JUDGMENT : Deepak Maheshwari, J. This appeal has been preferred by appellants - defendants against the judgment and decree dated 22nd January, 1998 passed by learned Additional District & Sessions, Kotputli, District Jaipur against them in Civil Original Suit No. 131/1992 for recovery of Rs.76,000/- with costs along with the amount of interest @ 12% per annum since filing of the suit i.e., 27th August, 1984. 2. Facts in brief giving rise to this appeal are that the plaintiff - Chhajuram and original defendant - Vishambhar Dayal were brothers. As per the facts mentioned in the plaint, both these brothers along with third brother - Kanhaiyalal were having joint business of military canteen. Defendant, being the eldest one, was handling the whole business. After partition, the accounts were settled by them in March, 1980 and a sum of Rs.55,000/- was determined to be paid to the plaintiff by defendant - Vishambhar Dayal. An entry to this effect was made in the account books of plaintiff - Chhajuram by defendant - Vishambhar Dayal on 18th April, 1980 which was made in the hand writing of Banshidhar, who happened to be their Manager. It was decided that the amount will be paid in annual instalments of Rs.5,000/- each. The first instalment will fall due on Baishakh Shudi 3 Samvat 2038. It was also decided that the whole amount shall fall due along with the interest @ 12% per annum on default of payment of any of the instalments. It has been stated in the plaint that the defendant did not pay any of the instalment despite notice. The first instalment became due on 18th April, 1981. As the amount of first instalment became out of the limitation period on 18th April, 1984, hence, the amount of Rs. 50,000/- only has been claimed by way of filing this plaint along with interest amount of Rs.26,000/- while waiving the claim to first instalment. 3. Defendant has completely denied the averments made in the plaint by way of filing his written statement. He had denied to have any joint business, settlement of the amount due towards plaintiff and writing of any deed acknowledging the amount due in the account books of the plaintiff. He has alleged such deed to be forged and fabricated. 4. In view of the pleadings, seven (07) issues were framed by the learned trial Court. He had denied to have any joint business, settlement of the amount due towards plaintiff and writing of any deed acknowledging the amount due in the account books of the plaintiff. He has alleged such deed to be forged and fabricated. 4. In view of the pleadings, seven (07) issues were framed by the learned trial Court. During trial, 6 witnesses were got examined on behalf of the plaintiff. Defendant examined 3 witnesses including himself. After hearing learned counsels for both the sides, the suit was decided as mentioned herein above. 5. During arguments, learned counsel appearing for the appellant has raised this legal issue that the defendants - appellants No. 4 to 7 are married daughters of the original defendant - Vishambhar Dayal. On account of death of defendant - Vishambhar Dayal during trial, they were impleaded as defendants in the capacity of legal heirs but they have not inherited the property left by defendant - Vishambhar Dayal on his death which took place on 15th June, 1991. He has argued that in view of this fact, the decree should not have been passed against them by the learned trial Court. This aspect has been completely ignored by the learned trial Court. The decree passed against appellants No. 4 to 7 deserves to be quashed and set aside on this ground only. 6. Learned counsel appearing for the respondent has not been able to answer the objection raised as above. 7. On perusal of the judgment impugned, nothing is available on record, as to why, decree has been passed against these married daughters of the original defendant - Vishambhar Dayal. Hence, the decree and judgment against appellants No. 4 to 7 deserves to be quashed and set aside on this ground alone. 8. Learned counsel for the appellant has raised another issue that the trial Court has completely ignored the statement of DW-1 Vishambhar Dayal treating it inadmissible in evidence on account of the fact that he could not be cross-examined as his death took place during trial. Learned counsel submits that the most crucial issue in deciding the suit was, whether any such entry acknowledging the amount of Rs. 55,000/- was made by the defendant in the account books of plaintiff. Defendant has completely denied this fact in his written statement as also in his statement as DW-1. Learned counsel submits that the most crucial issue in deciding the suit was, whether any such entry acknowledging the amount of Rs. 55,000/- was made by the defendant in the account books of plaintiff. Defendant has completely denied this fact in his written statement as also in his statement as DW-1. But the learned trial Court has decided this basic issue No.1 against the defendant mainly on the ground that statement of DW-1 is not admissible in evidence. Learned counsel for the appellant has referred the judgment in Mangal Sen v. Emperor reported in A.I.R. 1929 Lahore 840 (2) in this regard wherein, it was held that even if any witness has not been cross-examined, his evidence is admissible but the weight to be attached to it will depend upon circumstances on each case. 9. Learned counsel has also relied upon the judgment in Toga v. State of Rajasthan reported in 1981 RLW 56 wherein, it has been laid down as follows:- "9. ....................... It is apparent from a bare reading of this section that the right of cross-examination is there, but it is there only when the adverse party desires to exercise it. If the adverse party desires to cross-examine the witness that privilege has to be granted to it. But when the adverse party does not desire to cross-examine the witness, it can not be said that the right of cross-examination has been denied to it or that the statement is not complete for want of cross-examination." 10. Attention of this Court has been drawn to the statement of DW-1 Vishambhar Dayal which was recorded on 21st July, 1990. During cross-examination, being done by the learned counsel appearing for the plaintiff, an application was filed by him under Order 13, Rule 2 CPC to file certain documents in order to cross-examine the witness in regard to those documents. Contention of the learned counsel for the appellant is that prior to the Amending Act, 1999 which was came into effect from 1st April, 2002, the provision prevailing on 21st July, 1990 contained in Sub-rule (a) of Rule 2 Order 13 CPC was to the effect that Order 13, Rule 2 CPC was not applicable to the documents produced for cross-examination of witness of the other party. Learned counsel has submitted that in view of above provision, it was not required for the learned counsel of plaintiff to file an application under Order 13, Rule 2 CPC for producing certain documents to cross-examine the defendant. Despite this permission, learned counsel appearing for the plaintiff intentionally deferred the cross-examination of the defendant which ultimately could not be completed because of his death on 15th June, 1991. In view of above circumstances, the contention of the learned counsel for the appellant is that in fact, the plaintiff-respondent himself did not intend to cross-examine the defendant; and thus, it cannot be said that the right of cross-examination was denied to the plaintiff. In view of the principle laid down in Toga's case (supra), in my considered opinion, the statement of DW-1 (Vishambhar Dayal) could not have been ignored by the learned trial Court. 11. Learned counsel for the appellant has further supported his arguments by relying upon the judgment in the case of Dever Park Buliders Pvt. Ltd. & Ors. v. Smt. Madhuri Jalan & Ors. reported in AIR 2002 Calcutta 281. In this referred case also, the issue was, whether testimony of deceased defendant with unfinished cross-examination will be admissible and considered at the time of hearing or rendering judgment in this case or not ? After discussing various decisions on this point, it was held as follows:- "19. Therefore, from the aforesaid catena of decisions which are rendered in Civil cases and from the discussion reached by me herein above I hold that the testimony of the deceased defendant is admissible and the Court is bound to consider its weight to be attached for deciding this matter. Each and every proof in examination in chief does not require being cross-examined. There are cases where no cross-examination is really required. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit..............." 12. Learned counsel for the respondent has not been able to cite any of the judgments contrary to the propositions laid down in the above referred judgments. 13. Learned counsel for the respondent has not been able to cite any of the judgments contrary to the propositions laid down in the above referred judgments. 13. In light of the principles propounded in the above referred judgments and taking this fact into consideration that DW-1 Vishambhar Dayal was cross-examined by the opposite counsel to a good extent and further, since it was not required to defer the cross-examination as per the prevalent provisions of Order 13, Rule 2 CPC, I am of the considered opinion that the learned trial Court should not have completely ignored the statement of DW-1 (Vishambhar Dayal) while deciding issue No.1. This was the pivotal issue on which the fate of the case was substantially based. In my opinion, great prejudice has been caused to the appellants by completely ignoring the statement of DW-1 Vishambhar Dayal by learned trial Court in regard to this issue. 14. Besides it, this is worth mentioning here that as per the case advanced by the plaintiff, joint business run by the brothers including plaintiff and defendant came to an end seven Panchas determined the amount falling due to each of the partners of erstwhile business. On the basis of the decision given by Panchas, an acknowledgment deed for Rs. 55,000/- came to be written on behalf of defendant - Vishambhar Dayal in the account books of plaintiff - Chhajuram. It is relevant to mention here that in face of complete denial by the defendant regarding any such acknowledgment deed allegedly written on his behalf, the decision given by Panchas attain importance. Out of these 7 Panchas, PW-3 Sualal, PW-4 Girdharilal, PW-5 Sohan have been examined during trial. Aforesaid Panchas have stated the amount of settlement to be below Rs. 40,000/-. As per PW-4 Girdharilal, the amount due to be given to Chhajuram by Vishambhar Dayal was Rs.38,816/- as per Ex.10. Whereas, PW-5 Sohan has stated the amount to be Rs. 39,000/-. But statements of these witnesses have not at all been discussed by the learned trial Court while deciding issue No.1. When the statement of DW-1 Vishambhar Dayal was treated to be inadmissible in evidence by the trial Court, it was all the more important to examine the evidence of these witnesses. For non-reading of the evidence, the finding arrived at by the learned trial Court stands vitiated. 15. When the statement of DW-1 Vishambhar Dayal was treated to be inadmissible in evidence by the trial Court, it was all the more important to examine the evidence of these witnesses. For non-reading of the evidence, the finding arrived at by the learned trial Court stands vitiated. 15. Issue No.2 had been decided by the learned trial Court on the basis of the findings arrived by it in regard to issue No.1. Hence, the finding qua issue No.2 also requires further consideration. 16. Issue No. 3 had been decided by the learned trial Court vide order dated 6th March, 1986. It was with regard to admissibility of the acknowledgment written on 18th April, 1980. The said deed was treated to be admissible in evidence after depositing the due amount of the stamp fees. No challenge had been made by the defendant to this order dated 6th March, 1986, In my view, the decision on this issue has attained finality and cannot be re-agitated at this stage. 17. Issue No. 4 and 5 have not been pressed by the learned counsel appearing for the defendant before the trial Court and thus, the same have been decided in favour of the plaintiff. No arguments have been advanced by the learned counsel for the appellant before this Court also regarding these issues. Thus, the findings qua these issues are sustained. Issue No. 6 pertains to the relief clause only. 18. Issue No. 7 is with regard to the suit being barred by limitation which has been decided by the learned trial Court in favour of the plaintiff - respondent - Chhajuram. It had been stated that the plaintiff has waived the amount of Rs.5,000/- of first instalment falling due on 18th April, 1981, being barred by limitation. This fact of waiver has been pleaded in the plaint itself and the amount of interest thereon has also not been claimed. Learned trial Court, while relying upon the judgment in the cases of Shivdayal v. Ramrikh & Ors. reported in AIR 1955 Rajasthan 188 and Krishnan Madhavan v. Narayanan Jayadevan & Anr. reported in AIR 1975 Kerala 18 has come to the conclusion that in view of waiver of the first instalment and the amount of other instalments being well within limitation, the suit is treated to be within limitation. reported in AIR 1955 Rajasthan 188 and Krishnan Madhavan v. Narayanan Jayadevan & Anr. reported in AIR 1975 Kerala 18 has come to the conclusion that in view of waiver of the first instalment and the amount of other instalments being well within limitation, the suit is treated to be within limitation. I do not find any infirmity in the finding arrived at by the learned trial Court in this regard. Thus, finding in regard to this issue given by the trial Court is sustained. 19. In view of the discussions made herein above, this appeal deserves to be partly allowed in above terms and the judgment and decree dated 22nd January, 1998 deserves to be quashed and set aside with the direction to the learned trial Court to decide issue No.1 and 2 afresh in the light of the evidence available on record including the statement of DW-1 Vishambhar Dayal in view of the observations made herein above. 20. While parting with, it will be pertinent to note that the suit was filed in the year 1992 and learned trial Court decided the same on 22nd January, 1998. It is really painful that the first appeal preferred by the defendants - appellants is being decided in the year 2017. It is all the more painful that in the facts and circumstances of the case, the matter is being remanded to the trial Court for deciding issue No. 1 and 2 afresh. Thus, in view of this protracted history of proceedings, it is desirable that learned counsels appearing for both the parties will make every endeavour to assist the trial Court by advancing their arguments at the earliest and the trial Court is also expected to take necessary steps for expeditious disposal of the suit, essentially, within a period of six months from the date of receiving certified copy of this judgment along with the record. 21. A copy of this judgment along with the original record be sent forthwith to the learned trial Court concerned for information and necessary compliance as mentioned above.