NANU RAM Vs. VARDICHAND

JUDGEMENT

(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.