Re-examination can only be allowed for new introduced facts and cannot be used to explain or fill gaps after the evidence of the other party has been examined.

Veena Birbal, J. (Oral)-In the present case, ex parte divorce was granted to respondent/husband in the year 1987. On 13th July, 1987, petitioner/wife had moved an application under Order 9 Rule 13 for setting aside ex parte divorce decree alleging that the husband had obtained the same by fraud and concealment. The proceedings for setting aside ex parte decree are still going on before learned ADJ. It is stated that presently the aforesaid application is at the stage of final arguments.

2. According to petitioner/wife, her part examination-in-chief was recorded on 4.1.2001, further examination-in-chief was recorded on 11.12.2006 i.e. after a gap of five years. On 18.1.2007, the respondent/ husband had cross-examined the petitioner. The evidence of respondent/ husband has also been recorded. Thereafter, petitioner moved an application under Order 18 Rule 17 read with Section 151, CPC for recalling and re-examining PW1, i.e. petitioner. Her contention is that injustice will be done to her if she is not allowed to be re-examined. The said application has been dealt in detail by learned ADJ vide impugned order dated 13.3.2008. The relevant portion of the order is reproduced below:

"It is settled law that the witness can be re-examined if the witness is present in the witness box and after completion of the cross-examination, he can be re-examined but the re-examination can only be confined to new introduced facts. It is not stated as to what are new facts in cross which was recorded long back. Further, now at this stage when the witness of the other party has been examined, it is not permissible to explain or fill the gaps after going through the evidence of other by way of re-examination or recalling the witness. This application is mischievous and is without any merit, hence dismissed."

3. Even in the present petition, it is not stated as to what has come in cross examination which needs explanation by way of re-examination. It is also not stated as to what prejudice will be caused to her in case she is not allowed re-examination. It may be noted that matter is pending since 1987 and is still at the stage of disposal of application for setting aside of ex parte decree.

4. Under the circumstances, I do not find any case for interference under Article 227 of Constitution of India. Present petition is accordingly dismissed.

Petition dismissed.