JUDGMENT:- 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. 4. …… 5. …… 6. …… 7. …… 8. …… 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 each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record. " These two rules were not amended in the year 2002. In view of Rule 4, as it stood prior to the amendment, the evidence of the witness was to be recorded orally in the open Court in the presence and under the personal direction and superintendence of the Judge. " These two rules were not amended in the year 2002. In view of Rule 4, as it stood prior to the amendment, the evidence of the witness was to be recorded orally in the open Court in the presence and under the personal direction and superintendence of the Judge. After the amendment, examination-in-chief shall be an affidavit and cross-examination and reexamination, if any, may be before the Court or Commissioner. Rule 5 provides that in appealable cases, the evidence of each witness shall be taken out in the language of the Court in writing by or under the supervision or presence or direction under the personal superintendence of the Judge or from dictation of the Judge directly on a typewriter. However, in unappealable case, only memorandum of evidence was to be recorded as per Rule 13. 5. The question is whether filing of affidavit in appealable cases is sufficient without verification of the contents thereof before the Court. This question was required to be determined by learned Single Judge of this Court in F.D.C. Limited, Mumbai Vs. Federation of Medical Representatives Association India and ors, 2003(3) Mh.LJ. 327 : [2003(2) ALL MR 510]. After referring to several authorities about interpretation of the statutes and relevant provisions of Order 18, Rules 4, 5 and 13 before and after amendment, the learned Single Judge observed as follows:- "8. In other words, in the appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath to be recorded by following the procedure prescribed under Rule 5. In non-appealable cases however, the affidavit in relation to examination-in-chief of a witness can be taken on record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order 18. The Cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of Rule 5, whereas in case of non-appealable cases the court would be empowered to exercise its power under Rule 13. 9. The Cross-examination of such deponent in case of appealable cases, will have to be recorded by complying the provisions of Rule 5, whereas in case of non-appealable cases the court would be empowered to exercise its power under Rule 13. 9. In fact Rule 4, either unamended or amended makes no difference between appealable or non-appealable cases in the matter of method of recording of evidence. Such differentiation is to be found in Rules 5 and 13. The Rule 4, prior to the amendment, provided that when witness would appear before the court, his testimony would require to be recorded in the presence of and under the personal direction of the Judge which was required to be done in appealable cases as well as in non appealable cases. Only method of recording testimony in appealable cases that was to be in terms of Rule 5 whereas in other cases in terms of Rule 13. Now, in terms of Rule 4, after its amendment, it provides that recording of evidence in relation to examination-in-chief shall be in all cases by way of affidavits. However, as already observed above, in appealable cases the same is to be admitted in evidence or to be made part and parcel of the evidence by following the method prescribed under Rule 5 and in other cases, the one prescribed under Rule 13." From these observations, it is clear that in appealable cases though the examination-in-chief of witness is permissible to be produced in the form of affidavit such affidavit cannot be ordered to form part of the evidence unless deponent thereof enters the witness box and confirms that the contents of the affidavits are as per his say and affidavit is under his signature. 6. Admittedly, judgment in Regular Civil Suit is appealable. Therefore, strictly speaking when the deponent, who had filed affidavit, was called before the Court, should have confirmed and verified that the contents of the affidavit are correct and were as per his say and that the affidavit was signed by him. If he had referred to any document in his affidavit, such document could also be accepted at that stage. Thereafter, he could have been cross-examined on behalf of the contesting defendant. If he had referred to any document in his affidavit, such document could also be accepted at that stage. Thereafter, he could have been cross-examined on behalf of the contesting defendant. However, that procedure was not followed, Had he deposed before the Court that affidavit was filed by him and contents were correct, the Will, which was referred to in the affidavit and which according to him was executed in his presence, could have been accepted in evidence and exhibited. However, that document was not exhibited and straightway he was called to face the cross-examination. Naturally, in the circumstances, when he was put to cross-examination, the Will was not exhibited and was only marked as Article 'B' for the purpose of identification. As such, it could not have formed part of the evidence or record in the matter. After cross-examination was over, on request of the plaintiff said Will was given exhibit number. If the document would have been accepted and exhibited as evidence, the contesting defendant would get right to cross-examine that witness. According to learned counsel for the petitioners because that document was not even exhibited before he was cross-examined, the learned counsel for the defendant had put only certain formal question in the cross-examination and he did not go into depth about execution and attestation of the said Will. According to him, after the document was admitted in evidence, the petitioners were not given an opportunity to cross-examine the witness and they have been deprived of opportunity and right to effectively cross-examine the witness on the basis of that document. I find substance in this contention. In my considered opinion, after document was exhibited at the request of the plaintiff, it was right of the contesting defendant to cross-examine that witness. The right could not be refused otherwise he would be seriously prejudiced in the matter. In view of these finding, impugned order passed by the trial Court below Exh.68 is liable to be set aside. 7. For the aforesaid reasons writ petition is allowed. Impugned order below Exh.68 is hereby set aside. The petitioners contesting defendants shall be permitted to cross-examine the witness. Rule is made absolute accordingly. No order as to costs. Petition allowed.