HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW MATTERS UNDER ARTICLE 227 No. - 6858 of 2025 Court No. - 6 HON'BLE JASPREET SINGH, J. 1. Heard the learned counsel for the petitioner. 2. Under challenge is the order dated 18.10.2025 passed by the Additional Principle Judge, Family Court no.1, Barabanki in Case No.11 of 2021 whereby an application moved by the private respondents indicating that D.W.2 will not be presented before the Court for completion of her cross examination and upon the said application the trial court allowed the application specifically noticing that the examination in chief of the D.W.2 shall not be considered as evidence since the D.W.2 has not appeared before the Court for completion of her cross examination. 3. Aggrieved by the aforesaid order, the instant petition has been filed and Shri R. K. Suryvanshi, learned counsel for the petitioner has made a two fold submissions:- (i) The order passed by the Family Court is in ignorance of the objections filed by the petitioner; inasmuch as in case if the defendant did not wish to examine D.W.2 the fact remains that the said witness was in the hands of the petitioner for her cross examination, hence a specific request was made by the petitioner for recalling the said witness which has not been considered; (ii) the evidence which has been led by the petitioner and which was being confronted to D.W.2 and finding in an awkward position the defendant took the decision of not presenting the said witness before the Court which is also not appropriate as Versus Counsel for Petitioner(s) : Raj Kr Singh Suryvanshi Counsel for Respondent(s) : C.S.C. Raghvendra Nath Pathak Alias Raghvuender Nath Pathak .....Petitioner(s) State Of U.P. Thru. Prin. Secy. Law And 2 Others .....Respondent(s) valuable right of the petitioner to cross examine D.W.2 has been taken away and for the aforesaid reason, the impugned order is bad in law. 4. Having considered the aforesaid submissions and from the perusal of the material on record, apparently the proceedings pending before the Additional Principal Judge, Family Court No.1, Barabanki relates to matrimonial proceedings registered as Case No.11 of 2021 wherein the petitioner is the plaintiff and the private respondent no.2 is the defendant. 5. The record indicates and it is also not disputed by the petitioner that the plaintiff evidence has concluded and it was the defendant who was leading the evidence. The record further indicates that an application was moved by the defendant of the suit specifically stating that the D.W.2 on account of ill-health could not be presented and therefore the defendant in her wisdom had chosen to withdraw the D.W.2 as witness, while the cross examination of D.W.2 was in progress. 6. In the aforesaid backdrop the petitioner filed his objections primarily based on the two submissions which have been noticed herein above. Considering the order dated 02.07.2025 the Court concerned has clearly noticed that the examination in chief of D.W.2 would not be read as D.W.2 has not presented herself for completion of the cross examination. 7. In the aforesaid circumstance where the evidence of D.W.2 has been directed not to be considered, there cannot be any prejudice to the petitioner. The petitioner has already concluded his evidence, it is open for the defendant to file the evidence of its choice. In case if one witness was introduced and later it has been chosen by the party concerned to withdraw the same and the court clearly noticed that the examination in chief of the said witness will not be considered or be read in evidence it takes care of and the grievance raised by the petitioner as the plaintiff cannot compel the defendant to examine any particular witness. A227 No. 6858 of 2025 2 8. As far as the submission that the petitioner was confronting his evidence in cross examination with D.W.2, that does not come to the aid in impugning the order for the reason that had that witness not been examined in the first occasion, even then it was the duty of the petitioner to establish his own case by his own evidence. 9. The submission of the learned counsel for the petitioner that he wanted to recall D.W.2 as a witness cannot be countenance for the reason that the provision for recalling a witness as per the Evidence Act in a situation where the witness has already deposed and his evidence is concluded and later some issue crops up for which the said witnesses is required and that too is not a matter of right but only in befitting case. However, this is not the position here. Hence to state that the petitioner wishes to recall D.W.2 as a witness, is untenable. 10. Leaving it open for the petitioner to take recourse as may be available to him in law but there is no error in the order passed by the Court which may persuade this Court to entertain the petition. 11. For the aforesaid reasons, this Court does not find that there is any merit in the petition which is accordingly dismissed leaving it open for the petitioner to take recourse as may be available to him in law. November 26, 2025 ank A227 No. 6858 of 2025 3 (Jaspreet Singh,J.) Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench