Judicial discretion to condone delays must favor adjudication on merits, particularly where substantive efforts have been made by the litigant.

JUDGMENT :

OSWAL, J.

1. This appeal under section 13(2) of the Commercial Courts Act , 2015, by the appellants is directed against an order dated 22.05.2023 passed by the Court of learned Additional District Judge (Commercial Court), Jammu (hereinafter to be referred as the 'Trial Court').

2. By virtue of impugned order, the Trial Court has dismissed the appellant's application for condonation of delay attending an application seeking restoration of a civil suit titled 'M/s Ram Kour Behari Lal and Company vs. M/s Hakam Chand and Company and others', which stood dismissed for non-prosecution on 28.05.2011. Consequently, the accompanying application for restoration of the suit was also dismissed leaving the appellant non-suited without adjudication of civil suit on merits which otherwise was posted for final arguments and judgment.

3. The appellant challenges the impugned order on the grounds that the suit, which was diligently pursued for sixteen years, was at the stage of final arguments when it was dismissed for non-prosecution on 28.05.2011. It is contended that the Trial Court acted in a casual and mechanical manner, failing to appreciate that the default arose from shuffling changes in the engaged counsel's chamber, specifically following the departure of Mr. Raman Sharma, Advocate, from the chambers of Mr. A.V. Gupta, Senior Advocate. The appellant submits that since the trial of the suit was handled by Advocate Raman Sharma leading to stage of final arguments being underway, the Trial Court ought to have exercised its discretion under Explanation to Order 17 Rule 2 of the J&K Code of Civil Procedure 1920 (in short 'CPC') so as to dispose of the suit on merits rather than dismissing it in default.

4. Mr. Jagpaul Singh, learned counsel for the appellant vehemently argues that in the application for condonation of delay, it stood stated that the delay in filing the restoration application was occasioned by shifting of Mr. Raman Sharma, Advocate, who was all along handling the matter as de facto counsel of the appellant and who had transitioned from his Senior's Chamber of senior Advocate Mr.A.V.Gupta, to establish his independent practice coinciding when the suit was listed for final arguments. Consequently, this shift resulted in the appellant's suit suffering lack of due attention and handling at the end of junior association of senior Advocate Mr.A.V.Gupta & Association who otherwise was the appellant's counsel. that led to suit's dismissal for non-prosecution. He has further argued that the learned Trial Court was not correct in holding that the applications have been filed by a counsel along with his affidavit, who is not even remotely connected with the appellant's suit because even though the Power of Attorney(Vakalatnama) of said counsel filing the applications on behalf of the appellant was not on record, but after he filed the application for condonation of delay for restoration of the suit, said counsel had filed an application for serving the defendants/non-applicants through Publication mode which application was duly signed by the appellant. It is further submitted that the Trial Court, instead of being hyper technical, ought to have adopted a liberal and pragmatic approach in considering the application for condonation of delay, as it is a settled principle of law that a lis, that too original one, should ideally be adjudicated on its merits rather than dismissed on