1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1130 OF 2010 (Onkar Hemrajbhau Upwanshi & Ors. vs. Bhuwanlal Haribhau Upwanshi & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 17, 2010. Heard Shri Gode, learned counsel for the petitioners – plaintiffs and Shri Charlewar, learned counsel for the respondents – defendants. The defendants moved an application at Exh. 145 in Special Civil Suit No. 48 of 2005 and sought leave to lead secondary evidence about partition deed dated 10.04.1994. The request was opposed by the plaintiffs. The trial Court has by impugned order dated 16.12.2009 granted that request. Shri Gode, learned counsel has contended that the trial Court has erroneously considered the photo stat copy on record as Memorandum of partition though it was never the case of the respondent. He, therefore, argues that as the document placed on record is not a memorandum, it needed to be registered and in absence of registration, the application at Exh. 145 could not have been allowed. Shri Charlewar, learned counsel, on the other hand contends that the application of mind by the 2 learned trial Court is just and proper. I have perused the impugned order with the assistance of both learned counsel. The question whether it is memorandum of partition or then a partition deed effecting partition has not been gone into by the trial Court. Because of this assumption of memorandum of partition, it has not considered the need of resignation and overlooked its bearing in the matter. I, therefore, find that the impugned order suffers from non application of mind. The same is accordingly quashed and set aside. The application at Exh. 145 is restored back to the said Court with a direction to it to decide the same afresh after giving the parties an opportunity. The aspects pointed out above shall be considered by the Court below while deciding the application at Exh. 145. Writ Petition is thus allowed. Rule accordingly. No order as to costs. JUDGE *GS.