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Whether court should permit production for photograph for the purpose of confronting plaintiff’s witness?

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)

C.R.A. No. 816 of 2000

Decided On: 07.09.2000

Herald Prashant Lal
Vs.
Dorthy

Hon’ble Judges/Coram:A.M. Khanwilkar, J.

Citation: 2001(1) ALLMR 152

1. Rule. By consent, Rule made returnable forthwith. Heard both the sides.

2. The only question which requires consideration in this case is whether the Court below was right in rejecting the application Exh. 91 preferred by the applicant for permission to place photographs on record which were necessary for the cross-examination of plaintiffs witness No. 1. The Court below has rejected the said application on the ground that no reason is given by the defendant for late production of the said photographs and that negatives have also not been produced. According to the trial Court, the photographs which were sought to be produced, could be of any function. The trial Court further held that since execution of Will is admitted, production of the said photographs was wholly irrelevant.

3. The learned counsel for the applicant contends that the photographs were produced in the course of the cross-examination of plaintiff’s witness No. 1 only with a view to confront him with the assertion made by him in the deposition that he did not attend any function in question. According to him, the relevant provisions applicable for such situation would be sub-rule (3) of Rule 8A of Order VIII of the Code of Civil Procedure, 1908, which permits production of document at the time of cross-examination of the plaintiffs witness. It is therefore, submitted that the Court below has clearly overlooked this provision while deciding the application below Exh. 91. On the other hand, the learned counsel for the non-applicant, besides the reasons assigned by the trial Court, also relied upon Order XVIII, Rule 17A to contend that it was not open to the plaintiff to produce document at such belated stage.

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4. Having considered rival arguments, I am of the view that the Court below has clearly overlooked the provisions of Sub-rule (3) of Rule 8 A of Order VIII of Civil Procedure Code, which entitles the applicant to produce the document during the cross-examination of the plaintiffs witness. The Court below therefore, ought to have permitted the applicant to produce the said document as the same was being produced for the limited purpose of confronting the plaintiffs witness No. 1. In support of this submission, reliance was placed by the learned counsel for the applicant on the decision reported in MANU/TN/0188/1984 : AIR 1984 Mad 14 para 8, which according to him has directly considered this point.

5. For the reasons indicated above, the impugned order deserves to be set aside and consequently application Exh. 91 is allowed. It would be, therefore, open to the applicant to produce the said document at the time of cross-examination of plaintiff’s witness No. 1 as observed above. Revision application is, thus allowed.

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