IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 FAO.No. 124 of 2008() --------------------- I.A.3783/2007 IN OS.194/2002 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): PETITIONER/DEFENDANT ----------------------------------------------------------- K.P.RAJAN, S/O.KAVUNGAL PAZHANIMALA AGED 73 YEARS, PANANGATTIRI, ELAVANCHERRY CHITTUR TALUK, PALAKKAD DISTRICT BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI RESPONDENT(S): RESPONDETN/PLAINTIFF ----------------------------------------------------------- CANARA BANK, KOLLENGODE BRANCH KOLLENGODE, PALAKAD DISTRICT ADV. SRI.V.B.HARI NARAYANAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 124 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2009. JUDGMENT Raman, J, Defendant is the appellant. In a suit for money instituted by the Bank, he was set ex-parte. He filed the application seeking to set aside the order in time under Order IX Rule 13 of Code of Civil Procedure. The ground urged for non-appearance on the appointed day was that he was suffering from chickun guniya and due to this he was also suffering from pain in his joints and also back pain. He produced the certificate from the Doctor, who treated him for the ailment. True that he was not examined. But in the absence of any contra evidence and taking note of the fact that the petitioner is aged 73 years, we take a lenient view and think it is appropriate to give him one more opportunity to contest the suit, but on terms. F.A.O. No.124/2008. 2 In the circumstances, the order passed by the court below is set aside and the suit is restored to file on condition that the appellant shall pay a sum of Rs.2,000/- by way of costs to the respondent. This may be paid either directly to the respondent or produce the receipt on depositing the same before the court below within a period of one month from today, failing which the appeal shall stand dismissed. P.R. Raman, Judge P. Bhavadasan, Judge sb.