Kalyan Dutta Sharma, J.
1. This civil revision-petition by Nanu Ram, Durga Shanker and Laxmi Kant is directed against an order of the learned Munsiff, Bhinmal, dated 23rd November, 1974, rejecting the three applications of the petitioners who are plaintiffs before him.
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 interference 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, C. P. C. 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, C. P. C. for framing an additional issue relating to the plea of adverse possession ot 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 issues of fact should be postponed after the legal issues have been determined. In the present case the learned Munsiff was of the view that the decision of issue No. 7 relating to sufficiency or insufficiency of the court-fee depended upon a question of fact, i. e. valuation of the wall of the house in dispute and so he passed an order that the question of fact, upon which the question of law relating to sufficiency of court-fee depended, must be decided first. In this view of the matter, the learned Munsiff committed no error in postponing the settlement of issue No. 7 until after the issue of fact relating to the value of the wall had been determined.
6. As for the rejection of the second application dated 4th October, 1974, I may say that under Rule 1 of Order XIII, C. P. C. the parties to the suit, are required to produce all documents in their possession or power at the first hearing. Under Rule 2 of Order XIII, C. P. C. a discretion is given to the court to receive documents produced at the later stage or to reject them on the ground of late production. The discretion has no doubt to be exercised in a judicial manner. In the present case, the learned Munsiff refused to receive three documents of the petitioners in evidence merely on the ground that they were not produced at the time or before settlement of issues, i. e. 17th August, 1974 and were, later on, produced on 4th October, 1974. In my opinion, the learned Munsiff exercised his discretion improperly in refusing to receive the three documents produced by the petitioners. The reason is that 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. Taking all these facts into consideration, I am of the view that the learned Munsiff acted improperly in refusing to receive the three documents filed by the petitioners soon alter the settlement of the issues.
7. The revision-petition is, therefore, partly accepted and while maintaining the order of the learned Munsiff pertaining to the rejection of the application of the petitioners dated 26th September, 1974, set aside his order of rejection of the petitioners' application dated 4th October, 1974 for receipt of three documents in evidence and direct the learned Munsiff 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. No order as to costs of this revision-petition.