Today is fixed for hearing of the MA case.  Both sides are found ready.  Heard and considered submission of the applicant side and op .

It is the main point of contention and argument of the applicant side that due to illness of the Govt. pleader the applicant failed to take steps and for that reason an order of ex parte has already been passed.  It is also pointed out that there is no fault on the part of the applicant side.

On the other hand the op contested this matter by filing written objection and pointed out the defect which has been detected in the petition filed under order 9 rule 7 CPC.  As per submission of the op in this case order 9 rule 13 would apply but order 9 rule 7 is not applicable.  Over this issue op prayed before this district commission for dismissing this MA case.

After going through the material of the case record it is reflected that the applicant side is praying before this district commission for setting aside ex parte order on the ground of illness of the Govt. pleader.  In course of hearing the op admitted the fact that ld. Govt. pleader was ill for a considerable period.  Relating to the legal question raised by the op that the provision of order 9 rule 7 shall not  apply in this case, it is settled principle of law that order 9 rule 13 of the CPC on one hand provides for a mechanism to seek the cancellation of an ex parte decree finally disposing of the suit, whereas, under order 9 rule 7 of the CPC  on the other hand provides for a mechanism to seek the cancellation of an ex parte order.  Considering this aspect this district commission is of the view that applicant side has rightly applied provision of order 9 rule 7 in this MA case.

This district commission is of the view that there is justified reason for setting aside the ex parte order.  Particularly when the applicant side has already filed w/v in main case being no.CC/178/22.

So prayer of the applicant side for setting aside ex parte order is allowed and thus the MA case no.28/23 is allowed on contest.  This district commission is of the view that the op of C.C. case no.178/22 who is the applicant of this MA case can be given opportunity for filing evidence on affidavit.

In the light of the observation made above the MA case no.28/23 is disposed of on contest.  Let the order of ex parte hearing against the applicant side is set aside.  No order is passed as to cost.

Let the case record of MA case no.28/23 be tagged with the CC case no.178/22