- (1.) THIS is an application by Messrs. Chandra Stores, Ajmer, appellant in D. B. Civil first Appeal No. 46 of 1956, under Order 41 Rule 19 of the Code of Civil procedure, praying for the setting aside of our order of the dismissal dated the 20th September, 1963, and for its readmission to hearing on the merits.
(2.) THE material facts are these. The appeal was last fixed for hearing in this Court on the 20th September, 1963. This appeal was originally filed in the court of the judicial Commissioner, Ajmer, and was transferred to the Jaipur Bench of this court in November, 1956, on the merger of the erstwhile State of Ajmer into the state of Rajasthan under the States Reorganisation Act, 1956. Shri Mukat Behari lal Bhargava put in his Vakalatnama on behalf of the appel-Iant in the court of the judicial Commissioner, Ajmer, which bears no date, and presumably it was filed along with the memorandum of appeal 'in that court on the 26th February, 1955. On the 31st December, 1956, after the case was transferred to the Bench of this court at Jaipur, the appellant also engaged Sri J. P. Jain an advocate then practising at Jaipur. The appeal was complete for hearing on the 4th November, 1957, and it was entered to be listed for hearing for the 21st February, 1958. It was then adjourned to the 8th May, 1958 and the 2nd August, 1958. On the last mentioned date, Sri J. P. Jain appeared for the appellant. Meanwhile the Jaipur Bench was abolished and the case was transfer to the seat of the High Court at Jodhpur, and on the 12th August, 1958, the case was fixed for hearing on the 7th October, 1958, and a direc-tion was given that the parties be informed accordingly. In pursuance of this, it appears that a notice under postal certificate was sent to Sri J. P. Jain on the 19th September, 1958. The appellant vishnu Chandra, a partner of the appellant firm made an application for adjournment of the case, and thereafter the case came up for hearing in court on the 13th November, 1962, and the 12th February, 1963, but nothing substantial was done, and eventually the appeal was notified for hearing on the 19th september, 1963. It was not reached on that date, and, therefore, it came up before us on the following day, that is, the 20th September, 1963. On that date, sri M. B. I. Bhargava was not present. The other counsel for the appellant Shri J. P. Jain stated that he was unable to argue the case because he was not in possession of the papers and therefore prayed for an adjournment. No reason was assigned before us as to the absence of Shri M. B. L. Bhargava. In these circumstances, by an order dated the 20th September, 1963, of which the following is the operative part, we dismissed the appeal for want of prosecution: "this is an old appeal and it should have been the duty of learned counsel incharge of the case to appear and argue it, and, if not, to make alternative arrangements, the more so as there was a second counsel in the case. We are not prepared to adjourn 1956 appeals for the mere asking. There is no one before us to argue the case. This appeal is, therefore, dismissed for want of prosecution, There will be no order as to costs in this Court. " It is this order which is sought to be set aside.
(3.) IN his application for restoration, it is stated by the petitioner Vishnu Chandra that Shri M. B. L. Bhar-gava was in complete charge of the appeal from the time it was filed on the 26th February, 1955, upto the 20th) September, 1963, the data on which it was dismissed, and that on appeal being transferred to the Bench of this Court at Jaipur, Shri J. P. Jain who was then normally practising at Jaipur had also been engaged by him "to look after the routine work in the High Court to connection with the said appeal, but all along it was understood that the appeal will be argued by Shri M. B. L. Bhargava alone," and that on the abolition of the Jaipur Bench and on transfer of the appeal to the high Court at Jodhour, Shri Bhargava continued to be in exclusive charge of the appeal as he had established a regular office at Jodhpur. It is further stated that m the middle of September, that is, about the 14th, Shri Bhargava had gone to Delhi for attending the Parliament of which he was a member and that on the 18th september, 1963, while he was there, he had a suddtfn attack of dysentery and yet he left Delhi on the night of the 18th September and reached Ajmer on the morning of the 19th September, 1963, with the intention of attending his cases at jodhpur on the 19th and 20th September, 1963. On the 19th September, 1963, he was informed by his clerk Bhanwarlal that the appeal was listed in the daily cause-list for the 20th September and, therefore, he should reach Jodhpur on the morning of the 20th September before the court hours. Shri Bhargava then decided that he would leave for Jodhpur by his own car on the 20th September, 1963, at 5 or 6 A. M. so as to reach Jodhpur in time; but it is alleged that his dysentery trouble became very acute and he was not at all in a fit condition to undertake a long journey in that state of his health. On the morning of the 20th, he tried to contact his clerk but that was not possible before 12-30 P. M. when he was informed on the phone that the ap- peal had been dismissed for want of prosecution. It is the petitioner's further case that Shri bhargava had assured him that the former need not appear personally on the various dates of hearing, and, therefore, he did not think it necessary to put in appearance in court on the 20th September, 1963. As for Shri Jain, the petitioner's case is that he had been only engaged for looking after the routine work con- nected with the appeal in question and that at no time he had been given any papers or instructions, and, therefore, it was not possible for him to argue the appeal. And so far as Shri Bhargava is concerned, it is submitted that he was the only counsel in charge of the case, and, therefore, as he had unexpectedly fallen ill, there (was sufficient cause far his unforeseen absence and consequently the order of dismissal which amounts to an order of dismissal for default of appearance, be set aside under Order 41 Rule 19 C. P. C. It is further submitted that if the Court comes to the conclusion that the present application does not fall within the purview of Order 41 Rule 19 C. P. C. , then the court be pleased to review its order in the exercise of its inherent powers under the provisions of Order 47 and Section 151 C. P. C. In support of this application, the petitioner Vishnu Chandra has filed his own affidavit and he has filed another affidavit by his counsel Shri M. B. L. Bhargava. These affidavits substantially support the averments made in the application for restoration which we have already set out above. No application or counter affidavit has been filed on the other side.;