Recall of ex parte appellate orders requires sufficient cause for absence and a substantive issue left unconsidered.
Recall of an ex parte appellate order requires the applicant to show sufficient cause for non-appearance and a substantive matter that was left unconsidered. An adjournment request sent to the Registry by the party, unsupported by proof of counsel's illness and not properly placed before the Bench, was treated as inadequate to justify restoration. The pending miscellaneous application did not prevent disposal of the appeal because it related to an earlier interlocutory order, and the limitation point was not an independent basis for recall since it had already been considered on the existing record. Recall and restoration were therefore refused.
Issues: (i) Whether the order passed ex parte warranted recall and restoration of the appeal on the basis of the adjournment letter and the claimed absence of counsel. (ii) Whether the pending miscellaneous application or the alleged limitation issue furnished any ground for recall.
Issue (i): Whether the order passed ex parte warranted recall and restoration of the appeal on the basis of the adjournment letter and the claimed absence of counsel.
Analysis: The application for recall rested on the assertion that an adjournment letter had been sent to the Registry and that counsel was unwell. The letter was not placed before the Bench when the appeal was heard, was sent by the party rather than by counsel, and was unsupported by any proof of illness. The requirement is that such a request should be properly presented and supported by material showing sufficient cause. A mere assertion made later could not substitute for evidence, and a practice of entertaining informal adjournment requests could not create an enforceable right.
Conclusion: The absence on the hearing date was not shown to be supported by sufficient cause, so recall and restoration were not justified.
Issue (ii): Whether the pending miscellaneous application or the alleged limitation issue furnished any ground for recall.
Analysis: The pending miscellaneous application did not bar disposal of the appeal, as it related to an earlier interlocutory order and not to the restoration order ultimately passed. The limitation point was also not a stand-alone basis for recall, because an applicant seeking recall must not only explain the ex parte absence but must also show what material issue was omitted from consideration. In any event, the earlier order had already considered limitation, and limitation was treated as a mixed question of law and fact capable of being decided on the existing record.
Conclusion: Neither the pendency of the miscellaneous application nor the limitation argument furnished any ground for recall.
Final Conclusion: The application for recall and restoration was rejected, leaving the prior ex parte disposal undisturbed.
Ratio Decidendi: Recall of an ex parte appellate order requires proof of sufficient cause for absence and disclosure of a substantive issue omitted from consideration; informal or unsupported adjournment requests do not by themselves justify restoration.
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