The Court is of the view that dismissal of the appellant’s case because of default of his counsel and non-accompaniment of an application for condonation of delay with the restoration application, an evident error of his counsel, should not render the appellant irreparably remediless. If the appeal is allowed, his suit would be determined on merits. Adjudication on the basis of the merits of a case should be the preferred process and it would subserve the interest of justice. The inconvenience , if any, caused to the respondents can be compensated by imposing costs on the appellant. The reasons mentioned in the application do make out a case for restoration of the suit. It is not as if the appellant has defaulted in appearance consistently. On the contrary, he has persued his suit diligently but for the evident inadvertent lapse by his counsel, leading to dismissal, of the suit in default. The application for restoration was filed within 19 days of knowledge, but otherwise after 39 days from the limitation period. In the circumstances, the appeal is allowed. The impugned order is set aside and the delay of about 29 days in filing the application for restoration of the suit is condoned. The suit is restored to its original number subject to cost of Rs.30,000/- to the respondent and Rs.5,000/- to the Delhi Mediation and Conciliation Centre, Dwarka District Courts, New Delhi within two weeks from today.
