A person summoned to produce a document under Sec. 65-B of the Evidence Act does not become a witness and cannot be cross examined unless and until called as a witness.

JUDGMENT

MANISH PITALE,J. - By this Writ Petition, the original plaintiffs are before this Court challenging an order passed by the Court of Civil Judge, Senior Division, Mapusa, whereby an objection raised on behalf of the petitioners regarding the questions put in cross examination to the witness of the plaintiff for producing photographs and supporting certificate/affidavit under Sec. 65-B of the Indian Evidence Act, has been rejected and cross examination has been permitted regarding the matter beyond the scope of such certificate. The petitioners invoked Sec. 139 of the Evidence Act to contend that since the said witness was summoned to produce the documents i.e. the photographs and supporting certificate under Sec. 65-B of the Evidence Act, he could not have been cross examined beyond formal identification of the photographs and signature on the certificate.

2. On the other hand, it is case of the respondents that Sec. 138 of the Evidence Act applies and that the cross examination could not be confined to the facts to which the witness testified in his examination in chief.

3. The petitioners have filed a Civil Suit against the respondents for declaration that Will dtd. 15/11/2018 is null and void and also for grant of permanent injunction restraining the respondents from alienating the properties that were subject matter of the said Will Deed. On the question of temporary injunction, the matter travelled up to this Court and by order dtd. 16/6/2021 passed in Appeal from Order no. 1/2020, this Court directed the suit to be disposed of within a period of six months, which period expires in December, 2021. Hence, the learned counsel for the parties submitted that there was urgency in the matter and consequently the Writ Petition was taken up for disposal at the admission stage.

4. The petitioner no. 1 i.e. the original plaintiff appeared as a witness in support of prayers made in the suit. During the process of recording of his evidence, the petitioner produced several photographs clicked by his son from his mobile phone camera. The photographs were referred to as X-5 (Colly). The petitioner produced the said photographs along with certificate under Sec. 65-B of the Evidence Act in the form of an affidavit sworn by his son who had taken the photographs. The respondents objected to the production of the said photographs on the ground that the certificate under Sec. 65-B of the Evidence Act, produced in the form of affidavit, could not be taken on record because the said certificate/affidavit was not signed by the petitioner himself.

5. It appears that in this backdrop, the petitioner called his son to depose in support of the said certificate/affidavit marked as Exh. 82, so that the photographs could be taken on record and the objection raised on behalf of the respondents could be answered.

6. On 13/8/2021, the son of the petitioner appeared before the Court below and he tendered the aforesaid affidavit at Exh.82, identifying his signature on the same. On this basis, the Court took on record the photographs relying on the said affidavit/certificate, thereby marking the photographs as C-93(colly). At this stage, the learned counsel representing the respondents started cross examination of the son of the petitioner as PW2. When the counsel started asking questions to the son of the petitioner beyond the facts pertaining to the clicking of the photographs and issuance of the certificate in the form of affidavit under Sec. 65-B of the Evidence Act, marked as Exh. 82, the learned counsel appearing for the petitioners raised an objection to the effect that the said witness ought not be cross examined beyond the certificate and photographs. In response, the counsel for the respondents claimed there could be no limit for cross examination.

7. The Court below passed the impugned order on the aforesaid objection raised on behalf of the petitioner and held as follows:-

"Order : Since, the witness who is in the box is the son of the pla