Tuesday, 10 March 2020

Whether court can permit further examination of witness after his cross-examination?

Perusal of the evidence of the concerned photographer indicates that he
had clearly deposed that he had brought the memory card as well as compact disk
with him in Court. The trial Court however marked the photographs as Articles as
there was no certificate in terms of Section 65 B (4) of the said Act. It is seen that
on the same day, the plaintiff moved the application at Exhibit 104. The trial Court
ought to have allowed that application in the light of the examination-in-chief of the
photographer in which he had stated that he had brought the memory card and the
compact disk in Court. There is no question of wiping out any admission in the
cross-examination in the light of the fact that the photographs had been marked as
Articles. Moreover, the deposition of the said photographer as a whole would have
to be considered so that the aspect of wiping out admission if any is taken care of.
The trial Court was therefore not justified in rejecting the said application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4298/2019

Vasant Janrao Gaoner Vs  Rajkanya  Manikrao Ughade


CORAM : A.S.CHANDURKAR, J.
DATED : 24.09.2019


The respondent has been duly served pursuant to the notice issued by
this Court. The respondent has however not chosen to contest the writ petition.
2. Rule. Heard finally.
3. The challenge raised by the petitioner who is the original plaintiff in this
writ petition is to the order dated 07.03.2019 passed by the trial Court below
Exhibit 104 thereby rejecting the application that was moved by the plaintiff seeking
permission to lead further evidence of the photographer in question who was
examined on the same day.

4. The suit as filed is for declaration and perpetual injunction with regard
to the rights of the plaintiff over the agricultural fields situated at Mouza-Chekbandi.
On 14.02.2019 the plaintiff examined his fourth witness below Exhibit 102. The
said witness was a photographer. He placed on record two photographs and further
stated that he was having memory card and compact disk containing those
photographs. The same were also brought in the Court. The trial Court while
recording his evidence observed that since requisite certificate under Section 65-B
(4) of the Evidence Act, 1872 (for short, the said Act ) was not produced, the said
photographs were marked as Articles. After cross-examination of that witness, the
plaintiff on the same day moved an application at Exhibit 104. He sought
permission to lead additional evidence with regard to the certificate in respect of the
memory card and compact disk. The trial Court rejected that application by
observing that granting such permission would result in washing out the effect of
the cross-examination. Being aggrieved, the said order has been challenged in the
present writ petition.
5. Shri S.S.Solat, learned counsel for the petitioner submitted that in his
deposition the witness had specifically stated that he was in possession of the
memory card as well as the compact disk which were brought in Court with regard
to the photographs in question. The trial Court however marked those photographs
as Articles as there was no certificate as contemplated by Section 65 B (4) of the
said Act. He submitted that on the same day the application seeking permission to
lead additional evidence was moved. The same was liable to be allowed. There was
no question of washing out the cross-examination in view of the fact that the
photographs were already marked as Articles. Hence the impugned order was liable

to be set aside.
6. Perusal of the evidence of the concerned photographer indicates that he
had clearly deposed that he had brought the memory card as well as compact disk
with him in Court. The trial Court however marked the photographs as Articles as
there was no certificate in terms of Section 65 B (4) of the said Act. It is seen that
on the same day, the plaintiff moved the application at Exhibit 104. The trial Court
ought to have allowed that application in the light of the examination-in-chief of the
photographer in which he had stated that he had brought the memory card and the
compact disk in Court. There is no question of wiping out any admission in the
cross-examination in the light of the fact that the photographs had been marked as
Articles. Moreover, the deposition of the said photographer as a whole would have
to be considered so that the aspect of wiping out admission if any is taken care of.
The trial Court was therefore not justified in rejecting the said application.
7. Accordingly, the order dated 07.03.2019 passed below Exhibit 104 is set
aside. That application below Exhibit 104 stands allowed. The trial Court shall
proceed further in terms of the prayer made in that application and also grant
liberty to the defendant to cross-examine the witness on that aspect.
8. With these directions, the writ petition is allowed and disposed of. No
costs.
JUDGE

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