his own witness and closed the evidence. Thereafter Mst. Bashir Begum, the rival pre-emptor, was called upon to lead evidence in support of her preferential right of pre-emption as compared with Sh. Muhammad Saleem. Despite various opportunities she failed to examine any witness; consequently her suit was dismissed by the trial Court for want of proof on 12-12-1981.
' The first appeal moved by her before the District Judge, Mirpur, for reversal of the order of the trial Court also failed, vide order dated 3-7-19$3.
' A learned Single Judge in the High Court, in second appeal, however, accepting the appeal vide judgment and decree, dated 21-3-1984 vacated the order of the dismissal of her suit. While disposing of the appeal, the learned Judge in the High Court framed three additional issues, namely, {{URDU TEXT}} and directed the trial Court to decide these issues too alongwith other issues after recording evidence afresh. This appeal seeks reversal of the said report of the High Court.
2. Ch. Muhammad Sharif Tariq, the learned counsel for the appellant has offered the following citicism for reversal of the judgment of the High Court:-
(i) that as the issues framed by the High Court have never been claimed during the trial by Mst.
Bashir Begum or any other party, it would be presumed that the issues stand abandoned and the learned Judge, therefore, in the High Court fell in error to frame the additional issues;
(ii) that the learned Judge in the High Court was not justified to recast the issues so as to afford opportunity to the respondents to lead evidence afresh and fill in the lacuna;
(iii) that the respondent, Mst. Bashir Begum, was very much alive to the controversy and, therefore, non-framing of any issue of settling incorrect issues had not occasioned any miscarriage of justice, so as to vitiate the proceedings;
(iv) that the statement of Sh. Muhammad Saleem, the rival pre-emptor, the only evidence in support of his right of prior purchase, has nothing substantial to hold that the respondent, Ms:.
Bashir Begum, had preferencial right to pre-empt the suit land;
(v) that the evidence of Sh. Muhammad Saleem, in any event, cannot be read as a piece of evidence in favour of Mst. Bashir Begum, respondent, without affording an opportunity to the appellant to rebut the same; and
(vi) in alternate it has been contended that even if the High Court could be said to be competent to recall the dismissal order, the only permissible order was to remand the case for deciding the matter on the basis of the material available on the file. The High Court, according to the learned counsel, outstepped its jurisdiction and erred in remanding the case after framing additional issues.
' In support of his contention that omission to claim the issues during the trial is fatal to a party, the learned counsel has referred us to cases Malik Fateh Muhammad Khan and others v. Malikani Bagh Bhari (1), Sardaran and others v. The Municipality, Lyallpur (2), Muhammad La! v. Mohko and others
(3) and Khadim Hussain and others v. Manga Khan (4).
3. As against this Raja Imdad Ali Khan, the learned counsel for the respondents, inter alia, argued:-
(i) that the Trial Court has passed the impugned order under Order XVII, rule 3 of the Code of Civil Procedure and such an order under the relevant law, could not be passed without considering the available material on the record, i. e. The statement of Sh. Muhammad Saleem who has denied his prior right as compared to the right of Mst. Bashir Begum. The remand order by the High Court, therefore, has competently been made;
(ii) that if in a given case there is no material on the record to decide
(1) PLD 1956 Lah. 596 (2) PLD 1961 Lah. 55
(3) P D 1979S C (A J & K) 15 (4) PLD 1981 SC (A J & K) 40 the issues, the provisions of Order XVII, rule 3 of the Code of Civil Procedure cannot be attracted; WO that the issues framed by the trial Court were not only incorrect but they were insufficient to make the parties alive about the controversy and, therefore, the respondent, Mst. Bashir Begum, could not be penalised for not producing the evidence in support of the relevant issues; and
(iv) that Mst. Bashir Begum need not to have produced any witness as her preferential right stands amply establisned in the evidence of Sh. Muhammad Saleem, the rival pre-emptor, and her suit as such could not be dismissed for want of proof.
4. We have considered the arguments advanced at the Bar and have also looked into the relevant law cited by Ch. Muhammad Sharif Tariq.
5. To resolve the controversy, it would be prontable to know the grounds of preferential right .Claimed by Mst. Bashi" Begum and Sh. Muhaininad Saleem in their respective suits. It would also be advantageous to know the grounds of defence put forth by Qurban Hussain, vendee (appellant).
6. Mst. Bashir Begum claimed prior right on the basis of her being .`Yakjaddi' of the vendors and also `Shareek-e-Khata' and `Shareek-eKhewat' in the suit land. She also averred that the appellant, vendee, Qurban Hussain, has no connection whatsoever with the vendors lqbal Begum-widow of Sh. Fazal Karim, Ejaz Alam, Iftikhar Alam and Zulrioar Alam sons of Sh. Fazal Karim and Nisar Alam son of Sh. Fazal Alam.
7. In reply to the claim put forth by Mst. Bashir Begum, Sh. Muhammad Saleem denied* her right of prior purchase while the vendors and vendee, Qurban Hussain, appellant, who have submitted consolidated written statement, averred that they are ignorant of the contents of para. 5 of the plaint in which right of prior purchase by Mst.Bashir Begum is claimed. Sh. Muhammad Saleem claimed prior right on the basis of his and that of vendors' fathers being paternal-uncles and also for his hailing from common ancestors. His right was also repudiated by the parties in their written statements.
8. Before discussing the controversial issue as to whether the remand order made by the High Court was correct, let us pause here and refer to the relevant law on the point, i. e. Order VIII, rule 5 of the Code of Civil Procedure. It reads as under:- "5. Specific denial-Every allegation of fact in the plaint, if not denied specifically or any necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except at against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
9. What rule 5 of Order VIII, it would appear, says is that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner then allegation shall be taken to be admitted. The Order, thus, provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication in the written statement, shall be taken to be admitted by the defendant.
The defendant must deal specifically with each allegation of fact of which he does not admit theiri truth. If the defendant, therefore, fails to do so, it can legitimately be said that the fact phaded in the plaint has been admitted. So was held in Messrs Rah-e-Manzil Transport and others v.
Muhammad Ameen (1), Mehdi Hassan v. Ghulam Muhammad etc. (2), The Trustees of the Port of Chittagong and another v. River Steam Navigation Co. Ltd., Chittagong (3) and Messrs Pakistan Khopra Mills v. Messrs Abdul Rashid Siddiki & on: (4).
' In Messrs Rah-e-Manzil Transport and others v. Muhammad Ameen it has been found: - "In the present case, there was not even an unspecific denial of the clear assertion in para. 6 of the plaint with regard to the rash and neglgent act of the defendants' servant. In the circumsta ces of the case we are quite clear that the learned Judge below was right in basing the finding upon this part of the case in the absence of any denial by the defendants and in not requiring this fact to be proved otherwise than by such admission."
' In this case the fact that the boy was run over by the bus in question and died on the spot was not disputed, and the defendants did not choose to deny to the specific allegation of the rash and negligent act of their servant. The Court observed that the plaintiff was well within his rights in not pleading any evidence with regard to that fact.
' In Mehdi Hassan v. Ghulam Muhammad etc. It was held:- "It is no longer necessary for the plaintiff to plead the performance of a condition precedent. If the pleadings are silent they must be read as implying an allegation of performance."
' In The Trustees of the Port of Chittangong and another v. River Steam Navigation Co. Ltd., Chittagong it was observed:- "In view of their failure to deny the allegation in the plaint that the notice had been duly served it must be taken to. Have admitted that averment and the implication of this implied admission is that they waived their right to a proper notice."
' In Messrs Pakistan Khopra Mills v. Messrs Abdul Rashid Siddiki& Sons it has been observed:- "It is not, therefore, sufficient to argue that the respondents have not denied the allegation of their failure to apply, but it is also necessary to show that such a denial is not necessarily implied in the contest of para. 2 of the written statement."
10. The law is also now well set that denial of knowledge of a particular fact is not a denial of the fact, and has not the effect of putting 8 the fact in issue. We are fortified in our view in Samrathmal v. Union o India (5).
11. The law, therefore, which admits of no exception, is that if the allegation of fact contained in the plaint is not specifically or by necessary implication denied in the written statement it may be taken as adnutted in the discretion of the Court.
(1) PLD 1963 Kar. 182 (2) PLD 1964 Lah. 684
(3) PLD 1965 SC 352 (4) PLD 1957 Kar. 781
(5) (1959) M P305
12. The importance of rule 5 of Order VIII of the Code of Civil Procedure lies in this that since facts which have been admitted need not be proved, it is not necessary for the plaintiff to prove facts which hay been expressly admitted by the defendant or which must be taken to hay been admitted by him within the meaning of this rule. The admission itself if proved, ordinarily no other proof then is necessary. However, even on the face of the admission by the defendant within the meaning of this rule the Court may, in its discretion, require any fact so admitted D to be proved otherwise than by such admission, that is-to say that Court may require the plaintiff to adduce such proof of the fact as it would have been necessary for him to adduce if no such admission had been made. This power, which has been conferred upon the Court by the proviso to Order VIII, rule 5, is not a new one. Similar power is conferred in the Evidence Act I of 1872. The proviso to the rule, in fact, is reproduction of the proviso to section 58 of the Evidence Act. That section runs as follows:- ' No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time, they are deemed to have admitted by their pleadings: Provided that the Court may; in its discretion, require the facts admitted to be proved otherwise than by such admissions.
13. The proviso to section 58 as well as the proviso to Order VIII, rule 5 of the Code of Civil Procedure indicates the intention of the Legis lature that the pleadings in our country ought not to be construed with the same strictness as in England. Under this principle, the defendant has bee allowed under special circumstances to traverse at the hearing allegation in the plaint which he had omitted to traverse in his written statemen and the Court has been given the discretion to insist for evidence even after admission.
14. It should be remembered that admission made in written statement has different legal significance than admissions generally. Secretor to Government (West Pakistan now N.-W. F. P.
Departmet of Agriculture and Forests, Peshawar and others v. Kazi Abdul Kafil (1) is an authority on the point. In this case Kazi Abdul Kafil, a contractor, was allowed by the Government, vide a contract entered into by the parties, namely, the Secretary to the Government of the Province of West Pakistan and Forests on the one hand and Kazi Abdul Kafil on the other hand to cut from the Neel Ban forest, Tehsil Mansehra, N.-W. F. P. Certain cft. Of timber for consideration of Rs, 11,99,000 Kazi Abdul Kafil, for certain reasons beyond his control, could not complete the whole of the operation with the result that he sought from the Chief Conservator of Forests extension of time on the basis of a policy letter, dated 20-7-19(9. His application was granted by the Chief Conservator of Forests, vide his order dated 30-7-1967. But the office of the Conservator of Forests, Abbottabad, through which the said order was meant to be communicated to him never informed him and consequently he could not resume the rest of the operation which had been stopped on the expiry of the contract period, namely, August, 1966. Faced with this situation, Kazi Abdul Kafil filed a suit against Government impleading therein Chief Conservator of Forests and others as defendants for declaration that he is entitled to continue the
(I) PLD 1978 SC 242 operation without interference by the Government or their functionaries. The trial Court as well as the High Court found in favour of Kazi Abdul Kafil. It may be stated here that in the written statement no objection was taken by the Government that the Chief Conservator of Forests was not a competent authority to extend the time. The Supreme Court, therefore, showed full agreement with the view taken by the High Court that the Chief Conservator of Forests was the competent authority for extending the period of contract: especially when the contract is wholly silent on the point. The contention of the learned Advocate appearing on behalf of the Government before the Supreme Court was that the implied admission made in the written statement that the Chief Conservator of Forests was competent to extend the time was factually incorrect and that in order to get rid of the same, the appellant-Government had filed in the Trial Court an application under Order VI, rule 17 praying for the amendment of the written statement but the same was wrongfully rejected. The contention of the learned counsel was repelled with the observation:- ' It is well settled that admissions made in the written statement have altogether different legal significance than admissions generally. In this respect reference may be made to Order VIII, rule 5, C. P. C. Which runs as under:- ' Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: ' Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
15. Where a material fact stated in the plaint is denied or is not admitted in the written statement, the Court must frame an issue on th fact. The law, however, is that if proper issues are not framed; it is an irregularity which may or may not be a material one. If such omission has effected the dismissal of the case on merits, it will be ground for remanding the case for a new trial but if on the other hand the parlie have not been prejudiced in the case notwithstanding the omission t frame the issues, the decision will not be set aside or the case remanded for retrial. But where on the basis of allegation made in the plaint or challenged in the written statement issues are not framed, the Court is competent to allow the parties to lead evidence on such points. It is also correct that if the first Court frames and draws wrong issues, the appellate Court should lay down proper issue and remand the case.
16. Though pleadings in Pakistan, as stated earlier, are not to be construed as strictly as elsewhere, neither party, however, will be allowed to set up at the hearing an entirely new and inconsistent case. The defendant must be held to be wedded to the state of facts alleged in the written statement or consistent therewith.
17. In the present case, it is the function of the trial Court to see as to whether in view of the non- denial of the facts, incorporated in para. 5 of the plaint by Mst. Bashir Begum, by the vendee, it would be said that the vendee has admitted the right of prior purchase of Mst. Bashir Begum as compared with the vendee and no further evidence required or Mst. Bashir Begum would still be put to proof. We do not want to usurp the power of the trial Court and decide it here. Similarly we leave it for the trial Judge to see as to whether the denial of Mst. Bashir Begum's right of prior purchase has not been sufficiently rebutted by Sh. Muhammad Saleem in his statement.
18. For elucidation of the above point, though for another purpose, it is to be noted that the vendee, Qurban Hussain, averred that Mst. Bashir Begum has alienated the whole of her share through sale or 'Hibba'. It is, thus, evident that both the vendors and the vendee admitted, though impliedly, that Mst. Bashir Begum had land in the `Khewat' and `Khata' out of which the land in suit has been sold.
Their case, however, is that she had disposed of the land by way of sale or 'Hibba'. Therefore, valid argument can be advanced that after the admission of vendee and vendors that Mst. Bashir Begum was the proprietor of some land in `Khewat' and "Khata' out of which the land in suit had been sold to the appellant, the burden to prove that the land out of the 'IChewat' and `Khata' was sold by Mst. Bashir Begum lay on the vendors and the vendee to prove in affirmative that the land was sold by Mst. Bashir Begum. Mat. Bashir Begum could not be asked to prove the negative that she has not sold the land.
19. We believe that when a person claims title in a land, burden of proof lies on him to prove his title to a property. But when the defendant admits his title but says that the property has been disposed of (as I done in this case), the burden shifts to the defendant to prove that th title no more remains with the plaintiff in the suit land.
20. Here we may have small statement on the question of burden of proof. Where there is no evidence on any particular point or where the evidence on both sides is so evently balanced or untrustworthy or is so ambiguous that the Court cannot come to a conclusion then the question of onus becomes material. The doctrine of 'onus probandi' applies to a situation when a judge determining the suit is left in doubt as to the point on which side the balance should fall in forming the conclusion. In case where there is little to choose between the evident of either side, that side must fail on whom the onus has been placed. So was held in Yellappa Ramappa Naik and others v.
Tippanna (1) and Harmes and another v. Hinkson (2).
' In Yeappa Ramappa Naik and others v. Tippanna it has been held:- ' In any case onus probandi applies to a situation in which the mind of the Judge determining the suit is left in doubt as to the point on which side the balance should fall in forming a conclusion. It does not happen that as a case proceeds the onus may shift from time to time. There never is any duty upon the part of the Judge to be blind to facts established before him, or, as in this case, to a whole category of facts extending over a long period of time and establishing the possession of property for generations as being in one line and not in two lines.
' In ffarmes and another v. Hinkson it was held:- ' The strict meaning of the terms 'onus probandi' is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. Onus as a determining factor of the
(1) AIR 1929 P C 8 (2) AIR 1946 P C 156 whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.
But where evidence has been adduced by the parties on an issue, the question of onus becomes immaterial as the conclusion to be reached does not then depend on the question of onus but depends on the evidence produced by the parties. The strict meaning of the term 'onus probandr is this if no evidence is given by the party on whom the burden is cast, the issue must be found against him. Onus as a determining factor of the whole case can only arise if the Court finds the evidence pro and con so evenly balanced that it can come to no determinate conclusion while determining the matter. But if the Court, after weighing the evidence. Can come to a determinate conclusion, the onus has nothing to do with it and need not be further considered.
21. Here we would like to make a tentative assessment as to whether there is any evidence to raise preponderance of probability that she was `Yakjadde of the vendors. Sh. Muhammad Saleem, as his own witness, in corss-examination, which appears at page 36 of File No, 115 entitled Sh.
Muhammad Saleem v. Lqbal Begum instituted on 9-5-1978 says :- {{URDU TEXT}}.
His statement, prima facie, shows the relationship of Fazal Alam, Fazal Karim, whose heirs have sold the suit land; and.That of Noor Alam who is the father of Mst. Bashir Begum. Fazal Alam, Fazal Karim and Noor Alam seem to be real brothers This witness also admits that respondent, Mst. Bashir Begum, and vendors are 'Shareek-e-khata and `Shareek-e-khewat'. It is also in his evidence that the vendee has no relation with the vendors as he hails from a different village.
22. On the face of this evidence, could the suit be dismissed under Order XVII, rule 3 of the Code of Civil Procedure without looking into the evidence. The answer is in negative. It was, in our view, incumbent for the Trial Court to look into the evidence of Sh. Muhammad Salem before recording the order of dismissal; especially when both the suits stands consolidated, and pass an order after looking into the material available on the file. Failure of the Trial Court to do so can hardly be appreciated. It is for the Trial Court to see as to whether Mst. Bashir Begum's relationship with the vendors is bettered by Sh. Muhammad Saleem in his statement as compared to himself and that of vendors and whether his statement also gets any corroboration from the written statement of vendors and vendee. We do not want to express ourselves on these points so as to prejudice the mind of the Trial Court. It is the Trial Court's function to apply its mind on it.
23. We are of the considered view that even without the issues, framed by the High Court, the matter could have been effectively adjudicated upon the issues already framed by the Trial Court.
Nevertheless as the issues framed would further clarify the matter and make the parties more alive on the controversial issues, we do not deem it proper to disturb them.
24. We have no quarrel with the case-law referred to by Ch. Muhammad Sharif Tariq that if a party omits to ask for an issue, he is debarred to claim such an issue later on but this proposition is hardly attracted in the present case. The party in this case has not asked for the issues; rather it was the High Court who suo motu felt desirable to frame the issues. No valid argument can be advanced to contest the settled proposition that the High Court or for that matter any Court seized of the case is competent to frame any issues or issue arising out of them pleadings which, according to the Court, is necessary for disposal of the case. The case-law, therefore, referred to us need not be discussed as it has no similarity with the facts of the present case.
' This appeal, therefore, for somewhat different reasons advanced by the High Court, fails and is dismissed herewith with costs. The Trial Court, however, would decide the case on the basis of the observations made above.