CRP 59/2011 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA Heard Mr GN Sahewalla, learned senior counsel assisted by Mr U Dutta, le arned counsel appearing for the petitioner. Also heard Mr S Banik, learned couns el appearing for the respondents. Assailing the impugned order dated 20.01.2011 passed by the learned District Jud ge, Tinsukia rejecting the prayer of the petitioner seeking adjournment for fil ing evidence of DW 2 in Miscellaneous(Revocation) Case No. 130/2009 filed by th e opposite party for revocation of the ex-parte order granting probate of the Wi ll dated 15.01.1988 of Late Yunus Khan in favour of the petitioner in Miscellane ous (Probate) Case No. 126/2001 by the learned District Judge, Tinsukia vide jud gment and order dated 04.06.2003, the instant revision petition has been filed i nvoking power under Article 227 of the Constitution of India. The petitioner’s case in brief is that the petitioner as applicant filed an application for grant of probate of the Will dated 15.01.1988 in the court o f the District Judge, Tinsukia which was registered as Miscellaneous (Probate) C ase No. 126/2001 and the learned court by judgment and order dated 04.06.2003 granted probate of the said Will. Later on the opposite party as petitioner fi led an application under section 264 read with section 263 of the Indian Success ion Act, 1925 for revocation of the ex-parte order granting probate in favour of the petitioner in Miscellaneous (Probate) Case No. 126/2001 which was register ed as Miscellaneous (Revocation) Case No. 130/2009 in the court of the District Judge,Tinsukia. Upon receipt of the notice, the petitioner appeared and filed written objection against the application for revocation of the probate. On 02.07.2010, the petiti oner filed affidavit of one witness and prayed for time to file affidavit of the remaining DWs. The same was allowed fixing 23.07.2010. On that day, the petitio ner prayed for time, which was allowed fixing 26.08.2010. Subsequently, it came to the notice that the evidence of DW 1 was filed without swearing affidavit an d no documents were exhibited. Accordingly, an application was filed for allowi ng the same which was allowed vide order dated 01.10.2010 fixing 12.10.2010. On 12.10.2010, the petitioner being the opposite party, submitted the affidavit on evidence of DW 1 and prayed for time to file the evidence of other witnesses whi ch was allowed up to 25.11.2010 also fixing for FSL report. On 25.11.2010 no cou rt could be held due to Tinsukia Bandh and as such next date was fixed on 26.12. 2010. On that date, the petitioner filed an application praying for time and the court allowed time upto 20.01.2011. The witness of the petitioner, Md. Munir wh o went to Bihar was to come to depose on the date so fixed, but could not come d ue to his illness and as such on 20.01.2011 again, the petitioner had to file an application praying for time. However, by the impugned order dated 20.01.2011 p rayer for granting another date for filing evidence of DW2 was rejected directin g the opposite party (petitioner herein) to produce DW1 for cross examination on the next date fixed i.e. 17.02.2011. On the aforesaid background, the limited prayer of the petitioner is for setting aside and quashing the impugned order dated 20.01.2011 and allow the petitioner to file evidence of DW 2. I have heard learned counsel appearing for the parties. Also perused the materia l available on record. The materials made available would reveal that Md. Munir (DW-2) went to Bihar, w herein he fell ill and was under going treatment from 14.01.2011 to 05.02.2011 ( as per certificate of Doctor vide Annexure III). Thus considering the reasons sh own for non-appearance of DW-2 on the date fixed, while setting aside the impugn ed order dated 20.01.2011, in my considered opinion, interest of justice would b e served if a final opportunity is given to the petitioner as prayed for. Accordingly, it is directed that the petitioner would be allowed to file evide nce of DW 2 as a last chance on condition that the petitioner shall deposit Rs.3 000/- (Rupees Three Thousand) only as costs before the learned trial Court with in four weeks from today and on such deposit being made, the petitioner would be allowed to file evidence of DW-2 within one week, thereafter, i.e. not later th an five (5) weeks from today. As the learned counsel representing the parties is present in the court, both th e parties are directed to appear before the District Judge, Tinsukia on 18.05.20 11. Interim order passed on 17.02.2011 stands vacated. In terms of the above, the revision petition stands disposed of. No costs.