THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
CIVIL REVISION PETITION Nos.2260 and 2273 of 2022
COMMON ORDER:
Since both these revisions are arising out of one civil suit,
they are heard together and being disposed of by this common
order.
Challenging the order dated 26.09.2022 passed by the
learned Principal District Judge at Hanumakonda in
I.A.No.1215 of 2022 in O.S. No.171 of 2017, Civil Revision
Petition No.2260 of 2022 is filed.
Challenging the order dated 26.09.2022 passed by the
learned Principal District Judge at Hanumakonda in
I.A.No.1214 of 2022 in O.S. No.171 of 2017, Civil Revision
Petition No.2273 of 2022 is filed.
Revision petitioner is defendant No.2 and respondent No.1
herein is the plaintiff in O.S. No.171 of 2017. The said suit was filed by the plaintiff for recovery of amount of Rs.22,41,600/- from the defendants therein. Vide impugned common order dated 26.09.2022, the learned Principal District Judge had allowed the I.A.s filed by respondent No.1 herein, who is the plaintiff in O.S. No.171 of 2017, for reopening the evidence of DW.1 and to recall D.W.1 for further cross examination.
Brief facts which are necessary for disposal of the present revisions are that during the cross examination of P.W.2 on AAR, J 2 27.11.2021, P.W.2 was confronted with a single page of a calendar containing eight photographs. The witness in his cross examination has stated as under:
"... I can identify Venkat Reddy (Defendant no.2). The witness is shown 8 photos in a calendar and ask him to identify whether in this photos whether Venkat Reddy photo is there or not, witness identify 3rd photo from the Right side of the calendar as that of Venkat Reddy (Defendant no.2) herein."
The said calendar page was not marked as the counsel for the plaintiff had raised an objection for marking of the same as it was not a primary evidence and in such a situation the Advocate Commissioner, who was recording the evidence, has only put his initial. Subsequently, the trial Court vide order dated 01.09.2022 has considered the objections raised by the plaintiff and marked the same as Ex.B.1 and B.2. holding as under:
"Heard both sides regarding marking of document confronted to P.W.2 during cross examination. The advocate commissioner recorded cross examination of P.W.2 on commission on 27.11.2021. On that day on behalf of D2 a document was confronted to P.W.2. The said document contained 8 photos and it is part of calendar pertaining to July and August 2013. It appears from it that it pertains to Sri Chaitanya Junior College. P.W.2 was asked to identify whether the photo of Venkatreddy was there or not. P.W.2 identified third photo from right side of the calendar as that of D2 Venkat Reddy. The advocate commissioner put his initial over the said photo. The counsel for plaintiff AAR, J 3 raised objection for marking of the said photo of the paper stating that it was not primary evidence. Hence, the advocate commissioner did not exhibit the same. Under the proviso to XVIII, Rule (4) C.P.C. the objection raised during recording of evidence before the commissioner should be recorded by him and decided by the Court at the stage of arguments. Hence, both sides are heard regarding marking of the said document. It is submitted for defendant No.2 that P.W.2 in his chief examination affidavit in para 2 submitted that he knows the plaintiff and D2 and hence, he was asked to identify the photo of D2 in the said calendar and hence, the part of said calendar and photo can be marked and the person D2 will be primary evidence for identification and his photo will be secondary evidence and hence, it can be marked. On the other hand it is submitted for plaintiff that the entire document is not produced and it is only part of calendar and photo is not primary evidence and hence, it cannot be marked. In reply, it is submitted for D2 that the calendar is not the subject matter and hence, entire calendar need not be produced. P.W.2 admittedly in the evidence affidavit clearly mentioned at para 2 that he knows the plaintiff and D2. Hence, he can be asked to identify whether the photo of D2 was there or not in the part of calendar shown to him. The P.W.2 identified particular photo i.e., 3rd photo from the right side of the calendar as that of D2 and that portion was initiated by advocate commissioner. Hence the court is of the considered opinion the said part of the calendar and photo identified by P.W.2 can be marked as exhibits on behalf of defendants. Accordingly, they are marked as Exhibits B-1 and B-2 respectively. For hearing call on 02.09.2022."
Prior to the marking of the said document by the learned Principal District Judge on 01.09.2022, D.W.1 was examined and he was cross examined by the counsel for the plaintiff on AAR, J 4 28.06.2022. Thereafter, the IAs are filed by the plaintiff solely on the ground that Exs.B1 and B2 were marked subsequent to the closing of the evidence of D.W.1 and therefore the plaintiff did not have the opportunity to cross-examine D.W.1 on Exs.B.1 and B.2. The said IAs were allowed by the learned Principal District Judge. Questioning the same, the present revisions are filed.
Learned counsel for the petitioner has stated that the trial Court without adopting the correct procedure and the well established principles of law laid down by this Court as well as the Hon'ble Supreme Court has erroneously allowed the I.A.s filed by the plaintiff. Learned counsel has further stated that the plaintiff had every opportunity to cross examine the witness i.e. D.W.1 on 28.06.2022, by which time the Exs.B.1 and B.2 were on record though not formally marked, but the present IAs for re-opening and recalling the witness were filed only as an afterthought to fill up the lacunae in the cross-examination, which is impermissible under the law. In support of his submissions, the learned counsel has relied on the judgments of this Court in Vadiraj Naggappa Vernekar (dead) through LRs v. Sharadchandra Prabhakar Gogate1 and A. Rama Mohan Reddy and others v. A. Vijaya Kumar and another2. 1 (2009) 4 SCC 410 2 2019 (1) ALD 398 AAR, J 5 Per contra, the learned counsel appearing on behalf of respondent No.1 has stated that Exs.B.1 and B.2 were neither on record nor marked at the time when D.W.1 was cross- examined on 28.06.2022. That it was only subsequently on 01.09.2022 that the said documents were marked by the Court below. Therefore, there was no opportunity for the plaintiff to cross examine D.W.1 on Exs.B.1 and B.2. Learned counsel has stated that the learned Principal District Judge duly taking into consideration all the relevant facts has allowed the IAs. That there is no infirmity or irregularity in the impugned common order warranting any interference by this Court.
Perused the record.
Admittedly, in this case, at the time of cross examination of P.W.2, even though the document (calendar containing photographs) was confronted to the witness, the same was objected to by the learned counsel for the plaintiff and admittedly the said document was not marked by the Advocate Commissioner, who was appointed to record the evidence. Order XVIII Rule 4 of the Code of Civil Procedure provides that chief examination of the witness shall be on an affidavit and the same shall have to be furnished to the other side along with copies of the documents, which are relied by the said party. The proof and admissibility of such documents which are filed along with the affidavit shall be subject to the orders of the Court. It AAR, J 6 is only after the documents are marked that it can be said that the documents are admitted into evidence. Once the documents are admitted into evidence, the counsel appearing for the opposite side will have an opportunity for cross examine the witness in respect of those documents.
In Salem Advocate Bar Association, Tamil Nadu vs. Union of India3 and Ameer Trading Corpn. Ltd. V, Shapoorji Data Processing Ltd.,4 the Hon'ble Supreme Court has ruled that unless the deponent enters the witness box and confirms the contents of the chief affidavit, the same cannot be taken on record and the documents relied marked as exhibits. Once the affidavit of evidence is taken on record and the documents are marked, they will become part and parcel of the record of the case. The opponent or the other side, at the stage of marking, must raise an objection as to the admissibility of the document, which the Court has to decide by a judicial order. Once an objection is taken and the Commissioner records in the proceedings that the document was not marked due to the objection taken by the other side, the Court then has to give a finding on the objection taken regarding the admissibility of the document and once the Court decides the issue of admissibility 3 (2003) 1 SCC 49 : AIR 2003 SC 189 4 (2004) 1 SCC 702 AAR, J 7 then only it can be said that the document has been marked and taken on record.
Admittedly, in this case, when D.W.1 was cross examined on 28.06.2022, Exs.B.1 and B.2 were not there on record nor were they marked, but they were subsequently marked only on 01.09.2022. It is only after the documents are marked, the opposite party will have an opportunity to cross-examine the witness on the documents which are marked. If the documents are not marked, the question of conducting any cross- examination on those documents does not arise. Merely because the documents are there on the file, it cannot be said that the documents are taken on record.
Even though the learned counsel for the petitioner has relied on the judgments of this Court in Sharadchandra Prabhakar Gogate and A. Rama Mohan Reddy and others, the same are distinguishable from the facts of this particular case. This Court does not find any infirmity with the order passed by the trial Court. The reasons given by the trial Court are inconsonance with the well established principles of law and the law laid down by the Hon'ble Supreme Court. Therefore, this Court is of the opinion that there are no grounds for interfering with the impugned common order passed by the trial Court.
AAR, J 8 Accordingly, both the Civil Revision Petitions are dismissed. In view of the apprehension expressed by the learned counsel for the petitioner that the plaintiff taking advantage of the impugned common orders passed by the trial Court may try to fill up the lacunae in the evidence, it is made clear that any cross examination of the witness (DW.1) shall be confined only to Exs.B.1 and B.2.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ A.ABHISHEK REDDY, J Date : 17.02.2023.
sur Issue CC in two days.