CRP 275/2009 BEFORE THE HON’BLE MR JUSTICE B.P. KATAKEY Heard Mr. IH Barbhuyan, learned counsel for the petition ers and Mr. FU Borbhuya, learned counsel for the respondent. The petitioners, who are the plaintiffs in Title Suit No .17/2005, by the present petition have challenged the order dated 1st June, 2009 , whereby and where-under the petition being numbered as Petition No.785/14 date d 14th May, 2009 filed by them to recall the order dated 29th April, 2009 and to give one more opportunity to present the PW-5 for cross-examination by the defe ndant, has been rejected. It appears from the materials made available on record t hat numbers of adjournments were earlier taken by the plaintiffs for production of the PW-5 for cross-examination. The case was thereafter, fixed on 7th March, 2009 for cross-examination of the PW-5 when though the witness was present for c ross-examination, on the verbal prayer made by the learned counsel for the defen dant/respondent, the case was adjourned till 31st March 2009. On the said date, i.e. on 31st March, 2009, an application was filed by the plaintiffs/ petitione rs seeking time to produce PW-5 for cross-examination, which was allowed as the last chance fixing 29th April, 2009. On 29th April, 2009, an application on beh alf of the plaintiffs/petitioners was filed by the learned counsel for the petit ioners praying for adjournment on the ground that he could not present as he has to accompany his uncle for treatment in the hospital at Velore. The said applic ation was filed by the learned counsel for the plaintiffs/petitioners on the bas is of the telephonic instruction received. The learned Court below rejected the said application vide order dated 29th April, 2009 on the ground that the petiti on is not supported by any medical documents and on the last occasion, i.e. on 3 1st March, 2009, a last chance was given. The learned Court below, therefore, ha s expunged the examination-in-chief of the PW-5. The petitioners/plaintiffs thereafter, on 14th May, 2009 filed an application registered as Petition No.785/14 praying for recalling the order dated 29th April, 2009 and to allow the plaintiffs/petitioners to produce the PW-5 for cross-examination by the defendant stating that PW-5 has to accomp any his uncle for the treatment outside the State. The said petition was taken up for consideration on 1st June, 2009 and the learned Court below rejected the said petition after hearing the learned counsel appearing for the defendant as n one appeared for the plaintiffs /petitioners on that date, without, however, giv ing any reason therefor. The said order is put to challenge in the present revi sion petition. It appears from the order dated 29th April, 2009 that th e petition for adjournment was rejected on the ground of non filing of the medic al documents and also on the ground that on 31st March, 2009, a last chance was granted to the plaintiffs/petitioners to produce the PW-5 for cross-examination. The Court, however, while rejecting the application for adjournment on the gro und that the medical documents have not been annexed, did not take into consider ation the fact that the application was filed by the learned counsel for the pla intiffs/petitioners on the basis of the telephonic instruction. If there is suf ficient ground for not presenting the witness for cross-examination, the fact th at a last chance was granted on an earlier occasion, may not be the ground on wh ich the prayer for adjournment can be rejected. It also appears from the order dated 1st June, 2009 that the learned Court below did not disbelieve the content ion of the plaintiffs/ petitioners made in the Petition No.785/14 that PW-5 has to go out of the State in connection with the treatment of his uncle. Since the learned Court below has considered the petition on merit, it ought to have also taken into consideration the said aspect of the matter, which has not been done. Keeping in view the aforesaid position and also the mate rials made available in the revision petition, I am of the view that a further o pportunity should be given to the plaintiffs/petitioners to present the PW-5 for cross-examination by the defendant, subject, of course to the payment of cost o f Rs.5,000/- (Rupees Five Thousand). The revision petition is, therefore, disposed of with th e direction to the learned Court below to allow the present petitioners/plaintif fs one more chance to produce PW-5 for cross-examination by the defendant No.1. The parties shall appear before the learned Court below on 12th November, 2010, on which date the cost, as awarded by this order shall be deposited by the plai ntiffs before the learned Court below, which shall than be released in favour of the defendant. The learned Court below shall thereafter, fix a date for product ion of the PW-5 for cross-examination by the defendant. In case on the such dat e fixed, the plaintiffs fail to produce PW-5 for cross-examination by the defend ant, no further time shall be granted to the plaintiffs/petitioners for producti on of the PW-5 for cross-examination and in that case, the learned Court below s hall proceed to decide the suit after expunging the examination-in-chief of PW-5 . The payment of such cost is the condition precedent. The revision petition is accordingly disposed of with co st.