ORDER : IN SCA-10874 OF 2018 1. By preferring this petition, petitioner has challenged the order passed below Exh.36/1 dated 03.01.2018 by learned Principal Senior Civil Judge, Vadodara giving liberty to respondent/objector for cross-examination of petitioner and producing evidence after 19 years and six months. 2. Heard learned advocates for the respective parties. 3. Learned advocate for petitioner has submitted that the impugned order passed below Exh.36/1 dated 23.06.1998 to reopen the rights of the respondent to cross-examine the petitioner is clearly illegal and erroneous as the application Exh.55 was given by respondent on 13.07.1998 to implead him as party. It is further submitted that as objector/respondent was there in the proceedings as objector, such a permission cannot be granted after passing of 19 years by the Court-below. It is further submitted that respondent had also filed Special Civil Application No.2425 of 1999 to quash and set aside the entire proceedings of probate application which was dismissed by this Court. It is further submitted that Civil Revision Application No.1351 of 1999 was preferred against the order passed below Exh.55 was also dismissed by the Court and application Exh.55 was remanded back to the Trial Court for fresh hearing vide order dated 30.01.1999. It is further submitted that however, chief examination of petitioner was submitted on 01.05.1997, application to reopen the rights for cross-examination was given at a very late stage on 23.06.1998. It is further submitted that petitioner had filed closing pursis vide Exh.33 on 01.05.1997 and no prayer was made by respondent herein to permit him to cross-examine petitioner. Hence, it is requested by learned advocate for petitioner to quash and set aside the impugned order dated 03.01.12018 passed below Exh.36/1 permitting respondent herein to cross-examine petitioner. In support of his arguments, learned advocate for petitioner has relied upon the following judgments: (i) Menashi Rajabhai Kathad Vs. State of Gujarat reported in 2017 (2) GLR 1412 ; (ii) Vadiraj Naggapa Vernekar (D) through Lrs. Vs. Sharad Chand Prabhakar Gogate reported in 2009 (4) SCC 410 ; (iii) K.K. Velusamy Vs. N. Palanisamy reported in 2011 (11) SCC 275 ; 4. From the other side, learned advocate appearing for respondent has submitted that no illegally is committed by learned Trial Court in granting permission to cross-examine the petitioner as per the order passed below Exh.36/1 dated 03.01.2018. N. Palanisamy reported in 2011 (11) SCC 275 ; 4. From the other side, learned advocate appearing for respondent has submitted that no illegally is committed by learned Trial Court in granting permission to cross-examine the petitioner as per the order passed below Exh.36/1 dated 03.01.2018. It is further submitted that in the probate application preferred by petitioner, the present respondent herein was not party. It is further submitted that as per the order passed below Exh.55, on 25.09.1998, respondent herein was permitted to participate in the proceedings and objections preferred against respondent were ordered to be taken into consideration. It is further submitted that against the order passed below Exh.55 on 25.09.1998, the present petitioner challenged the order before learned Extra Assistant Judge in Civil Misc. Appeal No.430 of 1998. It is further submitted that said Misc. Civil Appeal preferred by petitioner was not considered on merits and the matter was remanded back to the Trial Court for fresh hearing of application Exh.55 by providing opportunity to the Santram Temple Trust if they so chose vide order dated 30.01.1999. It is further submitted that the said order was challenged by the present respondent in Civil Revision Application No.1351 of 1999 before this Court, wherein the order passed in Civil Misc. Appeal No.430 of 1999 by the Extra Assistant Judge, Vadodara was confirmed and Revision Application was dismissed in limine. It is further submitted that the Trial Court decided the application Exh.55 afresh and vide order dated 08.08.2014, application Exh.55 was partly allowed and objections taken by respondent were ordered to be recorded and considered. It was further ordered that objectors have right to take part in the proceedings of probate application. It is further submitted that respondent herein was never permitted to cross-examine the petitioner as chief examination was filed on 01.05.1997. It is further submitted that present petitioner was never party in the probate application preferred by the present petitioner i.e. Probate Application No.261 of 1996 and as per the order passed below Exh.55, he was permitted to participate in the probate application. The right to cross-examination of petitioner was a material defence on the part of respondent and it cannot be curtailed by the Court-below. It is further submitted that as per the order passed below Exh.1 in Probate Application No.261 of 1996, Probate Application was converted into Regular Civil Suit vide order dated 03.01.2018. The right to cross-examination of petitioner was a material defence on the part of respondent and it cannot be curtailed by the Court-below. It is further submitted that as per the order passed below Exh.1 in Probate Application No.261 of 1996, Probate Application was converted into Regular Civil Suit vide order dated 03.01.2018. Hence, it is requested by learned advocate for respondent to dismiss the petition. 5. Having heard learned advocates for the respective parties and material produced on record, it appears that Civil Misc. Application No.261 of 1996 was preferred by present petitioner to obtain probate of Will exhibited in favour of petitioner by mother – Dayaben Chhotalal Mehta. Initially, probate application was preferred by Dayaben Chhotalal Mehta and as she died during the proceedings, present petitioner preferred an application to permit him to join as party to the proceedings, which was allowed and the issues were framed by the Trial Court vide Exh.20 on 09.04.1997. On 01.05.1997, affidavit in chief examination was preferred by the present petitioner vide Exh.30. The matter was fixed on next day for explanation of cross-examination by the Court-below. It appears from the record that vide Exh.33 on the very same day i.e. on 01.05.1997, closing pursis was filed by the petitioner before the Court. There is nothing on record that cross examination of petitioner was carried out by respondent herein. No copy of Rojkam is produced on record by the petitioner. It also appears from the record that the right to cross examination of petitioner was never closed by the Courtbelow. Admittedly, the present petitioner was not party in the probate application preferred by petitioner before the Courtbelow. On 13.07.1998, the respondent herein, who is the objector of the probate application, preferred an application to implead him as necessary party which was partly allowed by learned 6th Joint Civil Judge (S.D.), Vadodara on 25.09.1998. Against the said order, Civil Misc. Appeal No.430 of 1998 was preferred before the District Court, Vadodara by present petitioner, wherein learned Extra Assistant Judge, Vadodara vide his order dated 30.01.1999 remanded the matter back to the Trial Court to decide it as afresh by giving opportunity of hearing to both the parties. Aggrieved by the impugned order dated 30.01.1999, respondent herein preferred Civil Misc. Application No.1351 of 1999 before this Court. On 15.03.1999. Aggrieved by the impugned order dated 30.01.1999, respondent herein preferred Civil Misc. Application No.1351 of 1999 before this Court. On 15.03.1999. This Court was pleased to dismiss the Revision Application preferred by respondent in limine and confirmed the order of learned Trial Court vide order dated 15.10.1999. During the pedency of Civil Revision Application No.1351 of 1999, respondent herein filed another proceedings being Special Civil Application No.2425 of 1999 on 05.04.1999 with a prayer to quash and set aside the entire proceedings of the Probate Application No.261 of 1996. Said Special Civil Application No.2425 of 1999 was dismissed by this Court on 16.08.1999. Application Exh.36/1 was filed on 23.06.1998 to reopen his right to cross-examine the petitioner. The impugned order was passed on 03.01.2018 to reopen the right of the respondent to cross-examine petitioner. Thereafter, it appears that as per the order passed below Exh.1 on 03.01.2018, considering the dispute pending between the parties, for proper adjudication, Court-below converted the probate application into Regular Civil Suit. There is no submission from the petitioner that why the order passed below Exh.1 is erroneous or illegal. From the record, it appears that there was never cross examination of the petitioner carried out by respondent herein. After filing an affidavit on 01.05.1997. Application Exh.36/1 was submitted by respondent herein on 23.06.1998, which was ultimately decided on 03.01.2018. Between two these periods, certain litigations were initiated by petitioner or by respondent before the Competent Court of law. There was no fault on the part of respondent to give an application Exh.36/1 requesting to permit him to cross-examine petitioner on 23.06.1998. Petitioner, surprisingly, passed a pursis Exh.33 on the very same day of closing his evidence without giving an opportunity to respondent and was aware that no cross examination of petitioner was carried out by respondent herein. It was not necessary on the part of respondent to make prayer on the very same day while closing pursis Exh.33 was preferred by petitioner or to make any request to permit him to cross-examination. It was the duty of the Court to see that respondent herein was not permitted to cross-examine and closing pursis was preferred by petitioner. The right to cross examine is an essential right to arrive at a conclusion of the trial and it cannot be curtailed by the Court. The judgment in the case of Menashi Rajabhai Kathad Vs. It was the duty of the Court to see that respondent herein was not permitted to cross-examine and closing pursis was preferred by petitioner. The right to cross examine is an essential right to arrive at a conclusion of the trial and it cannot be curtailed by the Court. The judgment in the case of Menashi Rajabhai Kathad Vs. State of Gujarat (supra) relied upon by learned advocate for the petitioner is based under Section 311 of the Code of Criminal Procedure, 1973 in respect of recalling of witness. Another judgment relied upon by learned advocate for petitioner in the case of K.K. Velusamy Vs. N. Palanisamy (supra) is relating to Order 18 Rule 17 of the CPC. It was observed by the Hon’ble Apex Court that it is for Courts-below to consider whether it was necessary to reopen the evidence and if so, in what manner and to what extent further evidence should be permitted. In the case of Vadiraj Naggapa Vernekar (D) through Lrs. Vs. Sharad Chand Prabhakar Gogate (supra), it was in connection with under Order 18 Rule 17 of the CPC, wherein power of Court to recall and examine witness was discussed. Here, in the instant case, there is no question of recalling the present petitioner for examination by respondent as he was never given an opportunity to cross examine the petitioner. 6. Under the circumstances, the Trial Court has not committed any error in permitting respondent to cross examine the petitioner or converting the probate application in Regular Civil Suit considering the dispute pending between the parties. Hence, this petition is hereby ordered to be dismissed. Notice is discharged. B.N. KARIA, J ORDER IN CA-1 OF 2018 In view of the order passed by this Court in the main matter, the present Civil Application does not survive and accordingly, the same is dispose of.