JUDGMENT 1. 1. D.B. Civil First Appeal No. 47/80 was dismissed for want of prosecution by the following order dated July 28, 1982: "28-7-1982 Hon'ble G.M. Lodha, J. Hon'ble Kasliwal, J. No one appears for the appellant nor any application for substituted service has been filed. The appeal is, therefore, dismissed for want of prosecution. Sd/- N.M. Kasliwal, J. Sd/- G.M. Lodha, J. 2. The appellants have filed the restoration application under Order 41, Rule 19 read with Section 151 Civil Procedure Code on August 21, 1982. It has thus been prayed that the exparte order dated July 28, 1982 about the dismissal of the appeal may be set aside and the appeal be restored to its original number. Shri V.V. Harit Advocate filed his own affidavit in support of the application. 3. The respondents have opposed the application and both the parties have filed written arguments. 4. Mr. Lodha appearing on behalf of the respondents has submitted that the Division Bench has no jurisdiction to hear the present restoration application. It is contended that the present restoration arises out of regular Civil First Appeal. Under Rule 55 of the Rajasthan High Court Rules, regular first appeals require to be heard by Hon'ble Judge sitting singly. It has been further submitted that this application has been filed under Order 41, Rule 19, CPC. Under Order 19, Civil Procedure Code if the Court feels that there was sufficient reason then the Court can re-admit the appeal. It is contended that the re-admit of the appeal can be made by the Bench who is empowered to hear the First Appeal which in the instant case is Hon'ble Single Judge. It is contended that the hearing of the restoration application by the Division Bench would further prejudice the rights of the parties because the impugned order is appealable under Order 43, Rule (t) CPC, and Section 18 of the Rajasthan High Court Ordinance, and as such the restoration application should not be heard by Hon'ble Division Bench. Mr. Lodha in the alternative also contended that the appeal has not been dismissed for non-appearance of the appellants but for want of prosecution. Mr. Lodha in the alternative also contended that the appeal has not been dismissed for non-appearance of the appellants but for want of prosecution. No process fee and notices were filed as required under Rule 165 of the Rajasthan High Court Rules within time nor steps were taken for filing the application for substituted service and as such the Court had dismissed the appeal for want of prosecution under Rule 166 of the High Court Rules. Since the appeal has been dismissed under Rule 166 the provisions of Civil Procedure Code are not applicable and the present appeal cannot be restored under 41, Rule 19 CPC. It has also been submitted that in the application and the affidavit filed by the appellants, the only ground mentioned is regarding the non-appearance of the counsel in the Court on July 28, 1982 but no reasons have been assigned as to how and why steps were not taken earlier. Thus, in fact, no sufficient cause has been shown in the application or in the affidavit. The appellants were only interested in delaying the matter after obtaining stay order and no steps were taken for getting their brother and sister served intentionally. 5. On the other hand, learned Counsel for the appellants, has submitted that Rule 166 of the High Court Rules is not applicable to the present case as the Rule only relates to cases where the process fee is not filed by the appellants in the given time. In the present case, only application for substituted service was not filed and the appellants have shown sufficient cause for not filing the same. It has been further submitted that no reply or counter affidavit has been filed on behalf of non-applicants denying or controverting the facts contained in the application dated August 21, 1982 filed by the petitioner. It has been further submitted that it has been repeatedly laid down by their Lordships of the Supreme Court that contesting parties should not suffer for lapses on the part of their counsel. A party should not suffer for the in-action, deliberate omission or mis-demeanour of the agent, the lawyer. Reliance in this regard has been placed on Smt. Lachi Tewari and Ors. A party should not suffer for the in-action, deliberate omission or mis-demeanour of the agent, the lawyer. Reliance in this regard has been placed on Smt. Lachi Tewari and Ors. v. Director of Land Records and Ors., AIR 1984 SC 41 ; S.C. Sons (P) Ltd. v. Smt. Brahma Datt Sharma., and Ors, AIR 1986 Cal 437 ; Binod Baruah v. Ratul Chandra Goswami; AIR 1987 Gau. 7 ; and Prahlad Chandra Dey v. Assam Board of Revenue at Gauhati and Anr, AIR 1987 Gau. 9 . 6. We have heard learned Counsel for both the parties at length and have also considered the written arguments submitted by them and have also gone through the record. 7. It is evident from the record that on the basis of valuation of the appeal being Rs. 5,00,000/- it was a matter to be heard by Division Bench at the time when appeal was filed in 1930. The matter was going on for service of the respondents and on July 2, 1982, Shri V.V. Harit, learned Counsel for the appellants was present in the office and had taken two weeks time to file an application for substituted service. Thereafter, the matter was placed before the Deputy Registrar and as no application had been filed by the learned Counsel for the appellants the matter was listed in the Court on July 28, 1982. The matter was heard by the Division Bench and nobody had appeared for the appellants nor any application for substituted service had been filed and as such the appeal was dismissed for want of prosecution. After July 28, 1982, an amendment was made under Rule 55 of the Rajasthan High Court Rules and all regular civil first appeals irrespective of any valuation were to be heard by Single Judge of this Court. The objection now raised by Mr. Lodha, learned Counsel for the respondents, is that as the main appeal is to be heard and disposed of by a learned Single Judge, the restoration application should also be heard by a Single Judge. In our view, there is no force in the above objection raised by Mr. Lodha. The objection now raised by Mr. Lodha, learned Counsel for the respondents, is that as the main appeal is to be heard and disposed of by a learned Single Judge, the restoration application should also be heard by a Single Judge. In our view, there is no force in the above objection raised by Mr. Lodha. There can be no manner of doubt that so far as the main appeal is concerned, it has to be heard and disposed of by a Single Bench but there is no such provision under any of the Rules of this Court that the restoration application in respect of an order of dismissal passed by a Division Bench should also be listed before a Single Judge. Rule 55 makes a mention of the cases which shall ordinarily be admitted, heard and disposed of by a Judge sitting alone. A perusal of all the clauses mentioned in Rule 55 clearly shows that it does not make any mention of restoration application filed under Order 41, Rule 19, Civil Procedure Code or any application filed under Section 151 Civil Procedure Code or under Rule 166 of the High Court Rules. Thus, in the absence of any clear provision under Rule 55 or any other Rule of the High Court Rules laying down that the present application filed before us should be disposed of by a Judge sitting alone, it cannot be said that the Division Bench has no jurisdiction to entertain such application. Apart from that as the order dismissing the appeal for non-prosecution dated July 28, 1982, was also passed by a Division Bench, in our opinion, it is only the Division Bench, who is competent to entertain an application for restoration of appeal or setting aside the order of dismissal for non-prosecution and not. a Judge sitting alone. 8. Now so far as the merits of the application are concerned, suffice it to say that neither any reply nor any counter affidavit has been filed by the respondents to controvert the allegations made in the application filed by the appellants supported by an affidavit of Shri V.V. Harit Advocate himself. The case had been listed in the court for the first time on July 28, 1982 and Mr. The case had been listed in the court for the first time on July 28, 1982 and Mr. V.V. Harit has given an affidavit that there were heavy rains in Jaipur City on July 27, 1982 and there was flood in his locality and he had not received any cause list of the High Court dated July 28, 1982. This, in our opinion, is sufficient cause for the non-appearance of the counsel in the Court on July 28, 1982 and the default has been committed in good faith. 9. In the result, this restoration application is allowed, the order dated July 18, 1982, dismissing the appeal for non-prosecution is set aside and the Civil First Appeal is restored to its original number.Application allowed. *******