1 WP 5042/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5042 OF 2010 Gool D. Gazdar .. Petitioner V/s M/s Reshma Constructions .. Respondent Mr. Amar Mishra i/b Mr. S.R. Mishra for the petitioner. Mr. G.S. Godbole i/b Mr. Sanjeev Mishra for the respondent. CORAM : D.G. KARNIK, J. DATE : 26TH JULY 2010 P.C. : 1. Rule, returnable forthwith. 2. Mr. Godbole waives service for the respondent. 3. Heard counsel for the parties. 4. By this petition, the petitioner challenges the order dated 7 January 2010 passed by the Appellate Bench of the Small Causes Court rejecting the petitioner’s composite application made under Rules 2, 3 and 27 of Order 41 of the Code of Civil Procedure (for short “the Code”). 5. Dealing first with the prayer made for permission to adduce evidence in appeal under Rule 27 Order 41 of the Code, learned counsel for the petitioner submitted that the petitioner wants to adduce 2 WP 5042/10 the documents which have been mentioned in Annexure-2 to the motion taken out before the Appellate Court. According to the petitioner, it was only after the coming into force of the Right to Information Act that the petitioner could get the copies of those documents. Copies were obtained after the decision of the suit and hence they could not be produced in the trial court and the production should be allowed. The suit was decided on 4 October 2005. Documents referred to by the petitioner relate to the period between 30 December 2003 and 25 June 2005. All the documents are prior to the date of the decision of the suit. There is no merit in the contention of the petitioner that he could not have got those documents until the Right to Information Act came into force because even without the Right to Information Act the petitioner could have prayed for issuance of witness summons and got those documents produced. In the circumstances, the contention of the petitioner that he could not have produced those documents in the trial court cannot be accepted. 6. As regards the other prayers in the application made before the Appellate Bench, they were for permission to add additional grounds in the appeal memo. As regards ground nos.1 to 9 which are sought to be added, I see no reason why such amendment was refused. Mr. Godbole for the respondent did not seriously object to the addition of ground 3 WP 5042/10 nos.1 to 9 in the annexure. As regards ground no.10, it says that the decree has been obtained by fraud upon the Court. The Supreme Court has held that fraud vitiates everything. If the decree has been obtained by fraud, it would be open to the petitioner to file a suit by giving necessary particulars of fraud. The appeal memo cannot be amended so as to make a bald allegation of fraud without any particulars of fraud. The pleading of fraud without any particulars is no pleading at all. Hence, ground no.10 cannot be allowed to be added by means of an amendment to the memo of appeal. 7. For these reasons, the petition partly succeeds. The petitioner is allowed to add ground nos.1 to 9 mentioned in Annexure 1 to the Interim Notice No.26 of 2009 taken out by him before the Appellate Bench of the Small Causes Court as grounds of appeal in the memo of appeal. However, rest of the order passed by the Appellate Bench is maintained. 9. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)