1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.1164 OF 2009 Mr.Shankar Dagdu Chowdhary & Anr. .. Petitioners Versus Mr.Suresh Maruti Wawre .. Respondent Mr.A.P.Lavate for the petitioners. Mr.V.B.Tapkir for the respondent. CORAM : A.S.OKA, J. DATE : 4 th August 2009. P.C.: . It is not in dispute that the concerned witness has expired on 16 th July 2009. The prayer made by the petitioners was for recalling the said witness for the cross-examination. In view of the death of the witness, now the prayer for recalling cannot be granted. 2. The learned counsel appearing for the petitioner submitted that application for setting aside order of no cross was filed on 24 th April 2004 i.e the very day on which the order of no cross was passed. He submitted that the said application ought to have been allowed. However, 2 the trial Court kept the said application pending for about four months. His submission is that now a direction may be issued that the evidence of the dead witness should not be considered. Such a prayer cannot be granted in this writ petition. If grievance of the petitioners is that the impugned order is erroneous or that the original order of no cross is erroneous, the petitioners can always challenge the said order in appeal which may be preferred by the petitioners against the decree passed in the suit if the decree be adverse to the petitioners. Subject to what is stated above, writ petition is not entertained and the same is disposed of. The petitioners are permitted to withdraw a sum of Rs.7,500/- deposited in this Court. (A.S.OKA,J)