Recall of infructuous dismissal justified when consequential assessment order is later produced, restoring the appeal on merits.

An appeal dismissed as infructuous can be recalled when the factual basis for that dismissal is later removed by production of the consequential assessment order. Here, the subsequent availability of that order justified restoring the appeal for fresh adjudication on merits in the interest of justice. The earlier dismissal was therefore set aside and the appeal restored; the miscellaneous application was allowed.

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Issues: Whether the earlier order dismissing the appeal as infructuous should be recalled and the appeal restored for adjudication on merits after production of the consequential assessment order.

Analysis: The appeal had earlier been dismissed as infructuous because the consequential assessment order could not be produced at that time. The subsequent production of that assessment order removed the basis on which the appeal had been treated as infructuous. In these circumstances, and in the interest of justice, the earlier order required recall and the matter had to be restored for fresh hearing on merits.

Conclusion: The earlier order was recalled and the appeal was restored for adjudication on merits; the Miscellaneous Application was allowed.

Ratio Decidendi: When the factual basis for treating an appeal as infructuous is later displaced by production of the consequential order, the order may be recalled and the appeal restored for decision on merits in the interest of justice.

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