Rule. Rule made returnable forthwith. With consent of learned counsel for the parties, the matter is taken up for final hearing immediately.

2. Respondent no.1 filed Regular Civil Suit No.56/2001 claiming possession over certain property on the basis of a Will executed by his mother. The present petitioners are original defendant nos. 1 and 3, Petitioner no. 1 is brother of respondent no. 1 and petitioner no.2 is son of petitioner no. 1. Respondent no. 2 to 5 are original defendant nos.2 and 4 to 6. They are also related to them. However, they were supporting the plaintiff respondent no. 1. On behalf of the plaintiff/respondent no.1, an affidavit of Bandu Haribhau Tajne, who was stated to be an attesting witness of the Will was filed in examination-in-chief. He was put to cross-examination on behalf of the present petitioners. As in examination-in-chief before the Court he had not verified the contents of the affidavit filed in examination-in-chief, the said Will was not exhibited in the evidence. After cross-examination was over, a request was made on behalf of the plaintiff to exhibit the document and in spite of the objection taken by the contesting defendants, the Will was given Exhibit No.67. After it was exhibited, the contesting defendants filed an application Exh.68 seeking permission to cross-examine the witness on that Will on the ground that they were not given opportunity to cross-examine the witness after the Will was exhibited. However that application came to be rejected. Hence, this petition.

3. Heard learned counsel for the parties. Perused the record.

4. Prior to the Code of Civil Procedure (Amendment) Act, 2002, Order 18, Rule 4 read as follows:-

"Witness to be examined in open Court. The evidence of the witness in attendance, shall be taken orally in open Court in the presence and under personal direction and superintendence of the Judge."

Rule 4 was amended in the year 2002. The amended Rule 4 reads as follows:-

"4.Recording of evidence.-(l) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

(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 either by the Court or by the Commissioner appointed by it:

Provided that the Court may, while appointing a commission under this sub rule, consider taking into account such relevant factors as it thinks fit:

(3) The Court or the commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidenced is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.

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Order 18, Rule 5 and Rule 13 read as follows:"

5. How evidence shall be taken in appealable cases.- In cases in which an appeal is allowed, the evidence of each witness shall be,-

(a) Taken down in the language of the Court,-

(i) In writing by, or in the presence and under the personal direction and superintendence of, the Judge, or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in presence of the Judge.

13.Memorandum of evidence in unappealable cases.- In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of