1 D.B. Special Appeal(Writ) No. 328/2004 IN S.B. Civil Writ Petition No. 5568/2003 Prem Chand & Others Versus Smt. Hem Kanwar & Another. 18.08.2009 Hon'ble Mr.R.C.Gandhi,J. Hon'ble Mr. K.S. Chaudhari,J. Mr. R.P. Vijay, for the appellants. Mr. Shailesh Prakash Sharma, for the respondents. (Oral) This appeal has been preferred against the order dated 15.04.2004 passed in Writ Petition No. 5568/2003 whereby the writ petition of the appellants- petitioners has been dismissed by the learned Single Judge. 2. This appeal was listed yesterday, i.e. on 17.08.2009 and with the consent of learned counsel for the parties it was directed to be listed for disposal today and, accordingly, is taken up for disposal. 3. Heard learned counsel for the parties and perused the record. 4. The defendants-appellants were leading their 2 evidence in a suit before the trial court. Opportunities were granted to lead evidence till 09.09.1999. They examined two witnesses. Their evidence was closed by the trial court vide order dated 27.11.1999. The appellants, on the same day, filed an application for recalling order dated 27.11.1999, seeking permission of the trial court to examine two more witnesses namely Rameshwar Prasad and Dhapu Devi. The application was partly allowed by the trial court vide order dated 10.12.1999 permitting the appellants to examine one witness. The appellants examined Rameshwar Prasad. 5. Simultaneously, the appellants challenged order dated 10.12.1999 passed by the trial court by way of writ petition which came to be dismissed by the learned Single Judge vide order dated 15.04.2004. 6. This appeal has been preferred on the same grounds as set out in the memo of the writ petition that the trial court has not permitted the appellants to examine other witness and if the witness is not examined, it will cause serious prejudice to their case. 7. On perusal of the record we find that the appellants have been denied permission to examine the second witness though the appellants wanted to examine Rameshwar Prasad and Dhapu Devi. At the most, this 3 relief can be granted to the appellants and that too, with the consent of learned counsel for the respondents. Learned counsel for the respondents has submitted that since the appeal is pending and the time is being taken to prolong the litigation, therefore, he agrees to examine one witness in substitution of Dhapu Devi. 8. Learned counsel for the appellants has submitted that he cited Dhapu Devi as a witness to prove the fact of possession. He has further submitted that Dhapu Devi has died during the pendency of the proceedings. The appellants want to examine another witness to prove their possession or what they wanted to prove by examining the Dhapu Devi, which is opposed by the learned counsel for the respondents. 9. We allow this appeal with the consent of learned counsel for the parties and direct the appellants to produce their witness before the trial court and examine him/her in defence of their case on the next date of hearing. In case the witness is not produced by the appellants on that day before the trial court, order dated 10.12.1999 shall become operative. 10. Learned counsel for the appellants has submitted that the appellants be permitted to examine the witness before the trial court on 31st October, 2009. He is 4 permitted accordingly. The trial court shall record the statement of the witness on that day, if the witness is produced. It has been brought to our notice that because of the pendency of the litigation, Rameshwar Prasad, witness produced by the appellants, has not been cross- examined. The appellants shall produce Rameshwar Prasad also before the trial court on the same day for corss-examination. If he is not produced, his statement shall not be read in support of the appellant's evidence. 11. The appeal is accordingly disposed of with cost of Rs. 1,000/- to be paid to the other side. (K.S. Chaudhari),J. (R.C.Gandhi),J. Manoj. Item No.3.