Dr. Ritu Ghosh Sengupta Vs Additional Principal JUDGE-8, Family Court, Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:35616

Court No. - 7

Case :- MATTERS UNDER ARTICLE 227 No. - 1814 of 2024

Petitioner :- Dr. Ritu Ghosh Sengupta Respondent :- Additional Principal Judge-8, Family Court, Lko. And Another

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Counsel for Petitioner :- Vivek Kumar Rai,Pranshul Tripathi Counsel for Respondent :- Sanjeev Kumar Singh,Puneet Saxena

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Hon'ble Alok Mathur,J.

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Heard Shri Vivek Kumar Rai, learned counsel for petitioner, Shri Sanjeev Kumar, learned counsel for respondent no. 2 and perused the material available on record.

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By means of the present writ petition under Article 227 of the Constitution of India, the petitioner has challenged order dated 22.02.2024 passed by the Additional Principal Judge, Family Court, Lucknow in Matrimonial Case No. 1872 of 2019 wherein the application for recall of witness preferred by the petitioner was rejected.

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It has been submitted by learned counsel for petitioner that the respondent no. 2 and the petitioner are the husband and wife and had got solemnized marriage as per Hindu rites and rituals on 31.01.1994 and out of the said wedlock, a daughter had born on 09.08.1995. The respondent no. 2- husband has filed a case for divorce bearing Matrimonial Case No. 1872 of 2019 under Section 13 of the Hindu Marriage Act before the Principal Judge, Family Court, Lucknow which was subsequently transferred to Additional Principal Judge, Family Court, Lucknow.

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It is stated that that PW-1 (respondent no. 2) was examined in the said trial sometimes in 2021 and even cross-examination

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was concluded on 07.11.2023 by the petitioner. It is further submitted that in the meanwhile, the mediation proceedings had also been initiated, which did not succeed.

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In the aforesaid circumstances, the petitioner had moved an application for recall of PW-1 (respondent no. 2) for further cross-examination on 05.02.2024. The said application was opposed by respondent no. 2 and the same has been rejected by means of order dated impugned order dated 22.02.2024. The trial court was of the view that adequate opportunity to crossexamine the respondent no. 2 was provided to the petitioner and his counsel, which has been concluded at only with the view to delay the said trial, the application for recall has been made.

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Learned counsel for petitioner has submitted that while assailing the said order has submitted that at the time when the respondent no. 2 was cross-examined, a junior counsel had appeared and was not fully competent to conduct the crossexamination and consequently, it would be failure of justice in case the petitioner is not permitted to cross-examine the respondent no. 2. To consider the issue raised in the present petition, the relevant provision is contained under Order 18 and Rule 17 of the Civil Procedure Code where a discretion has been vested in the court court to recall and examine the witness. It has been provided that the Court may at any stage of a suit recall any witness to be examined and put such question to him as the court may think fit. Accordingly, there has to be a reasonable cause shown by the parties whenever an application under Order 18, Rule 17 of the C.P.C. is made.

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In the present case, it seems that effective cross-examination could not be carried out at the previous stage for which purposes, the present application has been made.

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Learned counsel for respondent no. 2 on the other hand, has

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opposed the writ petition. It has been submitted that the said application has been made merely to delay the said proceedings and there is urgency in the matter requiring expeditious disposal of the pending divorce proceedings.

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He submits that in case the prayer of the petitioner is found to be genuine then he would have no objection in case the crossexamination would be done within the time prescribed by this Court.

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Accordingly, the application for recall of witness have to be adjudicated considering the reasons stated in the said application and it should be taken care that substantial rights of the parties are not defeated by mere technicalities and sufficient reasons have been indicated to allow the application for recall of witness accordingly, the writ petition is allowed with the following condition:-

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(i) It is provided that the parties shall appear before the trial court on 22.05.2024. On the appearance of the parties, the petitioner shall be permitted to cross-examine respondent no. 2. In case, for any reason the proceedings cannot take place on 22.05.2024, or they remain incomplete, the trial court shall fix any suitable date within next ten days to give opportunity to the petitioner to cross-examine the respondent no. 2.

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It is made clear that though the window of opportunity for crossexamination shall be adhered to as provided by this Court in case the petitioner is unable to cross-examined for any reason, no further time shall be granted by the trial court for this purpose.

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With the aforesaid observations/directions, this writ petition is allowed and the impugned order dated 22.02.2024 passed by the Additional Principal Judge, Family Court, Lucknow in Matrimonial Case No. 1872 of 2019 is set aside.

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(Alok Mathur, J.)

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Order Date :- 8.5.2024 Virendra

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Digitally signed by :- VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

Dr. Ritu Ghosh Sengupta v. Additional Principal JUDGE-8, Family Court, Lko. and Another

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Dr. Ritu Ghosh Sengupta v. Additional Principal JUDGE-8, Family Court, Lko. and Another

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