M.R. Hariharan Nair, J.

The plaintiff in O.S. No. 534/96 of the Second Additional Sub Court, Emakulam, is aggrieved by the order passed in LA. No. 2886/98 filed by the defendant whereby the said application was allowed and the judgment and decree passed in the suit on 17.7.1998 was set aside invoking powers under O. IX R.13 of the Code of Civil Procedure.

2. The learned counsel for the petitioner placing reliance on the decision in Prakash Chander v. Janaki Manchanda (AIR 1987 SC 42) pointed out that O. IX R.13 will have no application in the case where the defendant was physically present at the time when the case was taken up for disposal and that the provision will have application only where the case is decided or taken up for decision in the absence of the defendant. The learned counsel also points out with reference to the facts of this case that on 16.7.1998 both parties were present ready to proceed with the trial of the suit as scheduled as announced in the special list and that protesting against the disallowance of certain questions put to the plaintiff by the defence counsel during cross-examination, he adopted an attitude of non-co-operation with regard to th