C.R.P. No. 593 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.03.2023

CORAM

THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI

C.R.P.No. 593 of 2023

and C.M.P. No.4740 of 2023

Valli

... Petitioner

Vs

1. Thangavel

2. Easwaran

... Respondents

PRAYER : Civil Revision Petition filed under Art. 227 of the Constitution

of India, praying to set aside the order and decree dated 19.10.2022 in

I.A.No.5 of 2022 in O.S.No.762 of 2016 on the file of IV Additional

District Munsif Court, Salem.

For Petitioner

:

Mr.R.Rajarajan

For Respondents :

Mr.V.Sekar

O R D E R

Challenging the order in I.A.No.5 of 2022 in O.S.No.762 of 2016

dated 19.10.2022 passed by the learned IV Additional District Munsif,

Salem, the petitioner has filed this Civil Revision Petition.

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C.R.P. No. 593 of 2023

2. The Revision Petitioner is the plaintiff who filed an application

before the trial Court seeking to cancel Ex.B1 and Ex.B2 which were

marked in OS.No.762 of 2016 on the file of the IV Additional District

Munsif, Salem. Originally, O.S.No.762 of 2016 has been filed for

permanent injunction and the suit was posted for trial and PW1 was

examined. During cross examination, one photograph along with the CD

was marked as Ex.B1 and Ex.B2 on the side of the defendant, which ought

to have been marked either through the person who took the photo or the

person responsible for taking that photo, besides not enclosed with Form

65B certificate, which is mandatory as per the Indian Evidence Act.

Therefore, she prays to cancel Ex.B1 and Ex.B2 which were marked. The

defendant stated that during cross examination, the photograph was shown

to the plaintiff and she admitted that she is found in the photo, and

accordingly, the CD was also marked as Ex.B2. Mere marking of the

documents does not amount to proof or admission of the entire contents, and

hence the learned trial Judge dismissed the suit application in I.A.No.5 of

2020. By challenging the said order, the petitioner has preferred this

Revision.

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C.R.P. No. 593 of 2023

3. The learned counsel for the petitioner / plaintiff argues that the

defendant ought to have marked the photo and CD along with Form 65B

certificate through proper witness.

4. The learned counsel for the respondent / defendant submits that

mere marking of the document would not amount to proof or admission of

the contents and the learned trial Judge is having every discretion to decline

the document. To support his contentions, the learned counsel for the

respondent relied on the following authority of the Hon'ble Supreme Court

reported in (2001)3 Supreme court Cases 1, Bipin Shantilal Panchal vs.

State of Gujarat and another, it which it is held as follows:

"14.When so recast, the practice which can be a better

substitute is this; Whenever an objection is raised during

evidence taking stage regarding the admissibility of any

material or item of oral evidence the trial Court can make a

note of such objection and mark the objected document

tentatively as an exhibit in the case (or record the objected

part of the oral evidence) subject to such objections to be

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C.R.P. No. 593 of 2023

decided at the last stage in the final judgment. If the Court

finds at the final stage that the objection so raised is

sustainable the Judge or Magistrate can keep such evidence

excluded from consideration. In our view there is no illegality

in adopting such a course. (However, we make it clear that if

the objection relates to deficiency of stamp duty of a document

the Court has to decide the objection before proceeding

further. For all other objections the procedure suggested

above can be followed."

5. Accordingly, the said ratio is to be followed, but, coming to the

facts of the case