Courts Must Be 'Adjudication-Friendly' In Restoration Pleas Especially When Trial Is Complete: J&K High Court Condones 560-Day Delay
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Rajnesh Oswal and Justice Rahul Bharti, has set aside a trial court order that had dismissed an application seeking condonation of delay and restoration of a civil suit, directing that the suit be restored to its original number and remanded for adjudication on merits. The Court held that when a suit pending at the stage of final arguments is dismissed for non-prosecution, courts must take a liberal, adjudication-friendly view of restoration and delay condonation applications, unless the cause shown is a transparent attempt to mislead the court. The dispute concerned a recovery suit that had been actively pursued for sixteen years before being dismissed in default owing to a counsel's chamber transition, with the Court finding that denying a merits-based decision under such circumstances would be unjust and iniquitous.
The appeal arose from an order dated 22.05.2023 passed by the Court of learned Additional District Judge (Commercial Court), Jammu, dismissing an application for condonation of delay filed along with an application seeking restoration of a civil suit that had been dismissed for non-prosecution on 28.05.2011.
The appellant had instituted a suit for recovery of Rs. 5.58 lakh, which, after transfer, proceeded before the Trial Court. Evidence of the appellant was closed, followed by the respondents’ evidence, which concluded on 30.03.2010. The matter was thereafter posted for final arguments. On successive dates in May 2011, none appeared for the appellant, and the suit was dismissed for non-prosecution.
A restoration application accompanied by an application for condonation of 560 days’ delay was filed, attributing the delay to the transition of the engaged advocate from his senior’s chamber to independent practice, causing oversight in file management, and also citing the proprietor’s ill health. The respondents opposed the plea, contending absence of sufficient cause and lack of proper authorization to the counsel who filed the applications.
The appellant invoked the Explanation to Order 17 Rule 2 of the J&K Code of Civil Procedure, 1920, and relied upon judicial precedents including Mool Chandra v. Union of India and Jang Singh v. Brij Lal.
The Court recorded that a suit pending at the stage of final arguments demands a qualitatively different judicial response when dismissed for non-prosecution. It observed that "when a suit in particular pending for final arguments is dismissed for non-prosecution, an adjudication friendly approach is required while considering an application be it for condoning the delay in filing the application for restoration or for restoration of such suit unless and until the purported cause put up for seeking condonation of delay and consequent restoration is nothing but to honeyfuggle the court."
On the question of whether the delay could be condoned, the Court stated that "the cause projected by the appellant for condoning the delay can neither be termed imaginary nor fanciful warranting its rejection." It further recorded that "denying the appellant of his right to get the suit adjudicated on merits, particularly when he was vigorously pursuing the same for 16 long years, just because of delay, would be unjust and iniquitous."
The Court observed that "every endeavour should be made by the courts to decide on merits the lis which has matured for adjudication."
On the discretion available to the trial court under the applicable procedural provision, the Court stated that "when entire or substantial portion of evidence in suit has been recorded, the Trial Court possesses the discretion to proceed for final adjudication as if the parties to suit were present." It further observed that "ordinarily, a suit poised and positioned at the stage of final arguments should be adjudicated on its merits rather than being dismissed for non-prosecution."
Addressing the procedural irregularity regarding the absence of a formal power of attorney, the Court recorded that "the non-filing of a Vakalatnama/Power of Attorney can be held to be a technical irregularity and not a fatal flaw to the competency of an application" and that "the appellant's personal involvement and subsequent filings sufficiently validate the authority of his counsel."
On the shared responsibility arising from the trial court registry's oversight, the Court invoked the principle of actus curiae neminem gravabit and observed that "the procedural irregularity should not be a ground for dismissing the appellant's plea." It also stated that "the issuance of notice by the Trial Court, despite the incomplete filing, constitutes a shared error."
Applying the standard laid down by the Supreme Court, the Court recorded that where "no fault can be laid at the doors of the appellant and cause shown is sufficient", a liberal and justice-oriented approach to condone the delay ought to be adopted.
The Court directed that “the instant appeal is allowed. Order dated 22.05.2023 passed by the learned Trial Court is set aside. Application for condonation of delay is allowed. Delay in filing the application for restoration of the suit is condoned.”
“Resultantly, the restoration application filed on identical grounds is also allowed. The suit is restored to its original number. The matter is remanded to the learned Trial Court for its adjudication on merits in accordance with law. Parties through their respective counsel shall appear before the learned Trial Court on 02.03.2026.”
Advocates Representing the Parties:
For the Petitioners: Mr. Jagpaul Singh, Advocate
For the Respondents: Mr. Rohan Nanda, Advocate for Respondent No. 3
Case Title: M/s Ram Kour Behari Lal and Co. v/s M/s Hakam Chand and Co. and others
Case Number: RFA No. 29/2023
Bench: Justice Rajnesh Oswal and Justice Rahul Bharti
