MEHTA, J. - (1.) IN both these revision petitions, which are directed against the order dated 20. 9. 89 by which the learned Civil Judge has rejected the applications filed by the petitioners under Order 13 Rule 2 C. P. C. , following questions have been referred by a learned Single Judge for decision by a Division Bench. (1) Whether a subordinate Court should not record reasons for refusing documentary evidence sought to be adduced under Order 13 Rule 2 C. P. C. even though good cause has been shown for such late production and the document is material one? (2) Whether no revision petition would lie against the order by which the subordinate court has refused to accept documentary evidence under Order 13 Rule 2 C. P. C. notwithstanding the fact that good cause has been shown for late production and the document is of vital material importance?
(2.) IN order to answer the questions referred to the Division Bench, it will be proper to briefly narrate the facts, which are common to both the revision petitions. On 29. 8. 1984, the non-petitioner filed a suit for pre-emption of the disputed property and a portion of Haveli, two storied described in paras 1 and 2 of the plaint against the petitioners with the averments that the petitioner No. l and the non- petitioners are brothers and the non-petitioner has got half share in the disputed Haveli as per the registered family settlement dated 26. 9. 1981 which is comprised of joint chowk-pol and as such the petitioner has got a right of pre-emption in the disputed property. It was further averred in the plaint that petitioner No. 1 has sold a portion of the disputed property to the petitioner No. 2 vide registered sale deed dated 24. 7. 84 for a consideration of Rs. 10,000/- without giving any notice to him and therefore prayed for a decree of right of pre-emption in lieu of Rs. 10,000/- and for possession accordingly. Petitioners filed their separate written statements on 25. 2. 1985 and 25. 1. 1985 respectively and denied the averments of the plaint in toto. In para No. 10 and 14, it was specifically contended by the petitioners that petitioner No. 1 had dire necessity of money and is a near relative of the petitioner No. 2 being brother-in-law of petitioner No. 2. Petitioner No. 1 and the non-petitioner came to Bhagwati Lal and asked about the necessity of Rs. 20,000/ -. Since the matter related in between the near relatives, therefore, it was agreed between the petitioners. It was agreed that petitioner No. 1 will execute a registered sale deed in the name of the petitioner No. 2 and in case the money is returned back with interest, the petitioner No. 2 will re-register and get it resold in favour of petitioner No. 1. According to the petitioner, Bhagwati Lal gave Rs. 20,000/- to the Petitioner No. 1 and got executed a registered sale deed for a consideration of Rs. 10,000/-in his name for the upper storey and for the same consideration of lower storey in the name of his son Navratan. An agreement was also executed by petitioner No. 1 in favour of Bhagwatilal to the effect that the petitioner No. 1 will return the aforesaid amount with interest within a month then he will get executed a registered sale deed in favour of petitioner No. 1. The petitioner No. 1 returned the aforesaid amount of Rs. 20,000/- to Bhagwatilal with interest, who in turn executed a registered sale deed in favour of petitioner No. l. Learned trial court framed issues. Before the evidence of the plaintiff started, the petitioner No. 1 moved an application on 24. 7. 89 under Order 13 Rule 2 C. P. C. read with Section 151 C. P. C. for taking in evidence two documents i. e. an agreement dated 25. 7. 84 executed between Bharosilal and Bhagwatilal and the registered sale deed dated 4. 9. 89 in suit No. 10/89. In his application, the petitioner No. l has stated that the documents sought to be produced in evidence are necessary for the proper decision of the suit. It was submitted that the documents are genuine. They were not in power and possession of the petitioner at the time of framing of issues and therefore, they could not be produced. The documents werein possession of the wife of petitioner No. 1 who had kept them in her maternal home which were mixed with some other articles and could not be traced out earlier. When the petitioner went to attend a marriage and stayed at their maternal house, the documents were searched and traced and, therefore, they were being produced with the application. It was also stated that the petitioner's evidence had not yet started and, therefore no prejudice will be caused to the plaintiff-non-petitioners. A reply to the application was filed by the non-petitioner and after hearing the parties, the learned trial court dismissed the applications filed by petitioners No. 1.
(3.) IN order to answer the two questions referred by the learned Single Judge, we may notice the provisions of Order 13 Rule 2 C. P. C. and Section 115 C. P. C. "o. XIII, r. 2 C. P. C. Effect of non-production of documents: - (1) No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of r. 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the court for the non-production thereof; and the court receiving any such evidence shall record the reasons for so doing. (2) Nothing in sub-rule (1) shall apply to the documents:- (a) Produced for the cross-examination of witnesses of the other party, or (b) handed over to a witness merely to refresh his memory. " "s. 115. Revision : (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears : - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it think fit. Provided that the High Court shall not, under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where - (a) the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceeding. or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto. Explanation: - IN this section, the expression 'any case decided' includes only an order made, or any order deciding an issue, in the course of a suit or other proceedings. " A perusal of order 13 Rule 2 of the Code of Civil Procedure shows that it does not provide for any particular form in which the order of the court is to be passed. The object of Order 13 Rule 2 C. P. C. is merely to prevent late production of documents, so that it may not cause injustice to either of the parties. The provision however cloths the court with discretion to allow production of documents, if it is satisfied that good cause has been shows to its satisfaction. This provision can be read as divided into two parts. The first part contains a prohibitive clause that no documentary evidence in possession or power of any party which should have been produced in accordance with the requirement of Order 13 R. 2 C. P. C. but has not been so produced, shall be received at any subsequent stage of the proceedings. In the second part, a discretion has been conferred on the court to permit production of such documents at a stage later than one envisaged by Order 13 Rule 2 C. P. C. if good cause has been shown to the satisfaction of the court, for non-production of such documents. There is a further rider in the second part and this rider is that the court receiving such evidence shall record reasons for doing so. The provision can be read in yet another manner. Ordinarily, the court shall not receive documentary evidence in possession or power of any party at a stage subsequent to the stages as specified in Order 13 Rule 1 C. P. C. , if such document has not been produced earlier, and unless the court is satisfied that there was good cause for non-production of such documentary evidence. If the court allows the production of documentary evidence at a stage subsequent to the one specified in Order 13 Rule 1, it shall record reasons for doing so. The provision clearly confers a discretion on the competent court to receive documentary evidence at a later stage of the proceedings, if it is satisfied that there existo good cause, but the exercise of the discretion must be evidenced in the reasons which the court is required to record in support of its order. The discretion which vests in the court as per the plain language of Order 13 Rule 2 C. P. C. is only hedged with one condition that the court must feel satisfied about the existence of a good cause. The party which wants to produce documentary evidence at a stage subsequent to the stage specified in Order 13 Rule 1 must satisfy the court that there exists a good cause for non-production of the documents and the court must indicate in its order the reasons by which it has felt satisfied that good cause has been shown for non-production of documents at the earlier stage. It is very much clear from the language of the rule itself that the court before which an application is made under Order 13 Rule 2 must apply its mind to the reasons or cause given by the applicant for failure to produce documents in accordance with Order 13 Rule 1. If the court is satisfied that good cause exists, it can allow production of documents and in doing so. it must record reasons. Once good cause has been shown to the satisfaction of the court, it cannot arbitrarily refuse to receive such documentary evidence. If it declines to receive documentary evidence, then too, it is required to record reasons. That is very much implicit in the scheme of Order 13 Rule 2 C. P. C. If good cause is shown by a party for its failure to produce the documents in accordance with the requirement of Order 13 Rule 1 the court cannot without giving reasons decline to receive documents. The satisfaction of the court about the existence or non-existence of good cause has to be indicated in the order itself. The order passed under Order 13 Rule 2 can be challenged in different ways. As will be shown hereinafter, in our opinion, a revision petition is maintainable under Sec. 115 of the Code of Civil Procedure against an order passed under Order 13 Rule 2 C. P. C. That apart such an order can be challenged even in appeal filed under Section % C. P. C. against the final judgment and decree which may be passed by the court. If the order is passed without reasons the court will be left to probe in dark or to make a fishing and rowing enquiry about the reasons which led to the passing of the order by the court for its refusal to receive documentary evidence despite the fact that good cause is shown. On the basis of development, which has taken place during last 3 decades, it is now one of the settled principle that even quasi-judicial orders must be reasoned order unless requirement of recording of reasons is dispensed with by specific Legislative enactment. Such exclusion can also be inferred by necessary implication by virtue of the subject matter, the scheme and the provisions of the enactment. In Simens Engineering and Manufacturing Company Ltd. vs. Union of India (1) the Court was dealing with an appeal against the order of Central Government on revisional application under a Sea Customs Act, 1878. In that case, the Supreme Court has laid down the following principle of law: - "it is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. If courts of law are to be replaced by administrative authorities and tribunals as indeed, in some kinds of cases, with the proliferation of administrative law, they may, have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order, is like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. " ;