Rakesh Kumar Jain, J. - (1.) The appellant filed the suit for declaration and joint possession. Her suit was dismissed on 28.07.2003. She preferred first appeal through Shri P.L.Bansal, Advocate who pleaded no instructions on 24.11.2004 as a result thereof her appeal was dismissed for want of prosecution. The order dated 24.11.2004 read as under:- "Present: Sh. P.L.Bansal, Adv. for the appellant. Sh. R.S. Mehal, Adv. and Sh. L.K. Singla, Adv. for the respondent. **** The appeal was listed for arguments but it has not been argued by Ld. Counsel for the appellant who has made a statement pleading no instructions to proceed. In view of the statement made by Ld. Counsel for the appellant, the appeal is ordered to be dismissed, for want of prosecution. Lower Court file be sent back immediately and appeal file be consigned to the record room."
(2.) The appellant was not aware of the proceedings dated 24.11.2004 as neither her advocate Shri P.L. Bansal intimated her that he would not be appearing on her behalf on that date nor the lower Appellate Court had served any notice to her about the fact that her advocate had withdrawn himself from the appeal. She came to know about the order dated 24.11.2004 a day prior to the filing of the application under Order 41, Rule 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") for re-admission and hearing of the appeal on merits. It is averred in the application that advocate Shri P.L. Bansal, appearing on behalf of the appellant, had assured her that he would inform the appellant about the fate of the appeal and her presence was not required. She is an illiterate old lady of 72 years of age.
(3.) Reply to the application was filed by the respondents in which it was admitted that the appellant had engaged Shri P.L. Bansal, Advocate to conduct her case and that the appellant had never appeared on any date during the pendency of the appeal.;