Photograph is primary evidence and it is admissible in evidence.

This revision is preferred against the order made in O.S.No.8165/1997 on the file of the XVIII Assistant City Civil Court, Chennai, dated 06.11.2003, allowing the marking of the Document/Photograph during the cross-examination of PW-1. The Defendant is the Revision Petitioner.

2. O.S.No.8165/1997:

Plaintiff has filed the suit against his own vendor viz., the Defendant, for Permanent Injunction and for declaration. Case of the Plaintiff is that he has purchased the suit property along with a small dilapidated superstructure in R.S.No.42/2., Block No.37, Ayanavaram village in Pursawalkam-Perambur Taluk by a Sale Deed dated 26.10.1995. Since then, the Plaintiff is in possession of the said property. The Plaintiff had obtained planning permit from the Corporation of Chennai in 1996. The Plaintiff has put up construction in the suit property. The Defendant and her husband had been causing interference to the progress of the construction work. The Defendant has not permitted the Plaintiff to plaster the outer side of the western parent wall of the property. The Plaintiff has got every right to plaster the outer side of the western parent wall of the property and if it is left unplastered, it would weaken the very stability of the building. The Defendant's husband and her son are even threatening the Plaintiff that they would demolish the western wall of the suit property. Hence the Plaintiff has filed the suit for –

(i) Permanent Injunction restraining the Defendant and her men from interfering with the Plaintiff's peaceful possession and enjoyment of the suit property.

(ii) for declaration that the Plaintiff has confined to the dimensions given in the Deed of Sale dated 26.10.1995 and that he has not encroached upon the Defendant's property on its Eastern side i.e. the Western side of the suit property;

and other reliefs.

3. Denying the allegations in the Plaint, the Defendant has filed the Written Statement contending that the Plaint prayer 'B' is unconscionable in law and not maintainable. According to the Defendant, Plaintiff has encroached upon a portion of the Defendant's property by erecting pillar for the above said construction, which the Defendant has objected. There are several illegalities committed by the Plaintiff in the construction of the building in the suit property. The Defendant had been objecting to the encroachment and illegal construction from the beginning. But under the guise of suggesting a negotiation, the Plaintiff has fraudulently put up illegal construction. The encroachment on the Defendant's property is to be removed. The Plaintiff having encroached into the Defendant's property and put up illegal construction is not entitled for the Permanent Injunction and also the declaration sought for in the prayer 'B'.

4. In the trial Court, trial commenced. PW-1 - Plaintiff was examined. During his cross-examination, a photograph of the Plaintiff's constructed building was shown to him and sought to be marked through him. The Court declined the marking of the photograph through PW-1 observing that he had not taken the photograph and that it would be improper to mark the photograph during the cross-examination of PW-1. The order of the trial Court reads:

"g[ifg;glk; rhl;rpaplk; fhl;lg;gl;lJ/ g[ifg;glk; vd;W xg;g[f;bfhz;lhh;/ mtUila g[ifg;glj;ij mth; vLf;ftpy;iy vd;w fhuzj;jpdhy; jhd; ,e;j g[ifg;glj;ij Mtzkhf FwpaPL bra;aKoahJ/"

5. Aggrieved over the disallowing of marking of the photograph, during the cross-examination of the Plaintiff, the Defendant has preferred this revision. The learned counsel for the Revision Petitioner inter-alia contended that under Section 62, Explanation (2) of the Indian Evidence Act, photograph is the primary evidence which ought to have been admitted as evidence. It is the further contention that when the photograph with negative was sought to be produced, the lower Court ought not to have refused to admit the same as evidence. It is the further contention that 'relevancy' is dif