IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1921 of 2008 LAKHO DEVI @ LAKHPATI DEVI Versus JAWED EKBAL & ORS ----------- 2. 19.11.2008 Heard counsel for the petitioner. All that has been done by the impugned order is that the prayer of the plaintiffs has been allowed for completing their evidence, part of which was already led before entrance of the defendant petitioner. To clarify this aspect it is to be noted that in a suit of the year 1991 when the defendant petitioner did not appear for a long period of time an ex-parte order was passed and thereafter when the suit had proceeded ex-parte against the defendant petitioner, the plaintiff had also examined certain witnesses. Subsequently such ex- parte order was set aside and the defendant petitioner was allowed an opportunity to file his written statement as also cross- examine the witnesses of the plaintiffs. Against such an order dated 13.9.2000 the plaintiffs-opposite parties had moved this Court in C.R.No. 2073/2000 which was disposed of by an order dated 20th August, 2001 wherein it was held that the order of 2 the court below dated 13.9.2000 either with regard to allowing the defendant petitioner to cross-examine the witnesses or the question of framing of issues was wholly justified and required no interference by this Court. It was in that context that this court had also clarified that it was open to the trial court to see whether the proper adjudication could be made without framing of issue afresh in view of the fresh pleadings brought on record by way of written statement filed by the defendant petitioner. It appears that thereafter when the matter had proceeded and the defendants had filed their written statement the plaintiffs came out with a plea that as the certain issues which were not in notice of the plaintiffs as has been raised in the written statement, it would be in the interest of justice that he may be first allowed to complete the evidence of his witnesses including those who had already been examined earlier before they are offered for their cross-examination to the defendant petitioner. Such an application has been allowed and the court had directed only a 3 firm time limit of two months to the plaintiffs for doing so. Mr. S.K.Mazumdar, learned Senior counsel appearing on behalf of the petitioner, would submit that as a matter of fact the impugned order is in violation of the order of this Court, inasmuch as when the earlier order of the court below dated 13.9.2000 was not interfered with, the directions made therein had merged with the order of this civil revision application and accordingly, the court below was not justified in sitting over the order of this Court. I am not in a position to accept the submission inasmuch as what was held by this Court vide order dated 20.8.2001 in C.R.No. 2073/2000 was limited to the extent that an opportunity should be given to the defendant petitioner for cross-examining the plaintiffs’ witnesses as a consequence of recall of ex-parte order and only that was affirmed by this Court. This Court never precluded or restrained the plaintiffs- opposite parties, the petitioners in the civil revision application, not to lead their any further evidence. 4 As a matter of fact when the defendant-petitioner has been given an opportunity by the Court after setting aside the ex-parte order and he has come out with a pleadings, any evidence to be led by the plaintiffs must be in consonance with the pleadings made by the parties and therefore, it would not be correct to say that whatever evidence is led by the plaintiffs prior to appearance of the defendant petitioner must be the only basis for deciding the suit. It is well settled principle that no one can take advantage of his own wrong. If the defendant petitioner made the plaintiff- opposite party wait for ten years for their appearance and contest the suit they cannot now make a grievance that on account of impugned order allowing the plaintiffs to lead further evidence and complete it, they would be prejudiced in any manner. That being so, this Court would not find any merit in this application, which is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/