Non-party locus standi to recall an order rejected; evidentiary and enabling provisions do not create a substantive right.

Section 44 of the Indian Evidence Act, 1872 does not give a stranger to proceedings an independent right to reopen or recall an order; it only permits a party to challenge a judgment relied on as evidence for fraud, collusion, or incompetency of the court. Order 1 Rule 8A of the Code of Civil Procedure, 1908 is merely enabling and does not create a substantive right for a non-party to seek recall. As the applicant was neither a party nor a permitted intervener, the recall application and the challenge to costs were held not maintainable.

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Issues: Whether a non-party to the company petition had locus standi to seek recall of an earlier order, and whether Section 44 of the Indian Evidence Act, 1872 or Order 1 Rule 8A of the Code of Civil Procedure, 1908 conferred any such right.

Analysis: Section 44 of the Indian Evidence Act, 1872 is a rule of evidence which enables a party to a suit or other proceeding to challenge the competency of the court or allege fraud or collusion when a judgment is relied on as evidence. It does not create an independent right in a stranger to the proceeding to reopen or recall an order passed in the same proceeding. Order 1 Rule 8A of the Code of Civil Procedure, 1908 is only an enabling provision permitting participation of a person or body of persons interested in a question of law in appropriate cases; it does not confer a substantive right on a non-party to seek recall of an order. The appellant was neither a party nor a permitted intervener in the company petition, and the affected party had already unsuccessfully challenged the order. The challenge to the imposition of costs also could not be maintained by the appellant.

Conclusion: The application seeking recall was not maintainable at the instance of the appellant, and the objection based on Section 44 of the Indian Evidence Act, 1872 and Order 1 Rule 8A of the Code of Civil Procedure, 1908 failed.

Ratio Decidendi: A non-party cannot invoke Section 44 of the Indian Evidence Act, 1872 or an enabling participation provision to acquire locus standi to recall an order passed in proceedings to which she was not a party.

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