Back
High Court Of Rajasthan
Judgename : Dutta Sharma
Nanu Ram - Appellant
Versus
Vardichand - Respondent
Civil Revision No. 736 of 1974
Decided On : 04/15/1978
CIVIL PROCEDURE CODE, 1908 - ORDER XIII RULE 2 - ADMISSION OF DOCUMENTARY EVIDENCE - COURT'S DISCRETION - JUDICIAL EXERCISE - REJECTION OF DOCUMENTS - IMPROPER EXERCISE OF DISCRETION - DOCUMENTS PRODUCED SOON AFTER SETTLEMENT OF ISSUES - NO EVIDENCE RECORDED - ADDITIONAL ISSUE FRAMED - OPPORTUNITY TO ADDUCE ADDITIONAL EVIDENCE - DOCUMENTS RELEVANT TO ADDITIONAL ISSUE - APPLICATION NOT VEXATIOUS OR DILATORY - GOOD CAUSE SHOWN FOR LATE PRODUCTION - NO COUNTER-AFFIDAVIT TO CONTROVERT FACT OF ILLNESS - DOCUMENTS TO BE RECEIVED IN EVIDENCE.
Fact of the Case:
Plaintiffs filed a suit for permanent injunction against defendants to restrain them from causing any interference with the construction of the western wall of the former's house. The defendants resisted the suit on several grounds, including the existence of a joint wall between the houses and the plaintiffs' lack of entitlement to alter it. The Munsiff framed 12 issues in the suit and rejected the plaintiffs' applications to decide the issue of court-fee in the first instance, admit documentary evidence at a later stage, and frame an additional issue relating to adverse possession.
Finding of the Court:
The court held that the Munsiff erred in rejecting the plaintiffs' application to admit documentary evidence at a later stage. The court found that the documents were produced soon after the settlement of issues, before any evidence was recorded, and that the plaintiffs had shown good cause for their late production. The court also noted that the Munsiff had framed an additional issue relating to adverse possession, which gave the plaintiffs the opportunity to adduce additional evidence.
Issues: 1. Whether the Munsiff erred in rejecting the plaintiffs' application to decide the issue of court-fee in the first instance? 2. Whether the Munsiff erred in rejecting the plaintiffs' application to admit documentary evidence at a later stage? 3. Whether the Munsiff erred in rejecting the plaintiffs' application to frame an additional issue relating to adverse possession?
Ratio Decidendi: 1. The issue of court-fee was a mixed question of law and fact and could not be decided in the first instance. 2. The Munsiff improperly exercised his discretion in refusing to receive the three documents produced by the petitioners. The documents were produced soon after the settlement of issues before evidence on any issue was recorded. Apart from this, the learned Munsiff after striking the issues framed an additional issue relating to adverse possession of the disputed house upon pleadings of the parties. It was his duty to give opportunity to the parties of adducing additional evidence oral or documentary on the additional issue. The petitioners could produce documents to prove this additional issue, which was subsequently, framed by the learned Munsiff on their application dated 22nd November, 1974. Over and above all, the application of the petitioners for the receipt of documents could not be said to be vexatious and dilatory in view of the affidavit of Nanu Ram petitioner that he was prevented by good cause, i. e. his sudden illness at Bombay from filing the documents in Court on 17th August, 1974 The non-petitioners have not put in any counter-affidavit to controvert the tact of illness of Nanu Ram at Bombay on 17th August, 1974. 3. The Munsiff did not err in framing an additional issue relating to adverse possession.
Final Decision: The revision-petition is partly accepted. The order of the Munsiff pertaining to the rejection of the plaintiffs' application dated 26th September, 1974 is maintained. The order of rejection of the plaintiffs' application dated 4th October, 1974 for receipt of three documents in evidence is set aside. The Munsiff is directed to receive the three documents in evidence and thereafter to give the non-petitioners a fair opportunity of adducing documentary evidence, if they like to do so.
2. The relevant facts giving rise to this revision-petition may be briefly stated as follows:-The petitioners instituted a suit for permanent injunction against Vardichand and Reva Shanker, non-petitioners, for restraining the latter from causing any interterence with the construction of the western wall of the former’s house. The non-petitioners resisted the suit filed against them by the petitioners on several grounds which are mentioned in their written-statement. Their main plea was that a joint wall already exists between the houses of the parries and the petitioners are not entitled to cause any material alteration therein so as to obstruct the free passage of air and light, through the ventilators of the walls, to the detriment of the easementary rights of the non-petitioners Upon pleadings of the parties the learned Munsiff framed as many as 12 issues in the suit on 17th August, 1974. Thereafter the petitioners filed the present three applications in the Court of the Munsitf on 26th September 1974, 4th October, 1974 and 22nd November, 1974. The application dated 26th September, 1974, related to issue No. 7, which was framed in the following words: -“Whether Court-fee is insufficient?” By way of this application, dated 26th September, 1974, the petitioners requested the learned Munsiff to take-up this issue No. 7 for decision in the first instance. The learned Munsiff rejected the application for the simple reason that the issue relating to sufficiency of the Court-fee was a mixed question of law and fact and so it could not be taken for decision in the first instance.
3. The second application filed by the petitioners on 4th October, 1974 was under Order XIII Rule 2, CPC for admission of documentary evidence at a later stage, i. e. after the settlement of issues. The good cause shown in the application for non-production of the documents was that Nanu Ram petitioner had gone to Bombay on 17th August, 1974, in connection with some cases pertaining to income-tax and sales-tax, where he suddenly fell ill and could not go to Bhinmal to file the documents on the date of hearing. Out of the three documents sought to be produced, two were rent notes of the house in dispute and one was a Farakti, i. e. deed of relinquishment alleged to have been executed by Hans Raj, father of the non-petitioner No. 1. The learned Munsiff rejected this application on the ground that no good cause for non-production of the documents on the first date of hearing was shown by the petitioners who had ample opportunity to produce them in the Court at the time or before the settlement of issues.
4. The third application filed by the petitioners was under Order XIV Rule 5, CPC for framing an additional issue relating to the plea of adverse possession of the disputed house set-up by them in their plaint. The learned Munsiff accepted this application and struck an additional issue in the following words:-
“Whether the plaintiffs have become owners of the disputed house by adverse possession thereof ?”. Aggrieved by the orders of rejection of their two applications dated 26th September. 1974 and 4th October, 1974, the petitioners have come up in revision-petition to this Court.
5. I have carefully gone through the record and heard Mr. J. M. Bhandari, learned Counsel for the petitioners. Neither the non-petitioners, nor any Counsel on their behalf has appeared before me although notices were duly served upon them. As regards rejection of the application of the petitioners dated 26th September, 1974, it may be observed that the only issue of law going to the root of the case and capable of being decided without recording evidence must be tried in the first instance and decision on the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
