RESEARCH PROPOSAL

Judgements of courts of justice when relevant under IEA

PROPOSAL IN FULFILLMENT OF LAW OF EVIDENCE

FOR THE DEGREE B.B.A., LL. B (HONS.)

PROPOSED TO: - PROPOSED BY: -

MEETA MOHINI NAME – RAHUL RAJ

FACULTY OF LAW ROLL. NO. – 1845.

4TH - SEMESTER

2018-2019

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001

ACKNOWLEDGEMENT

I would like to thank my faculty Ms.. Meeta Mohini. whose guidance helped me a lot
with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me

immensely with materials throughout the project and without whom I couldn’t have
completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands that
helped me out at every stage of my project.

THANK YOU

NAME: RAHUL RAJ

ROLL NO: 1845

SEMESTER: 3RD (2017-22)

DECLARATAION

I hereby declare that the work reported in the B. B.A. LL.B. (Hons.) project report
submitted at Chanakya National Law University is an authentic record of my work
carried out under the supervision of Ms. Meeta Mohini. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my
project report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE – RAHUL RAJ

ROLL NO. – 1845

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

TABLE OF CONTENTS:

1. Introduction
2. Kinds of judgement
3. Difference between judgement in rem and judgement in personam
4. Section 40: previous judgements relevant to bar a second suit or trial
5. Section 41: relevancy of certain judgements in probate, etc., jurisdiction
6. Section 42: relevancy and effect of judgements, orders or decrees, other than
those mentioned in section 41
7. Section 43: Judgements etc other than those mentioned in Sections 40 to 42,
when relevant
8. Section 44: Fraud or collusion in obtaining judgement, or incompetency of court,
may be proved
9. Conclusion and suggestions
10. Bibliography
OBJECTIVES OF STUDY:
Through this study the researcher wants to find out:
• Procedures of providing evidence in the court.
• Relevancy of judgements
• Kinds of judgement

RESEARCH METHODOLOGY:
The researcher has adopted Doctrinal method of research to complete the project. Doctrinal
Methods refer to Library research or research done upon texts writings or Documents, legal
propositions and Doctrines, Articles, Books as well as Online Research and Journals relating
to the subject.

Hypothesis:
The researcher thinks the judgements related to evidence is not relevant.

SOURCES OF STUDY:
• Primary sources: Case Law, Constitution of India, Code of criminal procedure, etc.
• Secondary Sources: Newspapers, journals, periodicals, etc.

LIMITATIONS OF THE STUDY:

There are various hindrances which can be faced by the researcher during the formation of
this project such as scarcity of time, expensive legal materials for various research works,
research done by an individual
Introduction

Section 40 to Section 44 of the Indian Evidence Act, 1872 lay down the provisions relating to
judgements of Court of Justice, when relevant.

Section 40 deals with the previous judgements to bar a suit or trial.

Section 41 deals with the relevancy of certain judgements in probate etc. jurisdiction. Section
42 deals with relevancy and effect of judgements, orders or decrees other than those mentioned
in Section 41.

Section 43 relates to judgements etc. other than those mentioned in Sections 40 to 42, when
relevant.

Section 44 speaks about fraud or collusion in obtaining judgement or incompetence of Court,

may be proved.

The object of the provision of this chapter is to avoid multiplicity of the suit and to save
precious time of the Court.

There should be end of litigation in the interest of justice S.11 of C.P.C deals with Doctrine of
res Judicata which signifies that when a matter of fact has been finally and conclusively
resolved by a competent court. the same matter cannot be re-litigated once again

Kinds of Judgements

Judgements are classified into two types –

1. Judgement in Rem; and

2. Judgement in Personam
Judgement in Rem:

Judgements affecting the legal status of some subject matters, persons or things are called
'Judgments in rem' .e.g. Divorce Court Judgement, grant of probate or administration etc. Such
judgements are conclusive evidence against all the persons whether parties to it or not.

Judgement in Personam :

Judgements in personam are all the ordinary judgements not affecting the status of any subject
matter, any person or anything. In such judgements, the rights of the parties to the suit or
proceedings are determined.

In Hassan Abdullah vs. State of Gujarat,1 it was held that a Judgement is not relevant to
prove that the plaintiff has filed a false case.

Difference between judgement in rem and judgement in personam:-

JUDGEMENT IN REM JUDGEMENT IN PERSONAM

• It is adjudication pronounced upon • It is the ordinary judgements not
the status of a person or a thing by a affecting the status of any subject
competent court to the world matter, any person or anything.
generally.
• Judgement of a court in exercise of • The judgements of civil courts are
probate, matrimonial or insolvency judgement in personam.
jurisdiction confirming or take away
any legal character are judgements in
rem.
• It is binding on all persons, whether • It is binding on the parties to the suit
they are parties to those proceedings only.
or not.

1
AIR 1962 Guj214: 1962(2) Cr.LJ 55).
Section 40: previous judgements relevant to bar a second suit or trial –

The existence of any judgement, order or decree which by law prevents any courts from
taking cognizance of a suit or holding a trial is a relevant fact when the question is
whether such court ought to take cognizance of such suit, or to hold such trial.

This section deals with “Previous Judgments Relevant to bar a second suit or trial”. Section 40
incorporates the principle of res judicata. The plea of res judicata belongs to the province of
procedure, but it does not say that the judgment, order or decree is conclusive. It simply says
that the existence of such judgment, order or decree is relevant fact. A judgment which has the
effect of res judicata is relevant in civil and criminal cases.

The basic objective of incorporating this principle is to prevent multiplicity of suits and
interminable disputes between the litigants. Once there has been judgment, order or decree
about fact and laws no subsequent proceeding would be started. The doctrine of res judicata
rests upon the maxim “nemo debet bis vexari pro una et edem cause” (No man ought to be tried
twice for the same cause of action).

Sec. 40 deals with the principle of res judicata in civil cases or autre fois acquit or autre fois
convict, in criminal cases. The section allows whether a court can take cognizance of a suit or
holding a trial when there exists a relevancy of an earlier judgment, order or decree for
deciding. However, the conditions under which a former judgment, order or decree will prevent
a civil or criminal court from taking cognizance of a suit or holding a trial, do not belong to the
Law of Evidence but are contained in sec. 10-13 and Order 2 Rule 2 of the Code of Civil
Procedure, 1908 and to principles of autre fois acquit in sec. 300 of the Code of Criminal
Procedure, 1973. Sec. 298 of the latter Code prescribes the mode of proving a previous
conviction or acquittal. It may be noted that in civil cases trial of a particular issue decided
earlier may be barred. Even in criminal cases, there may be judgments which bar the trial, not
of a whole case, but of a particular issue, known as ‘issue estoppel’.2

In Raman Pillai v. Krishna Pillai3, it was held by Kerala High Court that recital made in
judgement between predecessors of the plaintiff and predecessors of defendants regarding right
in suit property are admissible for deciding title to the property between plaintiff and defendant.

2
185th Law Commission Report.
3
AIR 2002 Ker. 132.
Res Judicata and Estoppel-Distinction: The rule of estoppel is not a rule of substantive law.
It is a rule of evidence. Res judicata belongs to law of procedure regulated by Section 11 of the
C.P.C. Res judicata ousts the jurisdiction of the court, while estoppel shorts the month of a
party.

Any finding in a criminal proceeding by no stretch of investigation would be binding in a civil

proceeding. If a person has been tried for an offence and either convicted or acquitted of it, he
cannot be tried again for the same offence. The plea of autre fois convict (who is convicted) or
autre fois acquit (who is acquitted) in the previous case has been held to be good defense.
Section 403 of Cr. PC has incorporated this principle.

On the other hand. Article 20(2) of the Constitution of India gives guarantee against double
jeopardy which provides “no person shall be prosecuted and punished for the same offence
more than once.”

In K.G. Premshanker v Inspector of Police4, the Supreme Court has laid down the following
principles when judgments of courts of justice are relevant:

1. The previous judgment which is final can be relied upon as provided in Sections 40 to
43 of the Evidence Act;
2. in civil suits between the same parties, principle of res judicata may apply;
3. in a criminal case, Section 300, Cr. PC makes provision that once a person is convicted
or acquitted, he may not be tried again for the same offence if the conditions mentioned
therein are satisfied; and
4. if the criminal case and the civil proceedings are not for the same cause, judgment at
the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied,
but it cannot be said that the same would be conclusive except as provided in Section
41.

4
AIR 2002 SC 3372.
In the present section 40 it intends to bring up rulings interparty but for which there is no
provision in CPC. Therefore a reference may be made to the recent judgment of the Supreme
Court in K.G. Premshankar v. Inspector of Police,5 which refers to secs. 40, 41, 42 and 43
and to the relevance of previous judgment in a civil case, in a subsequent criminal case. It is
not always conclusive though it is always relevant.

Thus the suggestion stands that there should be redrafting that there can be bar of ‘issues’
rather than merely to suits and trials. There needs to be addition of words “or determining a
question” after “taking cognizance of a suit or issue or holding a trial”. Also in the end of the
section addition “or determining such questions” after “Court ought to take cognizance of
such suit or issue, or to hold such trial.”

5
AIR 2002 (6) SCALE 371.
SECTION 41 - Relevancy of certain judgements in probate, etc., jurisdiction

A final judgment, order or decree of a Competent Court, in exercise of probate,

matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away
from any person any legal character, or which declares any person to be entitled to any
such character, or to be entitled to any specific thing not as against any specified person
but absolutely, is relevant when the existence of any legal character, or the title of any
such person to any such thing, is relevant..

Such judgment, order or decree is conclusive proof –

1. That any legal character which it confer accrued at the time when such judgment,
order or decree come into operation;
2. That any legal character to which it declares and such person to be entitled,
accrued to that person at the time when such judgment, order or decree declares
it to have accrued to that person;
3. That any legal character to which it takes away from any such person ceased at
the time from which such judgment, order or decree declared that it had cased or
should cease.
4. And that anything to which it declares any person to be so entitled was the
property of that person at the time from which such judgment, order or decree
declares that it had been or should be his property.

Section 41 deals with what is known as judgement in rem, which not only bind the parties at
the representatives to it, but also are binding as against the whole world.

For a judgement to be binding and conclusive proof under section 41 the following conditions
have to be satisfied –

• The judgement must be a final judgement.

• The court delivering the judgement must be competent.
• The judgement must have been delivered by the court in the exercise of Probate, size
of Matrimonial, Admiralty or Insolvency jurisdiction.
• The judgement must confer on or take away from any person any legal character or
declare that any person is entitled to such legal character or declared that any person is
entitled to any specific thing absolutely.
 • the judgment is conclusive proof of matters (Probate, size of Matrimonial, Admiralty
or Insolvency jurisdiction).

This section is lengthy and deals with Relevancy of certain judgments in probate, etc.
jurisdiction (Including matrimonial, admiralty or insolvency jurisdiction). Such judgments,
order, decree is “conclusive proof”. This section refers to only 4 types of cases and is based on
public policy. This section is not restricted to court in India but also includes judgments
pronounced by foreign courts in respect of these four matters.

Principle:

For the purpose of relevancy judgment is either judgment-in-rem or judgment-in-personam.

This section usually deals with judgment-in-rem. As a matter of principle, a person is not bound
by any transaction to which he is not a party. Therefore, judgment between the parties is binding
upon third party, but Section 41 is an exception and the judgment which is in judgment-in-rem
is admissible under this section. This section does not use the expression “judgement in rem”.
It is based on the judgement of Sir Barnes Peacock in Kanhiya Lal v. Radha Churn6. To
attract Section 41 judgment has to be pronounced. Mere pending of two proceedings whether
civil or criminal, however, by itself would not attract the provisions of Section 41 of this Act.

It means a judgment against the whole world. According to Taylor “a judgment-in-rem has
been defined to be an adjudication pronounced, as its name indeed denotes upon the status of
some particular subject-matter, by a tribunal having competent authority for the purpose. A
judgment-in-rem under this section is conclusive in a civil as well as in criminal proceeding.
Both the proceedings may run simultaneously.

If the judgment of a civil court is not binding on a criminal court, a judgment of a criminal
court is not to be binding in civil court. Such judgment is conclusive evidence for and against
all persons whether parties, privies or strangers of the matters actually decided.” In Section 41
judgments of courts exercising probate, matrimonial, admiralty or insolvency jurisdictions are
judgments-in-rem.

6
7 WR 338 (1867) FB.
Judgment-in-personam:

It means a judgment between the parties in contract, tort or crime. Judgment-in-personam binds
the parties and their representative- in-interests. This sort of judgment is not relevant in any
subsequent proceeding under section 41.

Bindingness of judgment-in-rem:

The judgment-in-rem is conclusive proof of matters showing that:

• it has conferred legal character, or

• it has declared that person has such legal character or
• it has declared that such legal character has ceased to exist.

The legal character means a legal status. To say that a person is not a partner of a firm is not to
declare his status or legal character; it is merely to declare his position with respect to the
particular firm.

Under section 41, a judgment-in-rem dealing with legal character of a person can be
pronounced by the courts exercising probate, matrimonial, admiralty and insolvency
jurisdiction.

Probate jurisdiction:

Probate jurisdiction means jurisdiction of a court under the Indian Succession Act, 1925 in
respect of testamentary and intestate matters. By exercising probate jurisdiction the court can
pronounce the genuineness of will of a deceased person and grant letter of probate in favour of
a person who may act for the deceased in execution of his will. A judgment by a probate is a
judgment-in-rem by which legal character of a person is granted. The court must also satisfy
its conscience before it passes an order. A judgment of a court of probate is conclusive proof
and is binding on the entire world. The grant of probate is the decree of a court which no other
court can set aside except for fraud or want of jurisdiction.

In Surendra Kumar v. Gyanchand7, it was held that the judgement of a probate court granting
probate of a will in favour of the petitioner must be presumed to have been obtained in
accordance with the procedure prescribed by law and it is a judgement in rem.

7
AIR 1975 SC 875.
Matrimonial jurisdiction:

A court having matrimonial jurisdiction can decide matrimonial causes under various Act. By
virtue of this jurisdiction the court can decide the legal status of a person whether he is married
or she is widow or divorcee. The judgment of a Matrimonial court is judgment-in-rem and is
admissible under section 41. A decree of nullity and divorce under Marriage Law has the same
effect.

Admiralty jurisdiction:

Admiralty jurisdiction is exercised by the High Court under the Letters Patent. The finding of
a court of admiralty is judgment-in- rem. The admiralty court decides cases arising out of war
claims.

Insolvency jurisdiction:

A court having insolvency jurisdiction exercises its power under the Presidency Towns
Insolvency Act, 1909 and the Provincial Insolvency Act, 1920. By exercising insolvency
jurisdiction the court can determine legal status of a person whether he is insolvent or he is
discharged from insolvency or annulment of his insolvency. The judgment of the court is
judgment-in-rem and binding on all.

Foreign judgements declaring status:

Foreign judgements declaring status of persons domiciled within their territories are by the
comity of nations treated in India as analogous to judgement in rem. 8

Judgement by compromise:

It is not a judgement in rem and hence is no bar to a subsequent suit.9

8
Natraj Pilllay v. Subbaraya Chettiar, 1938 Mad 693.
9
Rahmat Ali Khan (Pir) v. Mt. Babu Zuhra, (1911) PR No. 14.
Section 42- Relevancy and effect of judgments, orders or decrees, other than those
mentioned in Section 41:

Judgments, orders or decrees other than those mentioned in Section 41, are relevant if
they relate to matters of a public nature relevant to the enquiry; but such judgments,
orders or decrees are not conclusive proof of that which they state.

Illustration:

A sues В for trespass on his land. В alleges the existence of a public right of way over the
land, which A denies.

The existence of a decree in favour of the defendant, in a suit by A against С for a trespass
on the same land in which С alleged the existence of the same right of way, is relevant,
but it is not conclusive proof that the right of way exists.

This section deals with Relevancy and effect of judgments, orders or decrees, other than those
mentioned in Section 41 and declares them as conclusive proof. However they are they are
relevant only in matters of public nature. There is an illustration below sec. 42 which refers to
a suit by A against B alleging existence of a public right pleaded by B over A’s land. The fact
that in a suit by A against C, C claimed a public right was relevant but not conclusive proof of
the right of way. Under section 42 judgments, orders or decrees other than those mentioned in
Section 41 are relevant if they relate to the matters of public nature whether between the same
parties or not. For example, customs, tolls on public highway, tolls on ferry etc. This section is
also an exception to the general rule that no one should be affected by a judgment to which he
is not a party.

This is a principle drawn from English law and is an exception to the general rule that persons
not parties or privies to a judgment shall not be affected or prejudiced thereby. Vepa P. Sarathi10
summarises as follows as to the effect of sec. 41 to 44 and sec. 13: “The result may be stated
thus:

• If a judgment comes under sec. 41, it is relevant as well as conclusive even against a
third party;
• If it comes under sec. 42, it is relevant as against a third party;

10
Veepa Sarthi, Law of Evidence, 5thed. , EBC, 2002, p.173.
 • All other judgments are relevant as between the parties or their representatives only,
under sec. 40.”

The author adds: “The existence of such judgments, i.e. those mentioned in (c) would be
relevant as against third parties, if such existence of a conclusion is relevant under some 45
section of the Act relating to relevancy, as a fact in issue, or a motive under sec. 8 or a
transaction under sec. 13.” Veepa Sarathi also discusses sec. 40 to 42 and also sec. 43 this
aspect (ibid p. 173) and states as follows: “If the judgment of the civil court comes under sec.
41 or sec. 42, it would be relevant in a criminal case also. But if it does not come under these
two sections, it cannot be relevant, because sec. 40 cannot apply. The application of sec. 40
depends upon sec. 11 of the Civil Procedure Code and sec. 300 of the Criminal Procedure
Code.

Scope and application:

Judgments neither inter-parties nor judgment-in-rem is relevant under this section if they relate
to matters of public nature under inquiry. According to Section 42 the matters of public nature
means matters affecting entire population or at least a large section of the population. “It should
be remembered that judgments relating to matters of public nature relevant under section 42
neither work as res judicata nor they are conclusive as judgment-in-rem.” They can be used as
corroborating evidences. Such evidence may not be between the same parties, but they are
related only to the matters of public nature relevant to the inquiry. The judgment of the Privy
Council did not bind the plaintiff on the principle of res judicata, it was definitely a relevant
circumstance to be taken note of because of what has been stated in Section 42 of the Act.

Not conclusive:

In Anil Behari v Latika Bala Dassi11, the Supreme Court of India has held that the previous
judgement in a criminal trial was relevant in the subsequent civil proceeding only to show that
there was such a trial resulting in the conviction for murder of Charu, a beneficiary under the
will of the deceased testator, but it is not evidence of the fact that Charu was the murderer and
that question had to be decided on evidence in the civil proceeding.

11
AIR 1955 SC 566.
Ins. By Act 3 of 1891, sec 5.
Section 43: Judgements etc other than those mentioned in Sections 40 to 42, when
relevant

Section 43 - Judgments, orders or decrees other then those mentioned in Sections 40, 41
and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in
issue, or is relevant, under some other provision of this Act.

Illustrations

a) A and B separately sue C for a libel which reflects upon each of them C in each
case says that the matter alleged to libelous is true and the circumstances are such
that it is probable true in each case, or in neither.
A obtains a decree against C for damages on the ground that C filed The Orient
Tavern make out his justification. The fact is irrelevant as between B and C.
b) A prosecutes B for adultery with C, A’s wife.
B denies that C is A’s wife, but the court convicts B of adultery.
Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. CC
says that she never was A’s wife.
The judgment against B is irrelevant as against C.
c) A prosecuted B for stealing a cow, from him, B is convicted.
A, afterwards, sues C for cow. Which B had sold to him before his conviction? As
between A and C, the judgment against B is irrelevant.
d) A has obtained a decree for the possession of land against A, C, B’s son murders
A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
e) A is charged with theft and with having been previously convicted of theft. The
previous conviction is relevant as a fact in issue.
f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A
was convicted and sentenced is relevant under Section 8 as showing the motive for
the fact in issue.

Section 43 provides that if judgment is not relevant under sections 40, 41 or 42 it will not be
relevant unless the judgment itself is a fact-in-issue or is a relevant under some other provisions
of the Act. This section expressly contemplates cases in which a judgment itself is fact-in-issue
or is relevant fact, being admissible except Sections 40,41 and 42. The purpose of this Section
is to prohibit the judgements from being given in evidence which are neither enter parts nor a
judgement in rem nor a judgement relating to matters of public nature.

The object of enacting Section 43 is of two-fold, viz.,—

• “to treat every case a class by itself so that the judgment delivered in one case may not
be availed of by parties in another case; and
• to maintain the independence of courts by preventing the parties from submitting before
the court hearing their case the judgments of other courts.”

“The exceptions to this rule are judgments which are relevant under Article 141 or Article 227
of the Constitution as binding precedents or the judgments which are relevant under sections
41 and 42 of the Evidence Act or which are necessary to be taken into consideration when plea
of res judicata is raised.”

To this general rule of exclusion, the section provides two exceptions: The judgement, decrees
or orders not relevant under three preceding sections, are relevant:

1. when the existence of such judgement, order or decree is a fact in issue;

2. when the judgement, order or decree is relevant under some other provisions of the act.

Judgement in fact in issue: if the object of producing the judgement be merely to prove the
existence of the judgement, its date or its legal consequences, the proof of a certified copy is
conclusive evidence of those facts. In Tirupati Tirumala Devasthanam v. K.M.
Krishnaiah,12 the Supreme Court said that the judgement produced as evidence to prove the
title in regard to the suit property is admissible in evidence even though plaintiff was not party
to that suit if it is fact in issue.

Relevant under some other provisions of the act: the existence of a judgement will
sometimes be a relevant fact under some of the other provisions of the act as to relevancy. For
example, the fact that A has obtained decree of ejectment against B may be a motive for B’s
murdering A. therefore the decree of ejectment will be admissible to prove the motive of
murder at the trial of B for the murder of A. motive is relevant under section 8 of the act and
therefore a decree showing motive is admissible under section 43.

12
AIR 1998 SC 1132.
Admissibility of judgment:

A judgment not inter parties is admissible if its existence is a relevant fact. Under this section
judgments other than those mentioned in Sections 40, 41 or 42 are of themselves irrelevant,
unless the existence of the judgment is relevant under some other provisions of the Act. Relying
upon the decision of Bombay High Court in Laxshman Govind v Amrit Gopal, it was held
the judgment not inter-parties are inadmissible to prove the fact stated therein. The judgment
in the Criminal Court would not be relevant in the claim petition under the Motor Vehicle Act.
“The standard of proof for imposing liability is widely different between the civil and criminal
courts and while in a civil suit a defendant can be made liable on probabilities or the action
decided on a mere consideration of the burden of proof in the absence of other evidence, no
accused can be convicted on such uncertain grounds.”13

Effect of judgment of Criminal Court in Civil cases:

Judgment of a Criminal case cannot be relied on as binding in civil case. Similarly, the findings
in civil proceeding are not binding on a subsequent prosecution. However, admission made by
a party is admissible in subsequent civil proceedings.14

In case of B.M. Shah v. State of Maharstra,15 it was held that the civil court proceedings
over-ride criminal court proceedings. But K.G. Prem Shankar v. Inspector of police,16
overruled the B.M. Shah’s decision and the Supreme Court held that where a suit for damages
was dismissed, criminal charge will not merely depend upon this ground.

13
Duches of Kingston’s case (1776).
14
Emperor v. Khwaja Nasir Ahmed, 1945 PC 18.
15
AIR 1996 SC.
16
AIR 2002 SC 3372.
Section 44: Fraud or collusion in obtaining judgement, or incompetency of court, may be
proved

Any party to a suit or other proceeding may show that any judgment, order or decree
which is relevant under Section 40,41 or 42 and which has been proved by the adverse
party, was delivered by a Court not competent to deliver it, or was obtained by fraud or
collusion.

The general rule is, a judgement of a competent court shall be binding on the parties operating
as Res Judicata in subsequent proceedings between the same parties. Section 44 contains
exception to this rule. The section deals with Fraud or collusion in obtaining judgment, or
incompetence of Court, may be proved. According to Section 44, a judgement is liable to be
annulled /impeached on the ground of –

• of want of jurisdiction;
• fraud; and
• collusion

Section 44 gives an opportunity to the adverse party to raise questions that the judgment
obtained under sections 40, 41 and 42 by the first party in the previous suit or proceeding was
not in accordance with the principles of the Law of Evidence. It is not necessary for the adverse
party to bring a separate suit to have the previous judgment set aside, but he can challenge the
judgment in the same suit or proceeding that the judgment was delivered by the court not
competent to deliver it or the judgment was obtained by fraud or collusion. This section applies
to both Civil and Criminal proceedings. However, Sections 41 to 44 do not suggest that the
decisions of the civil court would be binding on the criminal courts.

Principle:

Section 44 lays down that a party to a suit or other proceeding may show that a judgment, order
or decree:

1. Which is relevant under section 40 that is, which would, as a judgment inter-parties
operates as res-judicata;
2. Which is relevant under section 41 that is, which is relevant as a judgment-in-rem;
3. Which is relevant under section 42 that is, which is evidence as a judgment relating to
public matter;
 4. Which is proved by the adverse party; that it was passed by a court,
i. which had no jurisdiction to pass it or
ii. it was obtained by fraud or collusion.

The Section 44 “is permissive and not prohibitive.” It allows party to avail a judgment by
proving fraud or collusion, but it does not destroy his substantive right which exists
independently of the Act. Other aspect of this section is that the application of the rule is limited
to the cases in which a decree is treated relevant only under sections 40, 41 and 42. The
principle of Section 11 of the Civil Procedure Code will not apply if any one of the grounds
mentioned in Section 44 exists. The principle of res judicata does not apply if a previous decree
is proved to have obtained by fraud.

Court without competence:

The expression “a court not competent to deliver it” means that the court had no jurisdiction to
decide the matter in question. “The competency of a court and its jurisdiction are synonymous
term. This means the right of court to adjudicate in a given matter.”

A judgment delivered by the court was not competent to deliver it. It means the court had no
jurisdiction to decide the matter in question and so was not binding. In a case where the question
of court’s jurisdiction has been directly raised and directly decided in favour of the jurisdiction
upto the highest court it would not be open to a party to raise the question against.

Judgment, Order, or decree obtained by fraud:

When a judgment, order or decree is obtained by practicing fraud upon the court it is not valid.
A fraud may be either actual or positive fraud or constructive or legal fraud. According to Sir
James Stephen in some cases “it may be mere secrecy.”

The word “fraud” is not defined in the Indian Evidence Act. It is defined by section 17 of the
Indian Contract Act.

Under section 44 order sought to be executed was not binding if it was passed by mistake or
by fraud. A decree of a superior court can be declared void by an inferior court on the ground
of fraud. If a judgment or decree initial by fraud, the same would be a nullify. In such an event
Section 44 could be attracted. A compromise decree cannot be said to be the result of fraud.
Gross negligence: Section 44 is also applied to the cases of gross negligence. The Privy
Council has laid down that Section 44 cannot be extended to cases of gross negligence. But in
the said case the PC observed that “the court cannot treat negligence, or gross negligence, as
fraud or collusion, unless fraud or collusion is the proper inference from the facts.” There is a
supreme court judgment saying to include ‘negligence’ as a separate ground in Bishun Deo vs.
Seogem Ray,17 but merely because of one judgment it would not be strong and sufficient to
add a separate clause. Thus, no addition is required in this section.

Collusion: “Collusion” means “an agreement or compact between two or more persons to do
some act in order to prejudice a third person or for some improper purpose.” The meaning of
section is that if collusion is proved between the parties to a previous suit then the judgment in
that suit which is relevant under section 40 cannot act as a bar. An ex-party decree obtained by
collusion may be set aside under order 9, Rule 1 of the C.P.C. Collusion can be vis-à-vis
plaintiff/ defendant/ witness. Thus, Sections 45 to 51 lay down the rule of exceptions when an
opinion of a witness who is generally a third person.

17
AIR 1951 SC 280 at 283 (para 23).
Conclusion and suggestion

A judgment which has the effect of res judicata is relevant in every case in which it has the
effect. Section 40 incorporates this principle. The principle is that where a cause of action has
been agitated before court of law between certain parties and the case has been decided, then
new action can be brought on the same cause of action and between the same parties, and if the
plaintiff proposes to trouble the defendant again with the same cause of action, the earlier
judgment is complete bar. Thus the earlier judgment will be relevant because it will have the
effect of preventing the court from taking cognizance of the case.

In P.G. Eshwarappa v. M. Rudrappa18, it was held that the principles of estoppel or res
judicata do not apply when they would contravene some statutory direction or prohibition. This
is something which cannot be overridden or defeated by a previous judgment between the
parties.According to B. Meenakshi Sundaram v. Kuttimalu 19, a judgment in rem has been
defined to be a judgment of a court of competent jurisdiction determining the status of a person
or thing, or the disposition of a thing (as distinct from a particular interest in it) of a party of
the litigation. It is a kind of declaration about the status of a person e.g., that he is an insolvent,
and is effective against everybody whether he was a party to the proceeding or not. That is why
it will be relevant in every case or proceeding in which the solvency of person is in question.

It is essential for a judgment under section 41 to be regarded as a judgment in rem that it should
either confer upon or take away from any person any legal character or it should declare the
person to be entitled to any such character, or to be entitled to any specific person, but
absolutely. The judgment is a conclusive proof of the fact that the legal character which it
confers accrued to the person concerned from the date on which the judgment came into
operation. Where the judgment declares a person to be entitled to legal character, it is
conclusive of the fact that the legal character accrued to the person at the time when the
judgment came into operation.

A judgment upon a matter of public nature, for example, a determination that a particular street
is a public highway, is relevant in every case proceeding in which that aspect of the property
is again question.

18
[(1996) 6 S.C.C. 96]
19
(I.L.R. 1958 Ker. 9)
Judgments on such matters are relevant to every case or proceeding in which the matter is again
in question, but shall not be conclusive of the matter. It means that whatever any such judgment
is cited, the party affected by it may lead evidence to the contrary and show that not all the
information was presented before the court when the judgment was pronounced. For example,
a person is prosecuted for trespass upon a land and the complaint is dismissed, the court holding
that public has a right of way over the same land. Subsequently, the landlord prosecutes another
person for trespass over the same land. The earlier judgment will definitely be relevant, but
will not be conclusive of the fact that the right of way exists. This will enable the landlord to
produce further evidence in support of his case.

The illustration appended to the section amply show that the existence of a judgment may
become relevant under any of the provisions relating to relevancy running from section 6 to
55. A judgment may, for example, be relevant as showing a state of mind; it may be useful for
overthrowing the defence of accident or may, in circumstances, constitute an evidence of
character.

In Rumi Dhar v. State of W.B.20, a settlement in a civil proceeding for recovery of a loan was
held to be not of matter relevance in a subsequent criminal proceeding involving the same
matter.

The existence of a judgment over a matter which is again in question is a satisfactory piece of
evidence, though, of course, nothing is said about its evidentiary value in the Evidence Act.
The only thing that the Act provides is that whenever a judgment is relevant by reason of any
of the exceptions, its value may be demolished by showing that it was delivered by a court of
incompetent jurisdiction or that it was obtained by fraud or collusion. This amounts to an
indirect assertion that unless the value of a judgment is so demolished, it is valuable as a piece
of evidence.

The value of a judgment can be attacked on three different grounds, namely, that,-

• The judgment was delivered by a court of incompetent jurisdiction, or

• It was obtained by collusion, or

• It was obtained by fraud.

20
(AIR 2009 S.C. 2195)
BIBLIOGRAPHY

BOOKS:-

1. Avtar Singh, Principles of the law of evidence (2008) Central Law Agency, New
Delhi.
2. Dhiraj Lal: Law of Evidence (1994) Wadhwa, Nagpur.
3. Batuk Lal: Law of Evidence (2012) Central Law Agency, Allahabad.

WEBSITES:-

1. www.shareyoureassy.com
2. www.legalservices.com
3. www.indiankanoon.com
4. www.srdlawnotes.com

BARE ACT :-

1. The Indian Evidence Act, 1872

2. The Code of Criminal Procedure, 1973
3. The Code of Civil Procedure, 1906