HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. C227)No. 862 of2009 Petitioner Defendant Respondents Plamttff Gurmit Singh Saini S/o Pritam Singh Saini, aged about 65 years, R/o Near Gumdwara, Shyamnagar, Raipur, District Raipur (CG). Versus 1. Chaitram @ Chetan Singh, S/o Late Manohar Todar, R/o village Devpuri, Tahsil and District Raipur (CG). 2. State of Chhattisgarh, through the District Magistrate, Raipur, District Raipur (CG). Writ Petition under Article 227 ofthe Constitution oflndia (Smgle Bench: Hpn'ble Mr. N.K. Agarwal, J.) Present : ShriP.P. Sahu, Advoeateforthepetitioner. Shri A.K. Prasad, Advocate forthe respondeutNo. 1. Ms. Sangeeta Mishra, Panel Lawyer for the State/respondent No.2. QRALORDER (Passed on 6U1 day ofMay, 2009) 1. The instant petition is directed against the order dated 12.11.2008 (Annexure P/l), passed by the Xth Additional District Judge (FTC), Raipur (CO), in Mise. Civil Appeal No. 14/07, whereby the appeal preferred by the petitioner was dismissed and the order dated 03.08.2007, passed by the Vtlth Civil Judge Class II, Raipiir, in cml suit No. 76A/2007,was afFmned. 2. The main contention raised by the petitioner is that the order dated - 03.08.2007, passedbythe \T.Vh Civil Judge Class II, Raipur, in civil suit No. 76A/2007 was an ex parte order as the same was passed before service of summons upon the petitioner/plaintifF and therefore, that order ought to have passed by the court below at the most till hearing ofthe petitron under Order 39 Rule 1 & 2 ofCPC. But fhe same was passed by the trial court till disposal of suit and also afiirmed by the appellate court which is perse-illegal and deserves to be set aside, as any order passed ex parte, can only be passed under Order 39 Rule 3 ofCPC. Leamed counsel appearing for the petitioner submits that this petition may be disposed of with a direction to the trial court to decide the application under Order 39 Rule 1 & 2, filed by the plaintiffafresh, on its own merits, in accordance wifh law, preferably within a period ofthree months. Prayer is not opposed by Shri A.K. Prasad, counsel for the respondent No. 1. \ • Therefore, it is directed that the trial court shall decide the application of plaintiff filed under Order 39 Rule 1 & 2 of CPC afresh after hearing bofh the parties, on its own merits, preferably within a period ofthree months from the date ofreceipt ofa copy of this order. It is further ordered fhat till then, the party shall maintain status quo in terms oforder 03.08.2007, passed bythe VIIth Civil Judge Class II, Raipur, in civil suit No. 76A/2007. With fhe above observation, fhis petition stands disposed of. No order asto costs. ,r— Sahu Sd/- f.K. Agrawal Judge 6,0 t.._i. '"-<