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Report No. 69

Chapter 16


Section 40

16.1. Introductory.-

We shall now proceed to consider the provisions relating to judgments. These are contained in sections 40 to 44.

16.2. Basic principles.-

The basic principles underlying these sections are as follows:

(1) It is a matter of public policy that subject to statutory rights of appeal and the like, the judgments of a competent court of law, acting within the scope of its jurisdiction, should be final and conclusive as between the parties concerned.1

(2) A judgment, besides being conclusive, may bar fresh proceedings on the same matter2.

(3) While the first proposition is concerned with the parties, certain types of judgments which pronounce upon status are conclusive against all persons3. Briefly, these are judgments in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction.

(4) Other judgments, orders and decrees relating to matters of public nature are admissible, but they are not conclusive proof of what they state4.

(5) In other cases, the judgments, orders and decrees are inadmissible5, except where the existence of such judgment, order or decrees is a fact in issue or is relevant under some other specific provision of the Evidence Act6. As regards the "other provisions" of the Act, the provision most often discussed in this context is section 13 of the Evidence Act, but that is also confined to "transactions" showing the exercise of a right and the like.

(6) Certain vitiating factors can, however, be proved to destroy the effect of judgments which are conclusive or relevant7.

1. Section 11, Code of Civil Procedure, 1908.

2. Section 40, Evidence Act.

3. Section 41, Evidence Act.

4. Section 42, Evidence Act.

5. Section 43, Evidence Act, earlier half.

6. Section 43, Evidence Act, later half.

7. Section 44, Evidence Act.

16.3. Section 40.-

We shall now discuss the individual sections in this group. Under section 40-

"The existence of any judgment, order or decree which by law prevents any Court from taking cognisance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognisance of such suit, or to hold such trial."

16.4. Two-fold application of section 40.-

The section has a two-fold application. In civil cases, it becomes applicable usually when a specific statutory Provision precludes the Court from trying a suit. This could be for a variety of reasons, e.g.-res judicata, and numerous procedural provisions in the Code of 2ivil Procedure relatable to previous judgments. In criminal cases, the pleas of previous conviction, previous acquittal, and other pleas in bar, contained in the :ode of Criminal Procedure or Special Acts, may bring the section into play.

16.5. Issue estoppel in criminal cases.-

It may be noted that even in criminal cases there may be judgments which bar the trial not of the whole case, but of a particular issue, known as issue estoppel.

16.6. Section 40-"holding a trial"-Trial of issues.-

The principle of the section does not need further comments, and we shall now proceed to deal with a point of detail. While providing that the existence of any judgment, order or decree, which, by law, prevents any court 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, section 40 does not, in terms, deal with the case where a subsequent court, though not precluded from trying a suit, is precluded from trying a particular issue. But, obviously, the section should be construed widely, so as to cover such cases also.

The section has to be read along with the provisions relating to res judicata, as embodied in the Code of Civil Procedure1 and other provisions where relevant. That Code bars the trial, not only of suits, but also of issues which have been previously decided between the same parties. We have also referred above to "issue stoppel" in criminal cases.2

1. Section 11 Code of civil Procedure, 1908.

2. See Discussion as to "issue estoppel", supra.

16.7 to 16.11. In view of what is stated above, it appears desirable to make the language of section 40 clear on this point, by providing that "suit" and "trial" in the section include part of a trial or part of a suit. In Gujju Lal v Patel: Lal, 1880 ILR 6 Cal 171 (190), varth C.J. gave an extended meaning to the words "holding a trial", and made these observations: "But I cannot doubt that it was intended to include all judgments which by law operate to prevent a court, whether civil or criminal from taking cognizance of suit or trying any particular issue.

The words "holding a trial" are amply large to admit of this construction " At the same time, he criticised the language of the section in these words: "It is true, that section 40 might have been clearly worded1. It has, in fact, much the same defect as section 2 of Act VIII of 1859, which was pointed out by the Privy Council in the case of Soorjo Monee v. Saddanund, 12 BLR 304 (PC).

1. Emphasis added.

16.12. Recommendation.-

In view of this judicial criticism of the language of the section it is desirable that the section should be widened by suitable amendment on the above point. Accordingly, we recommend that section 40 should be suitably revised. The following is a rough redraft.

Revised section 40

The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or issue or holding a trial or determining a question, is a relevant fact when the question is whether such Court ought to take coenizance of such suit or issue, or to hold such trial or determine such question, as the case may be."

Indian Evidence Act, 1872 Back

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