ORDER Heard learned counsels appearing on behalf of the parties and with their consent this appeal is being finally disposed of at this stage itself. 2. This is an appeal preferred against the order dated 02nd March, 2012 passed in Probate Case No. 33 of 1997/Probate Title Suit No. 54 of 2002 by 3rd Additional District Judge (Fast Track Court), Darbhanga, dismissing the case, on contest. 3. After hearing the learned counsels representing the parties, it appears that for the present this appeal involves limited questions relating to examination of one of the two attesting witnesses to the will in question, namely, Mahabir Prasad. The court below has based his finding on the assumption that said Mahabir Prasad was never examined. Whereas, in fact, his examination-in-chief by way of affidavit was filed on 26th February, 2007, but nothing more could be done in absence of availability of the will in question, which was at the relevant time in safe custody of Sirestedar of the court. On next very date, i.e., on 14th March, 2007 examination-in-chief by way of affidavit of another witness, namely, Gudri Thakur was filed, but the position remained same. However, on the requisition issued, the will could be produced only on 16th March, 2007 and said Gudri Thakur was further examined and cross-examined, proved the signature of said Mahabir Prasad (marked as Exhibit - A/3) also. 4. Subsequently, other witnesses on behalf of the appellant were examined including another having similar name, Mahabir Sah, who was examined and partly cross-examined on 31st August, 2007, finally discharged on 01st October, 2007 and from the impugned judgment, it appears that the court below is completely silent about the filing of such affidavit by said Mahabir Prasad on 26th February, 2007, but taking into consideration, his non-examination, dismissed the application, giving rise to this appeal. 5. It is contended on behalf of learned counsel representing the respondent that since Mahabir Prasad never appeared for cross-examination, the court below committed no wrong while treating that said Mahabir Prasad was never examined. True it is, when a witness appears for examination-in-chief, but in spite of directions and opportunities given never turned up for cross-examination, his evidence may be expunged or may not be considered, all such things must be visualized from the record. 6. True it is, when a witness appears for examination-in-chief, but in spite of directions and opportunities given never turned up for cross-examination, his evidence may be expunged or may not be considered, all such things must be visualized from the record. 6. But in the case in hand, said Mahabir Prasad, another attesting witness, appeared before the court below by filing affidavit (examination-in-chief) on 26th February, 2007, but nothing could be done since will in question was not available and, thereafter, nowhere from the order-sheet of the court below, it appears that any direction or opportunity was ever given or attempt was made to produce said Mahabir Prasad for cross-examination. Had he never appeared for cross-examination in spite of such direction and opportunity, if provided. The court below could have either expunged his evidence or assigned the circumstances stated above holding his evidence is not worth consideration, but there is nothing of the kind nor there is any whisper even in the order about his examination-in-chief. 7. This indicates complete overlooking of the relevant material on record, without showing any due diligence by the court. And the litigant deserves protection against such error committed. As the Hon’ble Apex Court in a case “Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and Others” reported in “AIR 1961 Supreme Court 832” in paragraph – (11) has held as such:– “(11) …………the litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in the discharge of their duties. …………… .” 8. The circumstances stated above alone needs afresh order to be passed by the court below after properly giving opportunity to the appellant to produce said Mahabir Prasad for cross-examination, whose examination-in-chief is on the record in shape of affidavit filed on 26th February, 2007. 9. In the result, the impugned judgment is set-aside; matter is remitted to the court below for fresh order in the light of observations made above. There shall be no order as to cost. The court below is further directed to proceed expeditiously and preferably dispose of the case within a period of three months from the date of receipt of the Lower Court Records and communication of the order. The learned counsels appearing on behalf of the parties ensure their cooperation in early and smooth disposal of the case. The court below is further directed to proceed expeditiously and preferably dispose of the case within a period of three months from the date of receipt of the Lower Court Records and communication of the order. The learned counsels appearing on behalf of the parties ensure their cooperation in early and smooth disposal of the case. The Lower Court Records along with copy of this order be at once transmitted to the court below through Special Messenger for which the appellant is ready to deposit the cost within two weeks from today.