* 1 * W.P. 432.2005 30.9.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 432 OF 2005 Shri. Rajendra Baburao Kadam .........Petitioner V/S. Chandrashekhar Suryakant Kadam .........Respondent * * * * * * Mr. Amit Borkar, Advocate for the petitioner. None for the respondent. Coram : Smt. R.P. SondurBaldota, J. 30 September, 2010. P.C. : 1. The petitioner herein who is the respondent in Civil Appeal No. 372 of 2003 arising out ouf Regular Civil Suit No. 1184 of 1999 files this petition under Article 227 of the Constitution of India for quashing and setting aside of the order dated 6th December, 2004 passed by the District Court, Pune. 2. The factual matrix of the petition is as follows :- . The respondent filed Regular Civil Suit No.1184 of 1999 * 2 * W.P. 432.2005 30.9.2010 against the petitioner for dissolution of the firm by name K.K. Engineers and for its accounts. The petitioner contested the suit contending, inter-alia, that the firm by name K.K. Engineers was not a partnership firm but a proprietary concern of the petitioner. During the course of trial in the suit, the respondent had sought to produce zerox copy of the partnership deed by filing the application dated 21st February, 2003. The trial court by its order dated 3rd March, 2003 had permitted the respondent to lead secondary evidence by producing certified copy of the partnership deed. This liberty however was not exercised by the respondent and neither any secondary evidence was led nor certified copy of the partnership deed produced. The trial court by its judgment and order dated 23rd April, 2003 dismissed the suit. Being aggrieved by the judgment and decree of dismissal, the respondent filed Civil Appeal No. 372 of 2003 on 18th June, 2003. In that appeal, he once again made an attempt to produce zerox copy of the partnership deed in evidence by filing the application at Exhibit-11. The application was contested by the petitioner by filing his say dated 21st October, 2004. After hearing the submissions from both the sides, the District Court by * 3 * W.P. 432.2005 30.9.2010 the impugned order allowed the application. 3. Perusal of the impugned order shows that there are no reasons whatsoever stated therein for granting the application. The learned Judge has merely stated that on careful perusal of the record and “ very subject matter of the suit, as well as, evidence brought on record, I find force in this application. The concept of exhibiting the documents and proving the contents of the documents is required to be bear in mind while assessing the entire evidence.” Mr. Borkar, the learned counsel for the petitioners submits that the impugned order is patently erroneous and has resulted into miscarriage of justice. The order permits the respondent to produce xerox copy of the deed of partnership at the stage of appeal without there being any application under Order 41 Rule 27 Civil Procedure Code. Any evidence to be produced for the first time in the appellate proceedings must satisfy the test of Order 41 Rule 27 Civil Procedure Code i.e. the applicant must plead and establish that (i) there was refusal on the part of the trial court to admit evidence which ought to have been admitted; or (ii) the applicant establishes that despite due diligence the evidence was either not within his * 4 * W.P. 432.2005 30.9.2010 knowledge or could not be produced by him at the time of trial; or (iii) the appellate court requires a document to be produced; or (iv) for any other substantial reason. Perusal of the application at Exhibit-11 shows that it is not an application filed under Order 41 Rule 27 Civil Procedure Code. The application simply requests that the respondent be allowed to produce zerox copy of the deed of partnership. Therefore, the application as filed was completely misconceived and ought to have been rejected on that ground alone. Secondly, the respondents sought to produce secondary evidence, i.e. zerox copy of the partnership deed without satisfying the conditions forthwith in Section 65 of the Evidence Act. Section 65 permits secondary evidence only in cases of seven circumstances specified therein. None of the circumstances had even been referred to in the application filed by the respondent. In the circumstances, the order impugned in the petition is wholly unsustainable. The petition therefore succeeds. The rule is made absolute in terms of prayer clause (b). [Smt. R.P. SondurBaldota, J]