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(2005) 07 MAD CK 0179

In the Madras High Court
Case No : C.R.P. No. 2446 of 2003

P. Rama Srinivasa Rao APPELLANT

Vs
Dr. N. Ragavan RESPONDENT

Date of Decision : 05-07-2005

Acts Referred:
Civil Procedure Code, 1908 (CPC) — Section 151
Evidence Act, 1872 — Section 173(5), 3, 62
Citation : (2006) 3 MLJ 625
Hon'ble Judges : R. Banumathi, J
Bench : Single Bench
Advocate : P. Rathinadurai, For D. Saravanan, , Y.K. Rajagopal,
Final Decision :

Judgement
R. Banumathi, J.
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 u/s 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 Cri. 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 Cri. 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. u/s 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.
17. In the case in hand, document is the photograph of the new construction by the
Plaintiff. Since the photograph has been produced by the Defendant, the
photographer must have been engaged by the Defendant, who would have taken
photographs according to the instruction given by the Defendant. Plaintiff cannot
speak to the correctness/accuracy or otherwise of that photograph. Mere admission
of the Plaintiff that it is a photograph would not amount to correctness/accuracy of
the photography or the angle of the building thereon. 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.
18. Though the Plaintiff has admitted the photograph immediately in the evidence,
Plaintiff has stated Thus the Plaintiff seeks to disown his earlier statement. The
learned Counsel for the Revision Petitioner has submitted that the Defendant had
raised objection regarding the above statement and that the Defendant has filed
petition u/s 151, C.P.C. for deleting the portion The said petition is said to be
pending disposal. However, it is to be pointed out that the above statement
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.