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#Evidence

Kanooni Charcha by Retd Judge on recent Judgement of Hon’ble High Court of J& K & Ladakh delivered in Case Title: M/s Ram Kour Behari Lal and Co Vs M/s Hakam Chand and Co. and others by a Division Bench of Justice Rajnesh Oswal and Justice Rahul Bharti by “Holding that courts must adopt an adjudication-friendly approach when a suit pending at the stage of final arguments is dismissed for non-prosecution, the Jammu and Kashmir and Ladakh High Court has ruled that applications seeking condonation of delay and restoration should ordinarily be viewed liberally unless the cause shown is a mere attempt to “honeyfuggle the court.” Emphasising that justice should not be defeated by technical lapses, the Court underscored that once a lis has matured for final adjudication, denial of a merits-based decision would be unjust and iniquitous. It remarked, “… Every endeavour should be made by the courts to decide on merits the lis which has matured for adjudication… 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 case stemmed from a civil suit filed by M/s Ram Kour Behari Lal and Co. seeking recovery of ₹5.58 lakh from M/s Hakam Chand and Co. and others. Initially instituted before the High Court in 1996, the suit was later transferred to the court of the Additional District Judge, Jammu. Over the years, the suit progressed steadily: the plaintiff's evidence was concluded, followed by the closure of the defendants' evidence in March 2010. Thereafter, the matter was listed for final arguments. However, on account of repeated non-appearance on behalf of the plaintiff, the trial court dismissed the suit for non-prosecution. A restoration application, accompanied by an application seeking condonation of delay of about 560 days, was later filed but came to be rejected by the Commercial Court. Aggrieved by this rejection, the plaintiff approached the High Court in appeal under Section 13(2) of the Commercial Courts Act, 2015. It was further argued that under Explanation to Order 17 Rule 2 of the CPC, the trial court ought to have decided the suit on merits since evidence on both sides had already been concluded. The appellant also assailed the rejection of the restoration application on the ground that it was filed without a vakalatnama, submitting that subsequent pleadings were signed and affirmed personally by the appellant, thereby curing any procedural defect. After carefully examining the record, the High Court noted that the suit had reached the stage of final arguments after completion of evidence on both sides and had remained pending for over a decade and a half. The Bench observed that when a suit has matured for adjudication, courts should make every endeavour to decide it on merits rather than terminating it on technical defaults. Highlighting the long pendency of the suit and the diligence shown by the appellant over sixteen years, the Bench observed that the cause shown for delay was neither imaginary nor fanciful. It cautioned that denying a litigant the right to have his suit adjudicated on merits, particularly at such an advanced stage, would amount to grave injustice. Allowing the appeal, the High Court set aside the order passed by the trial court, condoned the delay in filing the restoration application, and restored the suit to its original number. The matter has been remanded to the trial court for adjudication on merits in accordance with law.