JUDGMENT Honble Shiv Charan, J.—Instant application has been moved under Order 41 Rule 19, C.P.C. for restoration of Second Appeal No. 1238 of 2002 which was dismissed on 29th February, 2008 with the observation that no substantial question of law was involved and the second appeal was admitted. Hence the order of admission was recalled and set aside. 3. It has been alleged in the affidavit annexed with the restoration application that on the date when the impugned order regarding allowing recall application and setting aside the earlier order was passed, a substitution application was pending. During the pendency of the appeal, respondent No. 1 had died and in order to bring his heirs on record, an application for substitution was moved. In these circumstances, earlier to passing any order on recall of earlier order, it was incumbent on the Court to dispose of the substitution application of respondent No. 1 but without bringing the heirs of respondent No. 1 on record, the appeal was dismissed by the impugned order on the ground that no substantial question of law is involved and this is against the spirit of law. It has further been alleged that in view of Order 41 Rule 17 of the C.P.C. in case the appellant is absent then no order may be passed on merits rather the appeal must be dismissed in default. Whereas by the impugned order the appeal was decided on merits instead of dismissing the appeal in default as is provided under Order 41 Rule 17 of the C.P.C. Further urged that a finding has been recorded by this Court on 22nd February, 2008 that counsel for the appellant was not present and this finding/observation is not correct. On 20th February, 2008, the counsel for the appellant was very well present in Court and requested for two weeks’ time for filing objection against the application for recall as well as counter affidavit and rejoinder affidavit. And on that date, Sri Manu Saxena, Advocate appeared in Court and requested the Court that the case may be taken up in the revised list as Sri Ajeet Kumar, Advocate is on legs in Court No. 39 and as afterwards list could not be revised. Hence another mention was made on behalf of Sri Ajeet Kumar at the time of rising of the Court that matter may be ordered to be put up as unlisted. Hence another mention was made on behalf of Sri Ajeet Kumar at the time of rising of the Court that matter may be ordered to be put up as unlisted. But the Court ordered that the case may be listed on 29th February, 2008. Certain other points has also been raised regarding perversity of the judgment of first appellate court. There appears no necessity to mention the merits of the case as has been stated in the affidavit because application has been filed for restoration of the appeal and not for review of the order. 3. On behalf of opposite party/respondent objection has been filed against the application for restoration. And in objection merit of the case has also been discussed as has been alleged by the applicant also. But regarding para 19 which deals with matter of the ground for restoration detailed reply has been submitted. It has been alleged that the heirs of Sri Budh Prakash had already appeared and hence the reference of substitution application was meaningless. That mention of Order 41 Rule 17, C.P.C. is also misconceived. The application moved on behalf of respondents was to be disposed of on merits and the Court after applying its mind disposed of the application for recall of the order. It has also been alleged that on that date no application for the appellant was pending and the appeal was also not listed for final hearing so as to pass the order dismissing the appeal in the default but the application of the respondent was pending for hearing and disposal and accordingly the application of the respondent was to be disposed of on merits and this application could not have been dismissed in default as the applicant was very well present at the time of hearing. Certain other ground made in the application has also been disputed which has been made by the applicant regarding merits of the case as well as merit of the judgment of the first appellate Court. And that the prayer made in the application is liable to be dismissed. 4. I have heard Sri H.M.B. Sinha, Advocate for the appellant and Sri Manu Saxena, Advocate holding brief of Sri Ajeet Kumar, for the respondents at length and perused all the facts and circumstances of the case. 5. And that the prayer made in the application is liable to be dismissed. 4. I have heard Sri H.M.B. Sinha, Advocate for the appellant and Sri Manu Saxena, Advocate holding brief of Sri Ajeet Kumar, for the respondents at length and perused all the facts and circumstances of the case. 5. At the very out set, learned counsel for the applicant argued that on the date when the appeal was dismissed for want of substantial question of law after recalling of the order dated 30th January, 2004, one substitution application was pending. That respondent No. 1 had died during the pendency of the appeal and in order to bring his heirs on record application was moved for substitution. This fact has not been disputed by the learned counsel for the respondents. But learned counsel for the respondents argued that heirs of Sri Budh Prakash deceased respondent No. 1 appeared in the appeal and filed the application for recall of the order dated 30th January, 2004. That application was moved by the heirs and inspite of the fact that the substitution application was pending, the second appeal was dismissed on the ground that no substantial question of law is involved and at the time of admission on 13th April, 2004 appeal was wrongly admitted on certain substantial question of law. Under these circumstances as the application has been moved by the heirs of respondent No. 1 deceased, then this fact is meaningless that on the date when the second appeal was dismissed substitution application for substituting the heirs of respondent No. 1 was pending. I am of the opinion that this fact might have been most material in the circumstances if adverse order might have been passed against the interest of the heirs but no order was passed against the interest of the heirs of respondent No. 1 rather the application moved by the heirs of deceased respondent No. 1 was allowed. Hence I do not think that this restoration application is maintainable on the ground that substitution application of the heirs of respondent No. 1 was pending on the date when the order dated 29.2.2008 was passed. Hence I do not think that this restoration application is maintainable on the ground that substitution application of the heirs of respondent No. 1 was pending on the date when the order dated 29.2.2008 was passed. Much has been argued by the learned counsel for the applicant in the light of the provisions of Order 41 Rule 17, C.P.C. it has been provided by Order 41 Rule 17 C.P.C. “Dismissal of appeal for appellant’s default.—(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.” 6. In view of above provisions of law in case on any specific date appellant is absent and the respondent is present on the date of hearing then the appeal may not be decided on merits rather the order shall be passed regarding dismissal of the appeal in default. In the present case sub-rule (2) of Rule 17 Order 41 is also material. It has been provided in this sub-rule that where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. I have perused the order sheet of the appeal and from a perusal of the same it is evident that on 13th February, 2008 an application was moved on behalf of respondent for recalling of the order dated 30th January, 2004 passed regarding the admitting of appeal and granting stay order and it was alleged on behalf of the respondents that the second appeal was admitted for hearing on the substantial question of law as framed at point C & D of the memo of appeal. But in view of law, these are not the substantial question of law. Four days time was allowed to the appellant to file objection against this application for recall of the order and the appeal was ordered to be listed on 20th February, 2008 for hearing. Under these circumstances, it means that on 13th February, 2008 arguments were to be heard on the application moved on behalf of respondents for recall of the order and not the hearing of the appeal on merits. Under these circumstances, it means that on 13th February, 2008 arguments were to be heard on the application moved on behalf of respondents for recall of the order and not the hearing of the appeal on merits. In view of the judgment of the Apex Court if an appeal has been admitted on certain substantial question of law, thereafter respondent appeared and moved an application for recall of the order on the ground that the questions on which the appeal had already been admitted are not actually the substantial question of law. Then the Court is perfectly justified in recalling the order if arrived at the conclusion that no substantial question of law is involved on which the appeal has been admitted. Hence the application of the respondent for recalling the order of admission was perfectly maintainable and under these circumstances, the arguments were to be heard on application moved on behalf of respondent instead of hearing the learned counsel for the parties on merits of the appeal. The application for recall is to be disposed of and due to this reason, on 20.2.2008 an order was passed that the case be put up on 27th February, 2008 as peremptorily and on 27th February, 2008 order was passed to the following effect : “At the time of calling in first round learned counsel for the respondents is present. But none is present for the appellant. Respondents’ counsel stated that at the time of calling in second round after lunch he will be busy in Court No. 39 in a part heard matter. And he will not be available after lunch and he also stated that the matter is urgent and that is why the case was listed peremptorily also in the first round of calling appellant’s counsel failed to appear in Court. But in view of tradition no adverse order can be passed in first round. But the learned counsel for the respondents requested that it may be taken up as unlisted tomorrow or day after tomorrow. Hence put up on 29th February, 2008 for orders as unlisted and learned counsel for respondents shall inform the learned counsel for the appellant in writing about this order.” 7. But the learned counsel for the respondents requested that it may be taken up as unlisted tomorrow or day after tomorrow. Hence put up on 29th February, 2008 for orders as unlisted and learned counsel for respondents shall inform the learned counsel for the appellant in writing about this order.” 7. As the argument could not be commenced on 27th February, 2008 on the application for recall, hence order was passed for putting up on 29th February, 2008 as unlisted and it was also provided that the learned counsel for the respondents shall inform the learned counsel for the appellant in writing about this order. Thereafter as none was present for the appellant on 29th February, 2008, hence the impugned order has been passed. It is also significant to mention that on 29th February, 2008 Sri H.M.B. Sinha, Advocate for the appellant informed the Court in writing that he has no instruction now in the case and considering the provisions of law as provided in Order 3 Rule 4, C.P.C. the Court proceeded for hearing on the recall application. Under these circumstances, it cannot be presumed that there was no intimation or information to the counsel for the appellant of dated 29th February, 2008 rather the Advocate was fully aware that the appeal has been listed for hearing on recall application on that date. 8. As has been stated above, that in view of Order 41 Rule 17, C.P.C. Sub-rule (2) if the appellant appears and the respondent does not appear then the appeal shall be heard ex parte. In the present case, the case was fixed on 29th February, 2008 for hearing of the application for recall, hence for the purpose of sub-rule (2) of Order 41 Rule 17 of the C.P.C. it may be presumed that appellant means the applicant who moved the application for recall of the order and under these circumstances, the Court was also justified in hearing the arguments of learned counsel for the applicant. And in this connection, learned counsel for the applicant cited judgment of the Hon’ble Apex Court reported in 2002(2) AWC 1239, Ajeet Kumar Singh and others v. Chiranjibi Lal and others and considering the peculiar facts and circumstances of the case, in my opinion no benefit can be given to the applicant on the basis of the judgment of the Hon’ble Apex Court. The appeal could not have been dismissed because date was not fixed for hearing of the appeal and if the application for recall is to be dismissed then the applicant was present to argue on the application. Under these circumstances in the absence of the appellant’s counsel, there was no justification for dismissing the application for recall moved on behalf of the respondent. Learned counsel has also cited another judgment of this Court reported in 2005 (1) AWC 324 , Shaukat Husain v. Smt. Saroj Bala and another. I have also perused the facts of this case and considering the facts as stated above, in my opinion on the basis of this judgment, no benefit can be given to the applicant. 9. In case already represented Advocate withdraw his power then what must be the position of law is also material and in this connection learned counsel for the opposite party cited judgment of the Division Bench of the High Court of Gujarat reported in AIR 1976 Guj 98 , Govardhanbhai Somabhai v. Parshottam Umedbhai and another and also judgment of this Court reported in 1982 UPLBEC 708, Subhang Saurab Chaturvedi v. State of U.P. and others. It has been held in the above judgments of the High Court of Gujarat and this Court that the Advocate reporting no instruction does not absolve him from the responsibility. And in the circumstances of the case the order of discharge of the Court is also necessary and in absence of such an order the Advocate will be deemed to be representing to his client and considering the above position of the law regarding reporting no instruction the counsel for a party merely informing the Court will not discharge him from the responsibility and irrespective of this fact the counsel shall be deemed to represent his client and in the present case on 29th February, 2008, learned counsel for the applicant informed the Court regarding no instruction but no order was passed by this Court to discharge him from the responsibility of representing the client. Hence in view of the position of law, as stated above, the Advocate shall be deemed to be representing the appellant. Under these circumstances, it shall be presumed that the appellant will be represented on that date through the Advocate. Because there is no plea on behalf of applicant that there was no intimation even to the Advocate. Hence in view of the position of law, as stated above, the Advocate shall be deemed to be representing the appellant. Under these circumstances, it shall be presumed that the appellant will be represented on that date through the Advocate. Because there is no plea on behalf of applicant that there was no intimation even to the Advocate. A perusal of the order shows that on 29th February, 2008 intimation was given by the Advocate regarding no instruction. Learned counsel for the opposite party also stated other provisions of Section 99 and Order 8 Rule 6, C.P.C. are also material but I do not think it necessary to mention this fact. 10. Considering all facts and circumstances of the case, as have been stated above, I am of the opinion that no sufficient ground has been disclosed for restoration of the second appeal and the order dated 29th February, 2008 is perfectly justified. I will not like to consider the merits of the case as it is not within the purview of the restoration application and the application for restoration is without any merit and the same is liable to be dismissed with cost. 11. Application for restoration is accordingly dismissed with cost. ———