Law Web: 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