( 1 ) THIS is a revision filed by the defendant against the order of the Additional Chief judge, City Civil Court, dated 8th Feb. 1977 in c. M. A. No. 23 of 1976 allowing the appeal filed by the plaintiff and setting aside the order of the First Assistant Judge who dismissed I. A. No. 88 of 1975 on 17th Sept. 1975 which was filed by the plaintiff for setting aside the ex parte order dated 16th Jan. , 1975.

( 2 ) THE learned counsel for the petitioner defendant contended that the petition filed by the respondent under O. 9m R. 7 C. P. C. is not maintainable. It was further contended that the affidavit of the respondent-plaintiff was not filed in support of the petition under O. 9, R, 7 C. P. C. The respondent has no case on merits and it serves no useful purpose even if the case is sent back to be adjudicated on merits.

( 3 ) TAKING the first point it can be observed that the respondent filed the petition under O. 9, R. 7, C. P. C. , but no objection seems to have been taken before the trial Court as regards the maintainability of the petition. in fact, it is admitted that the trial Court has dealt with the petition on merits and held that there was no sufficient cause for non-appearance of the petitioner and his Advocate on 16-1-1975. Accordingly, the trial Court dismissed the petition.

( 4 ) THE question of maintainability was taken in the appellate Court. The appellate Court dealt with the matter under point No. 3 framed by it. it held that the order passed by the trial Court 0n 16-1-1975 was an ex parte order and liable to be set aside under O. 9, R. 13, C. P. C. This aspect was, of course, dealt with by the lower Court under point No. 2 in great detail. Suffice it to say that on the facts and in the circumstances of the case the order passed by the trial Court shows that the respondent in the I. A. was set ex parte and order dated 16-1-1975 passed is extracted below:---"respondent (Plaintiff ) and his counsel are called Absent. Waited up to 4-45 P. M. No representation for respondent. The respondent is set ex parte. The petition is allowed. "irrespective of any other consideration, on the face of it, it shows that the respondent was set ex parte. Whatever might have been mentioned in the petition, the substance of the petition is to set aside the order. It is well settled that the Court would be guided by the substance of the petition and not by the provisions that are quoted under which the petition is filed. Whether the substance and the prayer clearly indicate that the petition is filed under O. 9, R. 13 of not, the Court could treat the petition under that particular provision of law and adjudicate the same, Merely because O. 9, R. 7 is quoted in the petition, that does not take away the jurisdiction of the Court to treat the petition as one filed under O. 9, R. 13 and adjudicate the same. In my view this contention is devoid of any force.

( 5 ) THE learned counsel for the petitioner relied on the decision in Malleshappa v. Firm of Veer Chand, AIR 1965 Mys 300. In that case the revision was filed against an interlocutory order wherein the opposite side was set ex parte and the case was adjourned for taking further proceedings in the matter. , Subsequently the case was disposed of ex parte and a decree was passed. When the revision came up for hearing, it was brought to the notice of the High Court that the decree had already been passed and no useful purpose would be served by an interlocutory order and that the interlocutory order will not have any effect of setting aside the decree passed subsequent to the order against which the revision is filed. Unless an appeal is filed or proceedings are taken to set aside the decree under the law the order to be passed by the High Court would not enure to the benefit of the defendant or the respondent. In those circumstances the High Court dismissed the revision petition. In my view, that judgement has no application to the facts of the present case.

( 6 ) THE