CRP 336/2009 BEFORE THE HON’BLE MR JUSTICE B. P. KATAKEY Learned counsel for the petitioner, at the outset, has prayed for conversion of the present petition from one under Section 115 of the CPC to one under Article 227 of the Constitution of India. Prayer is allowed. Heard Mr D Sarmah, learned counsel for the petitioner, as well as Mr S M edhi, learned counsel for the respondent. The defendant in Money Suit No.228/2007, by the present application, has challenged the order dated 16 June 2009 passed by the learned Munsiff No.3, Kam rup in the aforesaid suit rejecting the prayer made in Petition No.176/2009 for recalling the plaintiff’s witness No.2 for the purpose of cross-examination, on the ground that on the date fixed for cross-examination of the said witness, her counsel could not appear due to illness. In support of such contention, a medic al certificate was also enclosed. The prayer made in the said petition, however, has been opposed by the present respondent, who is the plaintiff in the suit, b y filing written objection. The learned trial Court has rejected said petition on a very technical g round, i.e. though the present petitioner in the said petition has contended tha t due to the illness of her counsel, PW2 could not be cross-examined, in the pet ition it has been mentioned that the counsel for the defendant No.2 could not ap pear due to illness. The same is admittedly a clerical mistake. The petitioner, instead of mentioning defendant No.1, has inadvertently mentioned defendant no.2 . The learned court below ought not to have rejected the said petition on such a technicality and instead, ought to have proceeded to decide the petition by ign oring such mistake. It also appears from the order impugned that the ground of i nability to appear taken in the petition has not been disbelieved. Upon consideration of the aforesaid position and the submissions made by learned counsel for the parties, I am of the view that one more opportunity sho uld be given to the defendant No.1/petitioner to cross-examine PW2. Therefore, the present petition is disposed of with a direction to the l earned Munsiff No.3, Kamrup at Guwahati to allow the defendant No.1/petitioner t o cross-examine PW2 on the date to be fixed.. On the said date, the plaintiff sh all produce PW2 for cross-examination by the defendant No.1/petitioner. Since th e proceeding was delayed due to defendant No.1/petitioner, she shall pay a cost of Rs.1,000/-(Rupees one thousand) only to the plaintiff, which shall be deposit ed on the next date fixed. On such deposit, the amount shall be released in favo ur of the plaintiff. It is made clear that in the event on the date to be fixed by the learned court below, PW2 appears for cross- examination and the defendant No.1/petitioner does not cross examine the witness, no further opportunity will be given. The deposit of cost is the condition precedent. Parties are directed to appear before the learned court below on 6 January 2011, for taking necessar y orders from that Court. The revision petition is accordingly disposed of. No costs.