( 1 ) RULE. By consent heard forthwith.

( 2 ) THOUGH the respondent Nos. 2 to 13 are parties, the order arises out of the say filed by Defendant No. 1 i. e. respondent No. 1 who is represented before this Court. Notice on the other Respondents, therefore, dispensed with;

( 3 ) THE petitioner, is the original plaintiff in the pending suit being Regular Civil suit No. 166 of 2001 filed in the Court of learned Civil Judge, Junior Division, Saswad. The reliefs sought for is that as the properties are ancestral and/or purchased out of the nucleus of the joint family properties they are liable to be partitioned. The respondent No. 1 filed written statement-cum-reply to the application for temporary injunction on 8th november, 2004 wherein defence is set out. The respondent Nos. 3 to 5 have adopted the written statement filed by the respondent No. 1. There are some inter se disputes as to the procedure of filing written statement between respondent Nos. 2 and 4 on the one hand and respondent Nos. 3 and 5 on the other. The controversy to that extent was resolved by an order dated 6th March, 2004 passed by the trial court. It is the case of the petitioners that on 12th February, 2004 the Respondent Nos. 3,4 and 5 filed 3 separate affidavits incorporatin similar contents as taken by them in the application made by them at Exh. 78. The defence raised therein are thereafter set out in the pleadings. Evidence by way of examination and cross-examination including leading of oral and documentary evidence has been partly done.

( 4 ) ON 29th September, 2004 the petitioner moved an application in the suit seeking permission of the learned trial Judge to cross-examine the respondent Nos. 3 to 5. That came to be opposed by Respondent Nos. 3 to 5. The learned Judge by his impugned order dated 1st October, 2004 rejected the application for cross-examination. It was contended that affidavits are not in lieu of examination-in-chief in the suit. The Court made reference to the provisions of Order 19 rule 2 of the Code of Civil Procedure which was not at all applicable. It is this order which is the subject matter of the present challenge.

( 5 ) AT the threshold it may be pointed out that the contesting Respondent has been unable to defend the said order. Once the affidavits are filed by way of examination- in-chief, law permits the party who is entitled to cross-examine the witnesses to do so. For that purpose we may now consider the relevant provisions of Order 18 of C. P. C. Order 18 Rule 4 before its amendment read as under :-

"4. Witnesses to be examined in open Court - The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge. "by the Code of Civil Procedure (Amendment) act 1999 the said Rule was sought to be substituted. The relevant portion of which reads as under :-

"4. Recording of evidence by commissioner- (1) In every case, the evidence of a witness of his examination-in-chief shall be given by affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. (2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination- in-chief) by affidavit has been furnished to the Court shall be taken orally by a commissioner to be appointed by the Court from amongst the panel of Commissioners prepared for this purpose on the same day; provided that, in the interest of justice and for reasons to be recorded in writing, the court may direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the judge. "the Act of 1999 also provided for addition of another Rule after Rule 18, Rule 19 which reads as under:-

"19. Power to get statements recorded on commission.- Notwithstanding anything contained in these rules, the Court may, instead of examining witnesses in open court, d