NANOO GOPINATHAN Vs. NEELACANTAN BALAKRISHNAN

JUDGEMENT

(1.) Defendant is the appellant. Plaintiff's (respondent's) suit for recovery of money on the strength of two chitty transactions was partly allowed by the Munsiff and the plaintiff was granted a decree for a sum of Rs.420/- with interest thereon. Plaintiff filed A.S.100 of 1980 before the Sub Court, Kottarakkara, Cross objection was filed by the defendant. When the appeal and cross objection were taken for hearing counsel appearing for the plaintiff reported no instructions and consequently the appeal was dismissed. Defendant's counsel argued the cross objection and the learned Sub Judge dismissed it.

(2.) Contention of the defendant is that the Sub Judge was not justified in hearing the cross objection when the appeal was dismissed for default. Learned counsel submitted that when the appeal was subsequently restored the Sub Judge ought to have reheard the cross objection also along with the appeal and as that has not been done the defendant is seriously prejudiced. It is argued by him that when the appeal filed by the plaintiff which was dismissed for default was restored to file and heard again the cross objection also ought to have been heard again along with the appeal. There is no merit in the above contention as there is no provision in the Civil Procedure Code to adopt such a procedure.

(3.) Order XLI R.22(4) specifically provides that where in any case in which any respondent has filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. When an appeal is dismissed for default or withdrawn the fate of the cross objection is not sealed thereby. Even when an appeal is withdrawn or dismissed for default the Court has to hear the cross objection and dispose of it in accordance with law. In other words, cross objection will have to be heard despite the dismissal of the appeal for default. Once an appeal is withdrawn or dismissed for default and the cross objection has been heard and decided on merit restoration of the appeal and rehearing of the appeal would not automatically warrant a rehearing of the cross objection.