1. This appeal was fixed for hearing on 24th April 1928, and one week’s previous notice was given to the counsel concerned. It was placed first on the day’s list. Two advocates’ names appeared on the paper-book, and in the list. If it was contemplated that a brief-holder would argue the case, one would expect that the case, being a heavy one, would be handed over to him in advance so as to enable him to prepare it thoroughly and do justice to the case. In that event he would have been ready to appear at 10-30 am., and argue the appeal.
2. When the case was called on Mr. P. L, Banerji sent a slip stating that he was engaged in another Court. Mr. Sheo Prasad Sinha was called and he stated that he had no instructions in the case as he had not been paid his full fee.” No one appeared as a brief-holder. If a counsel holds a brief for another counsel, it is obviously his duty to inform the reader that he does so, otherwise the reader cannot know that he will argue the case. No intimation was given to the reader that any one was holding the brief of Mr. P.L. Banerji. We, however, passed over the case and disposed of other cases which were further down in the list. The time came for revising the list. A fresh intimation was sent to all the counsel concerned and Mr. P.L. Banerji was duly informed. The case was called on at 12-40. Several slips of reminder were sent by the reader to Mr. Banerji and no reply was received. Neither he himself came to make any request, nor did he send any counsel on his behalf to do so. The counsel for the respondent was present in Court and ready to argue the case. In the absence of the counsel we thought it best to begin with the judgment, and we went through the whole of it. Altogether we spent 23 minutes in waiting for some one to appear for the appellant. No one appeared. We accordingly felt compelled to dismiss the appeal for default of appearance.
3. After the appeal had been dismissed, Mr. Sen came in to make some motion, but we said if he wanted to have the case restored he should apply in the regular way. That of course did not imply any promise that we would restore the case.
4. Mr. Sinha, who appeared along with Mr. Banerji has, according to his statement, not been paid his full fee. It is, therefore, very doubtful whether the applicant has any right at all to have the case restored in view of the provisions of Ch. 5, Rule 5, High Court Rules. Leaving aside that technical objection, we are of opinion that it is not a fit case in which the order of dismissal should be set aside. There is a proviso to Rule 8 of Ch. 6, that no party shall be entitled to have a case put out of its place in the day’s list more than once on account of the absence of his advocate, attorney or vakil. The case was passed over once and the appellant had no right to have it passed over a second time. If a litigant chooses to engage only one counsel in a first appeal, who has plenty of other work to look after, and does not choose to pay his colleague, whom also he had engaged at first, he takes the risk. If the case can no longer be passed over and his sole counsel is not in a position to come, the litigant has himself to thank for if the appeal is dismissed for default. Similarly if a brief holder is engaged to appear in a case, he ought to take care to see that the case does not go out for default, and he ought to give intimation to the reader so that he may be called.
5. The period of 23 minutes was in our opinion more than sufficient for making a search for Mr. Sen in the High Court, when it is admitted that he had not gone out. In the face of the several reminders there is no sufficient excuse why no one appeared.
6. In view of these circumstances we are not prepared to restore the case. The application is dismissed.