MODI, J.—This is an application by Messrs. Chandra Stores, Ajmer, appellant in D. B. Civil First Appeal No. 46 of 1956, under O. 41, r. 19 of the Code of Civil Procedure, praying for the setting aside of our order of 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 State Reorganisation Act, 1956. Shri Mukat Beharilal Bhargava put in his Vakalatnama on behalf of the appellant 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 ordered 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 transferred 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 direction 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. L. 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. Bhargava was in complete charge of the appeal from the time it was filed on the 26th February, 1955, upto the 20th September, 1963, the date on which it was dismissed, and that on the 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 in 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 Jodhpur, Shri Bhargava continued to be in exclusiv

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