Madras High Court
P. Rama Srinivasa Rao vs Dr. N. Ragavan on 5 July, 2005
Equivalent citations: (2006)3MLJ625, 2007 (1) AJHAR (NOC) 145 (MAD.)
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This revision is preferred against the order made in O.S. No. 8165/1997 on the file of the XVIII Assistant City Civil Court, Chennai, dated 6.11.2003, allowing the marking of the Document/ Photograph during the cross-examination of PW-1. The Defendant is the Revision Petitioner.
2. O.S.No. 8165/1997:
Plaintiff has filed the suit against his own vendor viz., the Defendant, for Permanent Injunction and for declaration. Case of the Plaintiff is that he has purchased the suit property along with a small dilapidated superstructure in R.S. No. 42/2., Block No. 37, Ayanavaram village in Pursawalkam-Perambur Taluk by a Sale Deed dated 26.10.1995. Since then, the Plaintiff is in possession of the said property. The Plaintiff had obtained planning permit from the Corporation of Chennai in 1996. The Plaintiff has put up construction in the suit property. The Defendant and her husband had been causing interference to the progress of the construction work. The Defendant has not permitted the Plaintiff to plaster the outer side of the western parent wall of the property. The Plaintiff has got every right to plaster the outer side of the western parent wall of the property and if it is left unplastered, it would weaken the very stability of the building. The Defendant's husband and her son are even threatening the Plaintiff that they would demolish the western wall of the suit property. Hence the Plaintiff has filed the suit for--
(i) Permanent Injunction restraining the Defendant and her men from interfering with the Plaintiff's peaceful possession and enjoyment of the suit property;
(ii) for declaration that the Plaintiff has confined to the dimensions given in the Deed of Sale dated 26.10.1995 and that he has not encroached upon the Defendant's property on its Eastern side i.e. the Western side of the suit property;
and other reliefs.
3. Denying the allegations in the Plaint, the Defendant has filed the Written Statement contending that the Plaint prayer 'B' is unconscionable in law and not maintainable. According to the Defendant, Plaintiff has encroached upon a portion of the Defendant's property by erecting pillar for the above said construction, which the Defendant has objected. There are several illegalities committed by the Plaintiff in the construction of the building in the suit property. The Defendant had been objecting to the encroachment and illegal construction from the beginning. But under the guise of suggesting a negotiation, the Plaintiff has fraudulently put up illegal construction. The encroachment on the Defendant's property is to be removed. The Plaintiff having encroached into the Defendant's property and put up illegal construction is not entitled for the Permanent Injunction and also the declaration sought for in the prayer 'B'.
4. In the Trial Court, trial commenced. PW-1 - Plaintiff was examined. During his cross-examination, a photograph of the Plaintiff's constructed building was shown to him and sought to be marked through him. The Court declined the marking of the photograph through PW-1 observing that he had not taken the photograph and that it would be improper to mark the photograph during the cross-examination of PW-1. The order of the Trial Court reads:
5. Aggrieved over the disallowing of marking of the photograph, during the cross-examination of the Plaintiff, the Defendant has preferred this revision. The learned Counsel for the Revision Petitioner inter alia contended that under Section 62, Explanation (2) of the Indian Evidence Act, photograph is the primary evidence which ought to have been admitted as evidence. It is the further contention that when the photograph with negative was sought to be produced, the lower Court ought not to have refused to admit the same as evidence. It is the further contention that 'relevancy' is different from 'admissibility' of a document. It is contended that photograph being a positive evidence ought to have been accepted in evidence and the learned Counsel prayed for a suitable direction to the lower Court. In support of his contention, reliance has been placed upon Pravinkumar Lalchand Shah v. State of Gujrat and Anr. 1982 Crl. L.J. 763.
6. Refuting the contentions, the learned Counsel for the Respondent/ Plaintiff has pointed out that this is the second round of litigation and the intention of the Defendant-Plaintiff is only to delay the trial proceedings. Submitting that Section 62 of the Indian Evidence Act refers only to the primary evidence, the learned Counsel has contended that the photograph cannot be marked through Plaintiff during his cross-examination and that the lower Court has rightly declined to admit the documents through PW-1 during his cross-examination.
7. Upon consideration of the contentions of both parties, the impugned Order, the following points arise for consideration in this revision:
(i) Whether the photograph could be marked through the Plaintiff (who is not the photographer who had taken the photo), during his cross-examination ? and
(ii) Whether the impugned Order declining to admit the photograph through PW-1 during his cross-examination suffers from any infirmity warranting interference ?
8. There could hardly be any denying that photograph is admissible in evidence, provided it is marked through a person able to speak to its accuracy. Section 62 of the Indian Evidence Act deals with Primary Evidence.
Primary evidence means the document itself produced for the inspection of the Court.
Explanation (2) to Section 62 reads:
Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
9. First portion of the Explanation refers to all copies made from the original by some mechanical process which ensures their accuracy. For e.g. Copies of Photography, lithography, cyclostyled, carbon copy, etc., photograph being made by mechanical process is admissible.
10. Contending that photograph is positive evidence and that the same is admissible, the learned Counsel for the Revision Petitioner placed reliance upon Pravinkumar Lalchand Shah v. State of Gujrat and Anr. 1982 Crl. LJ. 763, in which, it has been held:
A faint attempt was made to strictly interpret the provisions of Section of Section 173(5) by saying that it refers to documents, mainly statements recorded by the police and also documents on which the prosecution proposes to rely and therefore it would not cover the enlarged photographs on which the opinion was based. Under Section 3 of the Evidence Act 'document' is defined and in the illustrations words printed, lithographed or photographed are considered as documents. Further under the provisions of Section 62 of the Evidence Act, Explanation 2, where a number of documents are all made by one uniform process as in the case of... photography, each is primary evidence of the contents of the rest. So if reliance is placed on the photograph, it would be primary evidence. It is not that only the negative of the photograph would be the primary evidence but if the reliance is placed on the positive, it is discernible to the eye and from that the opinion is given it also forms part of the evidence on which the prosecution can be said to rely.
There could be no two opinion that a copy of the photograph is made by the mechanical process, which itself ensures the accuracy of such copy and hence admissible in evidence.
11. Main point for consideration is, can such a photograph be marked through Plaintiff during his cross-examination, by the Defendant. As noted earlier, the lower Court has observed :
It is the contention of the Revision Petitioner/Defendant that when the witness/PW-1 has admitted the photograph, the lower Court ought to have admitted the photograph and marked the document during cross-examination. Regarding the cross-examination on the documents, the learned Counsel for the Revision Petitioner has drawn the attention of the Court to the following passage in Murphy on Evidence, V-Edition at page 488:
If a witness, on being shown a document, asserts or admits that its contents are true, then those contents which he so adopts become part of his evidence. But the contents of an inadmissible document cannot be made evidence unless they are so adopted.
Placing emphasis on the above passage, the learned Counsel for the Revision Petitioner submitted that when the photograph had been admitted by the witness and the Document/Photograph being admissible in evidence, the lower Court erred in declining to mark the document and that the impugned Order declining to admit the document suffers from material irregularity.
12. To appreciate the merits of the above contention, we may consider marking of documents during cross examination by showing the documents to the witness. The documents in the possession of the cross-examiner may either be admissible in itself or inadmissible. In this case, the Document/ Photograph is an admissible document. Though the document is admissible, can the document be admitted in evidence through the Plaintiff who had neither taken the photograph nor at whose instance the document was marked. Undoubtedly, the document being shown to the witness, when the witness asserts or admits the same, the document could be marked through that witness. But the "photograph" cannot be equated to such categories of documents which could be marked through cross-examination of witness.
13. Whether a photograph is a correct reproduction of the original, whether it correctly depicts the picture of the location depends on many factors viz., correctness of lens, state of weather and time taken, photographic skill adopted by the photographer, accuracy of the angle, availability of light and such other factors. The proof of identity of the site, location, objects and persons in the photograph photograph could be admitted in evidence only by examining the photographer.
14. Frequently, objections are being raised about the accuracy of the photographs on the ground of correctness of lens, light, focussing, skill of the photographer and such other aspects. The photograph is not something which contains some admissible contents to be marked through witnesses during cross-examination - say, for instance like containing the signature or writing of the witness who is in the box wherein he could assert or admit its contents. The witness who is cross examined can neither assert nor deny the contents or accuracy of the photograph. While so, the cross-examiner cannot insist for marking the photograph during the cross-examination of either the opponent or his witnesses.
15. If the photograph in the hands of the cross-examiner is marked during cross-examination, how could the party who called the witness could cross-examine the witness as to the accuracy of the photograph. Hence though the photograph is admissible, it cannot be marked during the cross examination of the opponent or his witnesses. It is always desirable to produce the photographs by examining the person who took the photographs or by the party who is relying on the photographs or at whose instance the photographs were taken. It cannot be marked during cross-examination of the opponent or his witnesses.
16. Generally, photographs are admissible only if the photograph has been properly verified on oath by a person able to speak to its accuracy. Photographs should not be admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record or at whose instance the photographs were taken.
Though the Plaintiff has admitted that the document is a photograph, the same cannot be marked through him since he has not taken the photograph.
assumes importance since the Plaintiff has denied his knowledge about the photograph. Whether the witness had made the statement or not, is the subject matter for consideration in the same application (if the application had been admitted).
19. This Court is not expressing any view on the merits or otherwise of the averments made by the Defendant in the above said application. Regarding the admissibility of the document the Court has got ample power and discretion to disapprove marking of the document through the witness during the cross-examination. Intervention of the Court in refusing to admit the photograph during the cross-examination of PW-1 is correct and the proceedings regarding the evidence and refusal to allow the document to be marked through PW-1 does not suffer from any material irregularity warranting interference. This revision is bereft of merits and is bound to fail.
20. For the foregoing reasons, the order made in O.S. No. 8165/1997 (during the recording of evidence of the Plaintiff-PW-1) on the file of the XVIII Assistant City Civil Court, Chennai, is confirmed and this revision petition is dismissed. Consequently, CMP No. 18480/2003 is also dismissed. In the circumstances of the case, there is no order as to costs.
21. The learned XVIII Assistant Judge, City Civil Court Madras is directed to expedite the trial in O.S. No. 8165/1997 and dispose of the same expeditiously, in accordance with law.