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: 4th (2017-22)

DECLARATION

I hereby declare that the work reported in the B.B.A. LL.B. (Hons.) project report titled “Is Municipal
corporation an industry or not.” submitted at Chanakya National Law University is an authentic
record of my work carried out under the supervision of MS. Meeta Mohini, Faculty of law . 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

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.
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
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 Section
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:-

1
AIR 1962 Guj214: 1962(2) Cr.LJ 55).
 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.

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 Pillai 3, 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.

Res Judicata and Estoppel

2
185th Law Commission Report.
3
AIR 2002 Ker. 132.
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 Police 4, 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.

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
4
AIR 2002 SC 3372.
5
AIR 2002 (6) SCALE 371.
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.”

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 confers 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.

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:

6
7 WR 338 (1867) FB.
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.

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.
7
AIR 1975 SC 875.
 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

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:

8
Natraj Pilllay v. Subbaraya Chettiar, 1938 Mad 693.
9
Rahmat Ali Khan (Pir) v. Mt. Babu Zuhra, (1911) PR No. 14.
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;
 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

10
Veepa Sarthi, Law of Evidence, 5thed. , EBC, 2002, p.173.
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.

Section 43: Judgements etc other than those mentioned in Sections 40 to 42, when
relevant

Section 43 - Judgments, orders or decrees other than 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

11
AIR 1955 SC 566.
Ins. By Act 3 of 1891, sec 5.
 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 libellous 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.

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
12
AIR 1998 SC 1132.
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 Maharashtra,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.

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

13
Duchess of Kingston’s case (1776).
14
Emperor v. Khwaja Nasir Ahmed, 1945 PC 18.
15
AIR 1996 SC.
16
AIR 2002 SC 3372.
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 up to 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.

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

CONCLUSION AND SUGGESTIONS

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.legalservices.com
2. www.indiankanoon.com
3. 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