Failure to prosecute despite repeated opportunities defeats recall of a non-prosecution dismissal.

The petitioner sought recall of the order dated 4 August 2026, which had disposed of his earlier recall/restoration application for non-prosecution.

His original criminal miscellaneous petition had been dismissed as withdrawn on 8 November 2024, with liberty to raise the issue before the trial court at the stage of determination of charge.

After an earlier restoration application was dismissed as not pressed, he filed another application alleging that the counsel who withdrew the original petition had not been engaged or instructed by him.

He appeared in person on two dates and sought time to file an affidavit, but did not appear on subsequent listed dates; the application was then disposed of.

In seeking recall, he relied on *Firm Jethmal and Sons v. State of Rajasthan* and the principle of *audi alteram partem*.

Whether the order disposing of the petitioner’s restoration application for non-prosecution should be recalled on the ground that he was denied a hearing.

Whether the petitioner’s successive proceedings and failure to prosecute, despite an alternative remedy and repeated opportunities, justified refusing further recall.

The principle of *audi alteram partem* ordinarily requires a reasonable opportunity of hearing before a person’s rights or interests are adversely affected, but its application depends on the procedural context.

The court distinguished *Firm Jethmal and Sons v. State of Rajasthan*, which concerned dismissal for default of an appeal against conviction under Section 138 of the Negotiable Instruments Act and held, in that context, that the appeal should not be dismissed without consideration on merits.

The court treated recall as a discretionary remedy, not a means to repeatedly reopen proceedings where the applicant had been afforded opportunities to prosecute them.

It also noted that Sections 2 and 7 of the Rajasthan Vexatious Litigation (Prevention) Act, 2015 provide for a statutory mechanism to declare a person a vexatious litigant and make that Act additional to existing law; no declaration under the Act was sought or made in this case.

The petitioner was the applicant responsible for prosecuting the earlier restoration application. He appeared twice, sought time to support his allegations against counsel by affidavit, and was given that opportunity, but thereafter failed to appear on successive dates.

The court therefore found no denial of a hearing and held that the principle relied on from *Firm Jethmal and Sons* did not assist him, because the present application concerned his own failure to prosecute rather than an appeal against conviction dismissed without consideration on merits.

Further, the original withdrawal order preserved his ability to raise the issue before the trial court, so he was not left without a remedy.

The court considered his broader litigation conduct only in assessing whether to grant further discretionary indulgence, and expressly made no formal vexatious-litigant declaration.

It dismissed the application and directed the petitioner to deposit ₹10,000 with the Rajasthan State Legal Services Authority within 60 days; pending applications, if any, were also disposed of.