Honble YADAV, J. — The instant second appeal has been filed against the judgment and decree dated 5.5.95 passed by learned Civil Judge (Senior Division), Pali in Civil Appeal No. 14/94 whereby the judgment and decree dated 18.8.93 passed by learned Munsif and Judicial Magistrate, Marwar Junction in Civil Original Suit No. 18/92 has been set aside and suit has been remanded for trial in accordance with law. (2). I have heard learned counsel for the appellant Shri H.R. Soni holding brief of Shri Abdul Aziz Khan and Shri MS Singhvi and Shri Dinesh Maheshwari as Amicus curiae at length. (3). This second appeal is misconceived for the reason that against the impugned judgment and decree remanding the case under 0.41 r. 23 C.P.C. is appealable under 0.43 r.l (u) CPC and as such no second appeal is maintainable u/S. 100 CPC. (4). At this stage, the learned counsel for the appellant made an oral application before me that this second appeal may be converted into a misc. appeal under 0.43 r.l(u) CPC. (5). From the appearance of the learned counsel he appears to be young member of the Bar, therefore, such mistakes are always possible. Taking a lenient view I propose to convert this second appeal into a misc. appeal under 0.43 r.l(u) CPC. After converting the second appeal into a misc. appeal under 0.43 r.l(u) CPC I propose to decide the case on merits at admission stage. (6). Brief facts necessary to be noticed for adjudication of the present misc. appeal are that an order to proceed ex-parte was passed on 19.3.80 and in pursuance of the aforesaid order ex- parte evidence of the plaintiff-appellate was recorded on 1.4.80. (7). After recording the statement of the plaintiff ex-parte decree was passed on 5.4.80. Aggrieved against ex-parte decree an appeal was filed by defendant which was allowed by learned District Judge vide his order dated 27.3.84 and after setting aside the ex-parte decree the case was remanded to the learned trial court for decision on merits. (8). After setting aside ex-parte decree on 27.3.84 several dates were given by the learned trial court but no evidence was adduced from either side, therefore, the learned Munsif and Judicial Magistrate, Marwar Junction thought it proper to decide the suit on merit on the basis of ex-parte evidence of the plaintiff recorded on 1.4.80. (9). (8). After setting aside ex-parte decree on 27.3.84 several dates were given by the learned trial court but no evidence was adduced from either side, therefore, the learned Munsif and Judicial Magistrate, Marwar Junction thought it proper to decide the suit on merit on the basis of ex-parte evidence of the plaintiff recorded on 1.4.80. (9). Undeniably there is no material on record to indicate that after remand of the case by learned District Judge on 27.3.84 the plaintiff did offer himself for cross-examination. It is also evident from order sheets of trial court that after remand the learned trial court did not post the suit for evidence of either plaintiff or defendant. (10). Curiously again the learned trial court on basis of exparte evidence of plaintiff dated 1.4.80 on the basis of which he has earlier passed exparte decree has decreed the suit of the plaintiff on merits on 18.8.93 even without affording an opportunity of cross-examination to the defendant. (11). Aggrieved against the judgment and decree dated 18.8.93 the defendant-respondent filed an appeal before the learned District Judge, Pali who transferred it to the court of learned Civil Judge (Sr. Division) Pali for disposal in accordance with law. (12). After hearing both the parties the learned Civil Judge set aside the judgment and decree dated 18.8.93 passed by learned Munsif and Judicial Magistrate, Marwar Junction and remanded the case to the trial court for giving an opportunity to the defendant-appellant to cross-examine the plaintiff. (13). Aggrieved against the remand order dated 5.5.95 the instant second appeal was filed before me which has now been converted into misc. appeal under O.43 r. 1 (u) CPC. (14). The main thrust of the argument of the learned counsel for the appellant Shri HR Soni is that it is not disputed that the plaintiff was present after remand order dated 27.3.84 before learned trial court on several dates but no attempt was made by the defendant to cross-examine him. According to the learned counsel his mere presence must be deemed to be sufficient casting a duty upon defendant to cross-examine the plaintiff and if he failed to cross-examine then the learned trial court was absolutely within his jurisdiction to pass decree on the basis of statement of the plaintiff which was recorded in exparte proceedings on 1.4.80 before passing of the exparte decree on 5.4.80. It is further urged before me that exparte statement of the plaintiff recorded before passing of ex-parte decree on 5.4.80 will not deemed to have become non-est. (15). In support of his aforesaid contention the learned counsel for the appellant has placed reliance on a decision of a learned Single Judge rendered in a case of Nasim Alam vs. Shri Mukund Singh & Ors. (1). (16). The amicus curiae Mr. Dinesh Maheshwari while assisting the court urged before me that even if the ratio of the case of Nasim Alam (supra) is taken into account even then the order passed by the learned lower appellate court remanding the case and giving an opportunity to defendant to cross-examine the plaintiff- appellant is eminently just and proper and within the four corners of the aforesaid decision rendered by learned Single Judge in case of Nasim Alam (supra). (17). I have given my thoughtful consideration to the aforesaid rival contentions raised at the bar and in my considered opinion the present controversy is squarely covered by the decision of Nasim Alam (supra). There is no quarrel with the proposition of law laid down in the aforesaid decision that the ex-parte statement of the plaintiff recorded on 1.4.80 before passing of the exparte decree on 5.4.80 will not automatically be deemed to have become non-est. (18). According to the ratio of the decision rendered in the case of Nasim Alam (supra) in para 17 it is clearly ruled that in circumstance of that case the interest of defendant was fully safeguarded inasmuch as he was given an opportunity of cross- examining the witnesses who appeared after passing of the order of ex-parte proceedings. (19). Learned counsel Shri Soni is emphasizing on para 17 of the aforesaid decision and according to him as the plaintiff in the present case was also present on several dates after setting aside the ex-parte decree by learned District Judge on 27.3.84, therefore, it will be presumed that he was available for cross-examination by the defendant even without any overt act on his part or even without any overt act on the part of learned trial court giving an opportunity to the defendant for cross- examination of the plaintiff by way of fixing a specific date for the said purpose of cross-examination. (20). (20). The aforesaid argument is wholly misplaced inasmuch as even according to the decision of Nasim Alam (supra) an opportunity of cross-examination must be given to the defendant. Mere presence of the plaintiff on several dated will not tantamount that the plaintiff offered himself for cross-examination by defendant. The aforesaid judgment rendered by learned Single Judge in the case of Nasim Alam (supra) was placed before the learned lower appellate court and the learned lower appellate court has correctly understood the said judgment and as such there is no infirmity or illegality in the order passed by learned lower appellate Court. (21). The expression after giving opportunity of cross- examination to the defendant itself presupposed an overt act on the part of plaintiff either to offer himself for cross- examination by the defendant or learned trial court aught to have posted the suit for cross-examination of the plaintiff by defendant. (22). There is yet another reason not to accept the argument of the learned counsel for appellant that the business of courts on a particular date are conducted for which suit is posted on a particular date. Neither plaintiffs nor defendants are permitted to do a thing on their own for progress of the suit on a particular date for which date is not fixed by the court. In fact both the plaintiffs and defendants are supposed to do the same thing on a particular date for which it is posted by the court. In the present case no specific date was fixed by the court for cross-examination of the plaintiff by defendant hence it would be presumed that defendant was not given an opportunity to cross- examine. (23). Learned counsel for the appellant invited my attention towards statutory rule 82 of the General Rules (Civil) framed by this Court in exercise of its power and jurisdiction under Article 227 of the Constitution of India with the approval of Governor of Rajasthan which reads thus : — "82. (23). Learned counsel for the appellant invited my attention towards statutory rule 82 of the General Rules (Civil) framed by this Court in exercise of its power and jurisdiction under Article 227 of the Constitution of India with the approval of Governor of Rajasthan which reads thus : — "82. Where a witness is present in Court but a party or his counsel is not present or the party or his counsel though present in court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit, dispensing with the examination-in-chief or cross-examination of a witness, as the case may be, by the party or his counsel not present or not ready as aforesaid." (24). A close scrutiny of Rule 82 of General Rules (Civil) reveals that it applies to a witness not to the plaintiff or defendant. Secondly, there must be material on record to infer that a party or his counsel is either not present or the party or his counsel though present in court is not ready to examine or cross- examine of the witnesses. Then in such a situation the court may if thinks fit record the statement of witness and pass such orders as it thinks fit dispensing with the examination-in-chief of cross-examination-of the witness as the case may be. (25). The aforesaid statutory Rule also run counter to the argument of the learned counsel for appellant. In fact for dispensation of examination-in-chief or cross-examination a specific order of the Court is required to be passed. Admittedly no such order was passed in the present case by learned trial court dispensing with the cross-examination of plaintiff-appellant by defendant respondent. (26). As a result of the aforementioned discussion the instant misc. appeal lacks merit and is hereby dismissed in limine.