Knox and Banerji, JJ.
1. Upon a second appeal being called on for hearing the vakil who appeared for the appellant told the Court that he was unable to argue the case; the appeal was accordingly dismissed. An application was then presented to the learned Judge who heard and decided the case praying that the appeal might be restored to its original number and heard in the ordinary course. The order passed was: 'This case cannot be reinstated: it was not dismissed for default.' It is contended before us to-day that under the circumstances the case is one which was practically dismissed for default and should have been so treated. In support of this contention the ease of Shankar Dat Dube v. Badha Krishna I.L.R. 20 All. 196, was cited.
2. The circumstances, however, of that case differ materially from the circumstances in the appeal before us. In that case the pleader who had been retained by the defendant came before the Court and stated that no one had ever come near him on the part of his client, and he had no instructions of any kind. His case was rightly treated as one in which the pleader engaged had retired from the case. In the appeal before us there was no retirement. The learned vakil who was engaged came forward with instructions in his hand and said he was unable to argue the case. From an affidavit which was filed along with the application for reinstatement the cause of inability is stated to be that the brief had come to the hands of the vakil so late that he could not prepare himself to argue the case. That, as pointed out in the case of Ram Chandra Pandurang Naik v. Madhav Purshottam Naik I.L.R. 16 Bom. 28, was a good reason to pray for an adjournment, but it was not a retirement from the case, and not a default of appearance. We were also referred to Rakhal Chandra Rai Chowdhuri v. The Secretary of State for India in Council I.L.R. 12 Cal. 603. That case no doubt supports the contention of the appellant, but we find ourselves unable to follow it. We prefer to follow the ruling of the Bombay Court, with which we are in accord. We dismiss this appeal with costs.