Aravind Kumar, J.

1. This is plaintiff's appeal questioning the order passed by VII Additional City Civil Judge, Bangalore dated 11.09.2013 in Misc. No. 87/2010 whereunder petition filed by defendant under Order IX Rule 13 read with sections 141 and 151 of C.P.C. has been allowed and Judgment and decree passed in O.S. 2699/2004 on 28.07.2009 decreeing the suit has been set aside and suit has been restored to file on payment of cost of Rs. 2,000/- payable by defendant/petitioner to respondent-plaintiff. I have heard the arguments of Sri. C.G. Gopalaswamy, learned counsel appearing for petitioner and Sri. B. Prabhakar, learned counsel appearing for respondent and perused the records of trial court. By consent of learned advocates appearing for the parties appeal is taken up for final disposal.

2. Parties are referred to as per their rank in O.S. 2699/2004. Appellant herein was the plaintiff in O.S. 2699/2004 and he filed the suit for relief of declaration for cancellation of instrument i.e., gift deed dated 13.06.2003. Said suit was contested by respondent-defendant. When the matter was set down for evidence of plaintiff he filed an affidavit in lieu of examination-in-chief o