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Report No. 185

Section 43

We had briefly referred to Section 43 while discussing Section 42 but now we shall refer to it specifically. Section 43 refers to 'Judgments etc., other than those mentioned in Section 40 to 42, when relevant. It reads as follows:

"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."

The section deals with Judgments not inter partes. There are six illustrations below Section 43. Illustrations (a), (b), (c) refers to situations where an earlier Judgment is irrelevant in a latter case. Illustration (a) refers to a situation where both cases are civil in nature, (b) to an earlier criminal case and a latter civil case and (c) again to an earlier criminal case and a latter civil case.

Illustrations (d), (e), (f) deal with situations where an earlier Judgment is relevant in a latter case, otherwise than under Section 40, 41 and 42. Ill. (d) refers to an earlier civil case and a latter criminal case, (e) with an earlier criminal case and a latter criminal case and (f) when both are again criminal cases. In (d), relevancy is accepted because the existence of the earlier Judgment in the civil case showed that 'motive' under Section 8 from the latter crime; in (e), relevancy is accepted because it is a 'fact in issue' in the latter case; in (f) relevancy is accepted because the earlier judgment is evidence of motive under Section 8 in the latter case.

Sarkar explains (15th Ed, 1999 p. 838) that in Section 40 to 42, the Act referred to specific situations; Section 40 to situations where an earlier judgment barred a latter one (both in civil and criminal matters); Section 41 to judgments in four classes where they are conclusive against all the world; Section 42 to judgment of a public nature which are valid against strangers; and now Section 43 refers to a general rule that all other judgments not inter partes are irrelevant unless when their existence is a fact in issue, or when it is relevant under the rules of relevancy contained in other provisions of the Act, such as Section 8 (which refers to motive, preparation and previous or subsequent conduct); Section 11 (which says when facts not otherwise relevant become relevant); Section 13 (when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant), Section 54 Explanation. (2), when a previous conviction is relevant as evidence of bad character), etc.

In such exceptional cases, judgments, not inter partes, are relevant. The view of the majority Full Bench in Jaggulal v. Fatehlal: ILR 6 Cal 171 that a judgment cannot be a transaction is no longer valid.

The section has been adverted in S.P.E. Madras v. K.V. Sundara Vedu: AIR 1978 SC 1017; Jakati v. Borkar: AIR 1959 SC 282. In land acquisition cases judgments not inter partes are relevant if they relate to similar situation of the property and contain determination of value on dates fairly proximate to the relevant date. (Improvement Trust v. H. Narayanaih AIR 1976 SC 2403).

In Brijbasilal v. State: AIR 1979 SC 1080, in a document, the accused confessed to misappropriation of 3 items of money. In a Judgment in a previous case relating to two items, the confession was found not to be voluntary and accused was acquitted. In a subsequent case relating to the third item, the earlier judgment was held admissible to show the issue in question in that case and the decision thereof. In the circumstances of the case, the document containing the confession was found to be of little value and should not form the sole basis of conviction.

In the 69th Report, it was stated in para 16.71 that the only change required in Section 43 (which refers to Section 40, 41 and 42), was also to refer to the proposed Section 42A. This paragraph must have been drafted before the last sub-para of para 16.67 was included, which clearly stated: "After considerable discussion, we have decided not to recommend any such change" (in Section 42A). After the above sub-para of para 16.67, the Commission ought to have deleted para 16.71 for it is no longer necessary to include Section 42A in the list of sections referred to in Section 43.

Therefore, no change is necessary in Section 43.

In fact, para 16.95, 16.97, 16.145 have not unfortunately chosen to delete reference to Section 42A proposed Section 43A of the 69th Report. This section was proposed in the 69th Report (see paras 16.72 and 16.73) for treating as relevant the summary of pleadings in an earlier judgment. The recommendation was based upon the suggestion of the Civil Justice Committee (pp. 497-501, ch. 42, para 2.3) to make summary of pleadings relevant so as to get over the judgment of the Madras High Court in Tripurna Seethapati Rao Dora v. Rokkam Venkanna Dora (citation not given):

Order 20 R4 of the Code of Civil Procedure requires a concise statement of the case to be given in the judgment and this usually takes the form of a summary of the pleadings. The Committee said: "it is difficult to see why such recitals cannot be treated as coming within the purview of Section 35 (Relevancy of entry is public record, made in performance of duty)."

We find (see u/s 35 in Sarkar, 15th Ed, p. 788-789) that the Calcutta High Court did hold such a summary of pleading relevant: "when the decree in a former suit of 1818 against the defendants' predecessor-in-title contained an abstract of the pleadings in the case, the abstract was admitted to rely on an admission made by the defendant's predecessor-in-title (Parbutty v. Purna, ILR 9 Cal 586 followed in Bhaya v. Pande, 3 Cal LJ 521; Thama v. Kondan, ILR 15 Mad 378.

A statement amounting to an admission by the predecessor-in-title of the opposite party, contained in a judgment, is evidence u/s 35 according to Krishnaswami v. Rajagopala, ILR 18 Mad 78. This was followed in Bihar Board v. Madan, AIR 199 Pat 23. The Privy Council observed in Collector of Gorakhpur v. Ram Sundar, AIR 1934 PC 157 (which we have quoted u/s 13) that "there is much to be said for this view of Section 35". This view was followed in Ramaswami v. Subbaraya, AIR 1948 Mad 388 and in Chandulal v. Pushkar, AIR 1952 Nag 271.

In the light of the above law, after the judgment in Tripurna Seethapathi Rao's case, we are of the view that there is no need to have a separate Section 43A to make summary of pleadings contained in an earlier judgment relevant. The summary prepared by the court is relevant u/s 35, as part of a public record. In the 69th Report, in paras 16.72 and 16.73, the above change in the case law and the observation of the Privy Council were not noticed. We, therefore, do not think that Section 43A as proposed in the 69th Report, is necessary.



Review of the Indian Evidence Act, 1872 Back




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