CRP 300/2010 BEFORE THE HON’BLE MR.JUSTICE B.P.KATAKEY Heard Mr K Sarma, learned counsel for the petitioners/defendants and Mr B Sinha, learned counsel for the respondent/plaintiff. The petitioners, who are the defendants in Title Suit No.2/2009, by the present petition have challenged the order dated 25th June 2010 passed by learne d Civil Judge, Kokrajhar in the said suit rejecting the application bearing No.5 48/10 filed praying for allowing them to cross-examine plaintiff’s witnesses. It is the contention of learned counsel for the petitioners that learned Court below, without considering the grounds taken in Petition No.548/ 10 dated 25th June 2010, rejected the prayer made therein only on the basis of the order s dated 15th May 2010, 1st June 2010 and 2nd June 2010 passed in the suit. Accor ding to learned counsel, it is evident from the petition that because of the fau lt of their dealing advocate they had to suffer, and as such they may be allowed to cross-examine the witnesses examined by the plaintiff. Learned counsel for the respondent, on the other hand, supporting the or der dated 25th June 29010, submits that the petitioners/defendants had always be en in default in cross-examining the plaintiff’s witnesses, though a number of o pportunities were accorded to them and as such, learned Court below has rightly rejected the prayer made by the petitioners on 25th June 2010. It would appear from the impugned order dated 25th June 2010 that Petiti on No.548/10 filed by the present petitioners on 25th June 2010 has been rejecte d, in view of orders dated 15th May2010, 1st June 2010 and 2nd June 2010, on whi ch date the case was fixed for cross-examination of PWs by the proforma-defendan t. By the order dated 15th May 2010, prayer for adjournment made by the pre sent petitioners for cross-examination of PWs was granted subject to payment of Rs.400/- as cost, fixing 1st June 2010 for cross-examination of PWs by the prese nt petitioners. On 1st June 2010, PWs were present, but the dealing advocate of the petitioners though filed his hazira (presence), he was found to be not prers ent, when the suit was taken up for hearing. The Court, therefore, decided to ta ke up the said proceeding at 11.30am when also the dealing advocate was found to be absent, so also at 3pm, and hence the Court closed evidence of PWs in so far the present petitioners are concerned, and fixed 25th June 2010 for cross-exami nation of PWs by the proforma-defendant. On 1st June 2010, an application was fi led by the petitioner No.1, who was then taking steps, for allowing them to cros s-examine PWs stating that their dealing advocate was busy in the Court of learn ed Chief Judicial Magistrate, Kokrajhar and hence, he could not appear on that d ay. The said petition was taken up for consideration on 2nd June 2010 and, on su ch consideration, the same was rejected, without however any discussion on the a verments made in the application. On 25th June 2010 when the suit was fixed for cross-examination of PWs b y the proforma-defendant, as it appears, only PW1 was cross-examined by the prof orma defendant, and on such examination, the former was discharged. The said ord er does not disclose whether other PWs were present in Court for cross-examinati on by the said defendant. By the order dated 25th June 2010, while fixing the ca se on 20th July 2010 for cross-examination of other PWs, obviously by the profor ma-defendant, learned Court below, rejected the application filed by the present petitioners to allow them to cross-examine PWs. It appears that on 25th June 2010 an application was filed by the presen t petitioners contending basically that the cost of Rs.400/- as imposed by the o rder dated 15th May 2010 was handed over to their dealing advocate, but the same was not deposited by the latter, nor did he appear in the suit when the case wa s fixed for cross-examination of the plaintiff’s witnesses. The sum-and-substanc e of the contention of the present petitioners in the said petition is that they should not made to suffer, because of the inaction and/or lapses on the part of their dealing advocate. The impugned order dated 25th June 2020 does not disclose consideration of the averments made in the application filed by the present petitioners on 25t h June 2010, which is annexed as Annexure-5 to the present petition, contents of which are not even controverted by the respondent in the present proceeding. Bu t the fact remains that on 25th June 2010, i.e. the date fixed for cross-examina tion of PWs by the proforma-defendant, PW1 was present in Court and he was cross -examined by the proforma-defendant. The Court also fixed 20th July 2010 as the next date for cross-examination of other PWs by the proforma-defendant. That being the position, the Court ought to have allowed the present pet itioners to cross-examine PWs present on 25th June 2010, and other PWs as well. In view of above, the impugned order dated 25th June 2010 is set aside. The learned Court below is directed to afford one more opportunity to the petiti oners to cross-examine PWs. The respondent/plaintiff shall produce his witnesses on 8th October 2010 for cross-examination by the present petitioners. The profo rma-defendant may also cross-examine the remaining PWs on that day, if the busin ess of the Court so permits. No prayer for adjournment by the present petitioner s shall be entertained. Since the proceeding has been delayed because of the pre sent petitioners, they shall pay a cost of Rs.3000/-(Rupees three thousand only) to the present respondent, which shall be deposited on 8th October 2010 in the learned Court below and, on such deposit being made, the same shall be released to the present respondent. This deposit of cost is a condition precedent. This revision petition is allowed to the extent indicated above. No costs.