This is a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, whereby challenge has been thrown to the order passed by the trial Court on 22nd April. 1976 and the revisional order passed by the Additional District Judge, Sheikhupura, dated 14th September, 1976, on an application for notice under Order XII. Rule 4, C. P. C., for admission of facts mentioned therein.
2. The notice was on behalf of the defendants dated 10th April, 1976, addressed to Malik Rashid Ahmad counsel for Muhammad Yaqub plaintiff. The notice consists of eight paragraphs. The plaintiff on the other hand submitted an application under Order XI, rule 7, C. P. C. Dated 14th April, 1976, wherein objection was raised that in fact the notice is not for admission of facts under Order XII, rule 4, C. P. C. But it consists of interrogatories under Order X1, rule 1, C. P. C. Which are irrelevant and scandalous. The trial Court, however, found that the paragraphs In the notice were not interrogatories but are facts. Which are required to be admitted and denied. . The plaintiff was directed to answer paragraphs 1 to 3 of the notice. It was further observed that paras. 4 to 8 were not relevant so far am admission or denial of the plaintiff is concerned and the facts may be otherwise relevant for the purposes of merits of the case and can be proved independently by defendants Nos. 2 and 3. The order was affirmed by the learned Additional District Judge.
3. Learned counsel for the petitioner in the first place argued that there is no power with the Court under Order XII, rule 4, C. P. C. To withhold the issuance of notice of particular facts to the other side whatever their nature may be. Form No. Ft of interrogatories prescribed under Order XI, rule4, C. P. C.
Is published in Appendix 'C' on page 324 of the Code of Civil Procedure published by Pakistan Law Journal, 1976 Edition, in which at Nos. 1 and 2 words "did not ate. Has not ate. Etc." are mentioned.
The notice to admit facts, prescribed under Order XII, rule 5, C. P. C. b published a1 No. 10, on page 326 of this book which opens with the words "take notice that the plaintiff (or defendant) in this suit requires the defendant (of plaintiff) to admit, for the purposes of this suit only. The several facts respectively hereunder specified; *****. The facts, the admission of which is required, are--
1. That M died on the 1st January, 1890.
2. That be died intestate.
3. That N was his only lawful son.
4. That O died on the 1st April, 1896.
5. That O was never married.
I have perused the relevant Forms. The finding arrived at by the learned trial Court was that the notice was not in the form of interrogatories but was one which required the admission or denial of certain facts un Order XII, rule 4, C. H. C. Be that as it may, such a finding has not bee challenged by the other side and as there is no grievance to the finding, n adverse view can be formed in theme proceedings.
4. The argument of learned counsel for the petitioner that a party can issue any notice under Order XII, rule 4, C. P. C. And the Court has to just act as a post office is without any substance, for, in such circumstances the performance of duties by the Court with dignity in order to avoid scandals and irrelevancy of facts can certainly fall within the purview of the discretion of the Court. I have made this observation which is certainly not injurious to any party because the parties are at liberty to prove certain facts and the burden of proof is always on the party which alleges the facts and it is then for the Court to decide whether the burden is discharged or not.
5. In view of my above observations I consider that the trial Court w not justified in withholding the admission or denial of facts mentioned in pare. 8 of the notice, for, neither it could be said that it is irrelevant to the facts of the case nor it is scandalous. The trial Court' has, therefore, acted illegally and with material irregularity and the Additional District Judge his wrongly refused to exercise jurisdiction under section 115, C. P. C.
The petition succeeds with the above observation: Parties are, however, left to bear their own costs.