IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.716 of 2009 SAIL DEVI GUPTA & ANR Versus VIJAY MALA DEVI@BIJIYA DEVI&OR ----------- For the petitioners : Mr. Chandra Kant, Advocate For the Opp. Parties: None. ------------ 2/ 13.05.2009 Heard learned counsel for the parties. As may appear from the impugned order itself, the petitioners had appeared in the court below on account of being impleaded as party by its own order dated 9.12.2003 in the light of a petition filed by the plaintiffs. It is also apparent from the impugned order that the evidence of the plaintiff had been concluded on 22.6.2006 and that the two opposite parties namely opposite party nos. 17 and 18 i.e. the two petitioners before this court, appeared in the court below and filed their written statement on 31.7.2006 i.e. after a month of the closure of the evidence of the plaintiff. It is trite law that if a party has been allowed to contest the suit by filing written statement, then a right accrues to him to cross examine any witness who had earlier been examined and discharged before appearance of that particular party. The right of cross- examination is being denied by the plaintiff on the ground that the witnesses who are sought to be cross examined by the petitioners were ill or were residing at some places. I could draw the attention of the learned trial Judge towards Order XVIII Rule 4(ii)(iii) of the Code of Civil Procedure which makes it permissible to record the evidence either in cross examining or re-examining on commission. The learned - 2 - court below ought not to have refused the prayer of the petitioners to cross-examine the witnesses who had been discharged prior to their appearance in the court below. This revision petition is allowed with the above observations and with a direction to the learned court below that the witnesses who were discharged prior to 31.7.2006 be recalled and their evidence in cross-examination be recorded by any mode the court, in the facts and circumstances of the case, deems fit and proper. Anil/ (Dharnidhar Jha, J.)