T.R. Ramachandran Nair, J.
This appeal is by the defendant, aggrieved by the order dated 27.01.2014 in I.A. No. 780/2013 in O.S. No.311/12 of the Sub Court, Karunagappally.
2. We heard the learned counsel on both sides. The application in question was filed by the appellant under Order IX Rule 13 of the Code of Civil Procedure. Evidence was let in by the appellant and PW1 was examined in support of his averments in the affidavit.
3. The learned counsel for the appellant pointed out that a technical approach has been adopted by the Court since a mistake in the affidavit with regard to the time at which the petitioner had visited the Doctor has been highlighted to reject the application. It is submitted by the learned counsel for the respondent that when the Doctor was examined as PW1, he had deposed that he examined the appellant at 10.00 a.m. on 24.05.2013 which is contrary to the averments in the affidavit in support of the I.A.
4. We have perused the order passed by the Court below. This is a case where the Doctor has deposed before the Court that he had examined the patient. It is not a case where any malafidies has been pointed out or alleged against the petitioner.
The suit is for money and the amount involved is more than 5,00,000/- . In the light of the contest made by the appellant on the merits of the matter, we are of the view that one more opportunity can be given to the appellant. Accordingly, we allow the appeal and set aside the impugned order on condition that the appellant will pay an amount of Rs.1,000/- as costs to the respondent. The parties will appear before the Court below on 14.07.2014. Costs will be paid within three weeks and a memo will be filed before this Court.
T.R. RAMACHANDRAN NAIR, JUDGE P.V. ASHA, JUDGE DMR/-
(Contd 3) Certified that the appellant has paid an amount of Rs.1,000/- (Rupees one thousand only) as costs to the counsel for the respondent within the time stipulated in the judgment dated 18.06.2014 in F.A.O. 103/2014, vide memo c.f. No.3650/2014 dated 03.07.2014.
Sd/- Registrar (Judicial)