THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR C.R.P.No.2788 of 2008 O R D E R: The petitioners, who are judgment debtors in O.S.No.61 of 1976 are opposing the final decree application I.A.No.847 of 2007 filed by the respondent herein. The earlier final decree passed by the Court below was questioned by the petitioners in A.S.No.3411 of 2000. The same was allowed by this Court under the judgment and decree dated 25.11.2005, and the operative portion of the judgment of this Court is as follows: “During the course of arguments, it is represented by the learned counsel for the appellant that even though he sought for the certified copy of the judgment on the even date, however, the same was returned stating that no fair order is available in the record. From the above, it is clear that there is no judgment either passed or available on record. Therefore, question of preparing any decree as such does not arise. In the above circumstances, the appeal is allowed and the matter is remitted to the Court below. Since the appellant has paid the Court fee, the Court below is directed to dispose of the matter afresh on merits in accordance with law within a period of three months from the date of receipt of a copy of this judgment after giving notice and opportunity to both sides. No costs.” Thereafter the petitioners had filed I.A.No.847 of 2007 to recall all the witnesses examined by the respondent herein in I.A.No.83 of 1999 for the purpose of cross-examination by the petitioners. The petitioners also filed I.A.No.848 of 2007 to receive objections on their behalf. The Court below had allowed I.A.No.848 of 2007 and objections of the petitioners have been taken on record. So far as the present application is concerned, the same was dismissed, as the Court below was of the opinion that the witnesses sought to be recalled and were examined in the year 1999 and subjecting them to cross-examination at this distance of time would serve no purpose. Heard the learned counsel for the petitioners. Though notice was served on the respondent counsel long back, as permitted by this Court and though the further proceedings in the suit has been stayed in this Civil Revision Petition since 27.02.2009, nobody appears for the respondents as confirmed by the office report dated 13.07.2010. The learned counsel for the petitioners states that the Advocate-Commissioner, who recorded the evidence of the said witnesses in I.A.No.83 of 1999 has forfeited right of these petitioners to cross-examine the said witnesses. He also submits that the Advocate- Commissioner cannot pass orders affecting the rights to cross- examine and that being a power of the competent Civil Court alone, the petitioners have not been allowed to cross-examine the witnesses examined by the respondent in support of his application I.A.No.83 of 1999. I find force in the said contention. I am also not able to appreciate the reasoning of the Court below that the petitioners request cannot be allowed on the ground that ‘it would serve no purpose’. The learned counsel for the petitioners says that the said witnesses are available and if one opportunity is given, the petitioners will complete the cross- examination of those witnesses and that the petitioners do not intend to lead any rebuttal evidence. Whether cross-examination of the witnesses is necessary and useful is a matter, which is for the petitioners to decide and it would not be correct for the Court below to reject the petitioners application on the ground aforesaid. The Court below also was of the opinion that such application is moved only to delay the matter. That reason also does not appear to be correct inasmuch as Court below itself has received objections to the Commissioner’s report, on behalf of the petitioners by allowing I.A.No.848 of 2007 and one of the main objections of the petitioners being that they were not given sufficient opportunity will have to be considered by the Court below especially in view of the operative portion of the order of the Division Bench allowing petitioners appeal in A.S.No.3411 of 2000 and, therefore, I am of the view that the petitioners are entitled for one opportunity, so that they can cross- examine the respondents witnesses. However, the delay caused so far and for not having availed of the opportunity earlier provided by the Commissioner it could be appropriate to impose costs on the petitioners. The impugned order is therefore set aside. I.A.No.847 of 2007 is allowed as prayed for, subject to the petitioners depositing costs of Rs.2,000/- (Rupees two thousand only) to the credit of the Court below within two weeks from today. On compliance of the aforesaid condition, the Court below shall fix a date for cross-examination of the said witnesses by the petitioners and on that date the petitioners shall complete cross-examination of the witnesses. The Court below shall thereafter consider the matter afresh and take up and decide the final decree application in accordance with law as directed by the Division Bench. Accordingly, the Civil Revision Petition is allowed. No costs. ____________________ VILAS V.AFZULPURKAR,J 7th September, 2010 PNV