[2026:RJ-JP:35033-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Miscellaneous Appeal No. 3448/2026 CNR: RJHC020664852026 | URN: CMA / 5973U / 2026 Parth Infratech Private Limited, Having Its Registered Office At 7Th Floor, 707, Collector Circle, Paris Point, Bani Park, Jaipur- 302016 (Rajasthan). ----Appellant Versus Kone Elevators India Private Limited, Registered Office At Plot No. A-28, Sipcot Industrial Park, Kancheepuram- 602105 (Tamil Nadu). Branch Office- A-63, Shree Gopal Nagar Gopalpura Bypass 80 Feet Road, Jaipur- 302015, Through Its Authorized Signatory Mr. Bhupendra Chaturvedi Son Of Shri J.n. Chaturvedi. ----Respondent For Appellant(s) : Mr. Naresh Kumar Sejwani For Respondent(s) : HON'BLE MR. JUSTICE ARUN MONGA HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 01/09/2026 1. The appellant seeks setting aside of the order dated 06.07.2026 passed by the learned Commercial Court No. 1, Jaipur Metropolitan II, Jaipur. By that order, the application of the appellant seeking recall of the orders dated 06.03.2026 and 12.06.2026, and restoration of Arbitration Application No. 54/2026, was dismissed. The appellant further seeks setting aside of the orders dated 06.03.2026 and 12.06.2026, and restoration of Arbitration Application No. 54/2026 to its original number for adjudication on merits. 2. Arbitration Application No. 54/2026 was filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996, seeking setting aside of the ex parte arbitral award dated 24.12.2025. The application was dismissed for non prosecution on 06.03.2026, on the very first date of listing. On that day learned counsel for the appellant was engaged in a part heard matter before this Court. He reached the learned [2026:RJ-JP:35033-DB] (2 of 5) [CMA-3448/2026] Commercial Court at about 4.00 p.m., by which time the matter had already been dismissed. On being informed that the order had been signed, he submitted a handwritten application seeking recall at about 4.15 p.m. A formal restoration application was thereafter filed. 2.1 The restoration application was shown on the website of the learned Commercial Court for 12.06.2026, but it did not figure in the published daily cause list. The intervening period fell within the summer vacation. Learned counsel was also engaged in functions organised by his family members at Malpura, District Tonk, from 10.06.2026 to 16.06.2026. On subsequent enquiry it was learnt that the restoration application had in fact been listed on 12.06.2026 and had been dismissed for non prosecution, again on the first date of its listing. 2.2 The appellant thereafter filed an application under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, seeking recall of the orders dated 06.03.2026 and 12.06.2026 and restoration of Arbitration Application No. 54/2026. That application was dismissed by the impugned order dated 06.07.2026, inter alia on the premise that the original application under Section 34 had already been restored and had thereafter been listed on 12.06.2026. Hence this appeal. 3. Learned counsel for the appellant submits that the learned Commercial Court erred in dismissing the application under Order IX Rule 9 read with Section 151 of the Code, although the appellant had disclosed a bona fide and sufficient cause for non appearance. He submits that immediately after the dismissal on 06.03.2026 he approached the Court Master, and, on being told that the order had already been signed, submitted a handwritten application for recall on the same day. He further submits that the restoration application did not figure in the daily cause list, a fact noticed by the learned [2026:RJ-JP:35033-DB] (3 of 5) [CMA-3448/2026] Commercial Court itself, and that this ought to have weighed in assessing the bona fides of the appellant. 3.1 He further submits that the impugned order proceeds on an erroneous factual premise, namely that the Arbitration Application had been restored on the handwritten application and was thereafter listed on 12.06.2026. No order restoring the Arbitration Application was ever passed. What was listed on 12.06.2026 was only the restoration application, and it was dismissed for non prosecution. He submits that the learned Commercial Court also failed to appreciate the explanation regarding his engagement at the family function at Malpura, District Tonk, the documents showing the place and distance of the programme, the intervening summer vacation, and the absence of the matter from the daily cause list. 3.2 Lastly, he submits that the impugned order was passed without due consideration of the material facts and documents on record, and has resulted in the appellant being non suited without any adjudication of his challenge to the arbitral award on merits. Having regard to the bona fide explanation furnished, and to the settled principle that procedural law must advance the cause of justice, he prays that the impugned order be set aside and the Arbitration Application restored for adjudication on merits. 4. We have heard learned counsel for the appellant and perused the record. 5. We do not consider it necessary to issue notice in this appeal. No prejudice will be caused to the respondents, since we express no opinion on the merits of the challenge to the arbitral award, which remains to be adjudicated by the learned Commercial Court in due course. [2026:RJ-JP:35033-DB] (4 of 5) [CMA-3448/2026] 6. Turning to the first default, the dismissal on 06.03.2026 came on the very first date of listing. Learned counsel was on that day engaged in a part heard matter before this Court. He reached the learned Commercial Court at about 4.00 p.m. and, finding the matter dismissed and the order already signed, moved a handwritten application for recall at about 4.15 p.m. on the same day. That promptitude is difficult to reconcile with any want of diligence. The default does not appear to be thus a delibrate one. 7. The second default stands on a similar footing. The restoration application was displayed on the website of the learned Commercial Court but did not appear in the published daily cause list. Learned counsel ordinarily regulate their appearance by the cause list, and an omission from it is not a lapse attributable to the litigant. Here too the dismissal came on the first date of listing. 8. The cumulative effect of the two orders is that the challenge of the appellant to the ex parte arbitral award dated 24.12.2025 stands foreclosed, without any adjudication on merits and without any default of the appellant himself. Trite it may sound, but rules of procedure are handmaids of justice and are not meant to defeat it. Where the explanation offered is bona fide, and no prejudice to the opposite side is shown, the ends of justice are better served by a hearing on merits. 9. We are also satisfied that no prejudice will be occasioned to the respondents by restoration. The proceedings will merely resume before the learned Commercial Court at the stage at which they stood on 06.03.2026. 10. As an upshot, the appeal succeeds. The impugned order dated 06.07.2026 is set aside. The orders dated 06.03.2026 and 12.06.2026 are also set aside. Arbitration Application No. 54/2026 is restored to its [2026:RJ-JP:35033-DB] (5 of 5) [CMA-3448/2026] original number, to be heard and decided on merits and in accordance with law and the learned Commercial Court shall proceed further with the matter. 11. The appeal stands disposed of in the above terms. (ASHUTOSH KUMAR),J (ARUN MONGA),J 5/TUSHAR KUMAWAT