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Report No. 69

Section 42

16.38. Introduction.-

Section 42 provides that 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 judgements, orders or decrees are not conclusive proof of that which they state.

16.39. This section also forms an exception to the general rule that no one shall be affected or prejudiced by a judgment to which he is not party or privy. The reason for the exception is that in matters of public right, the new party to the second proceeding, as one of the public, has been virtually a party to the former proceeding.1

1. Gujju v. Fatteh, 1880 ILR 6 Cal 171 (183), (per Pontifex, J.)

16.40. Exception.-

The general rule is that judgments are not evidence against strangers. Discussing the exception to this general rule, Taylor says1 "The one exception, that judgments are not evidence against strangers, which has just been referred to, arises in the case of adjudication upon subject of a public nature2, like customs3, prescriptions4, tolls5, boundaries between parishes, counties or manors6, rights of ferry7, liabilities to repair roads8 or sea walls9, moduses'10, admissible, adjudications,-which for this purpose are regarded as a species of those who litigate the first, or be under strangers.".11

"If the litigants in the second suit be strangers to the parties in the first, the judgment, however, will not be conclusive."

1. Taylor, cited in Field on Evidence, p. 2274.

2. Mulholland v. Killen, 1874 IR 9 Ed 471.

3. Reed v. Jackson, (1881) 1 East 357; Berry v. Banner, 1792 Peake R 156.

4. Id.

5. B.N.P. 233.

6. Brisco v. Lome, (1838) 3 M&P 308; Evana v. Reas, (1839) 10 A&E 151.

7. Pim v. Currel, (1840) 6 M&W 234; Hemohill v. M'Kenna, (1845) 8 ILR 43.

8. R. v. St. Pancras, 1794 Peake R 220; R. v. Naughton, (1853) 22 LI' MC 89.

9. R. v. Leigh, (1840) 10 A&E 398.

10. Croughton v. Blake, (1843) 13 LJ Exch 78.

11. Reed v. Jackson, (1801) 1 East 357; Croughton v. Blake, 1843 IJ Exch 78.

16.41. Decree framing a scheme under section 92, C.P.C, if a judgment in rem.-

Some misconception seems to prevail as to the effect of a decree framing a scheme under section 92 of the Code of Civil Procedure.

16.43. It is sometimes state.- as was done in a Madras case that the decree in the scheme suit is, or has the effect of, a judgment in rein, and it prevents any one, whether a party to the suit in which the decree was passed or not, from asserting any rights vested in him which conflict with or attack the scheme1.

1. Hassanullah Khan v. Royan Mosque Trust Board, AIR 1948 Mad 134 (135), paras. 7 and 12 (Gentle, C.J.).

16.44. In Allahabad case also,1 it was stated that the judgment is one in rem. But, strictly speaking, this is not appropriate.

1. Sunni Central Board of Wakf v. Sirajul, AIR 1954 All 38.

16.45. Section 41 gives conclusive effect to a judgment of competent court only in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction. A judgment passed in a suit under section 92, C.P.C., is not a judgment in the exercise of any such jurisdiction, and is not covered by section 41. Having so observed, Desai J. in an Allahabad case1, stated that it may be relevant, but "it will not have conclusive effect." He also said, in the course of the discussion, that it is a judgment in rem.

1. Anjuman Islamia v. Latafat Ali, AIR 1950 All 109 (118, 119) (per Desai, J.)

16.46. But, with respect, such a view is not accurate. The true position is that the suit contemplated by section 92 is a representative suit, that is, a suit Which is prosecuted by individuals not for their own interest, but as representatives of the general public1, in order to secure a proper administration of a public trust2.

1. (a) Anand Rao v. Ramdas, AIR 1921 PC 123;

(b) Gopu v. Rajammal, (1922) 43 Mad LJ 448: AIR 1922 Mad 394.

2. (a) Shah Phan Begum (Mst.) v. Ibn. Ali, AIR 1945 All 69;

(b) Bapugonda v. Vinayak Sadashiv, AIR 1941 Born 317;

(c) Indu Bhushan v. Kiran Chandra, AIR 1940 Cl 376.

16.47. Effect of judgment under section 92-True view.-

The decree will operate as res judicata under section 11, Explanation VI, of the Code of Civil Procedure1. Explaining the scope of the plea of res judicata under section 92, the Supreme Court has held2 that a decree in a suit under section 92 will operate as res judicata on all persons who have the same interest as the plaintiffs. Persons who claimed a right in themselves, to the exclusion of other classes, will not be bound by the decision, since they do not belong to the class of persons represented in the suit under section 92.

The above discussion does not disclose any need for amending section 42.

No change needed.-The above discussion does not disclose any need for amending section 42.

1. (a) Abdur Rahim v. Mahomed Bar/cat Ali, AIR 1928 PC 16;

(b) Dinsha v. Jamesetji, 1909 ILR 33 Born 509 (526-531) (Davar, J.), 562-568 (Beaman, J.

(c) Chiranji Lal v. Life Insurance Corporation, AIR 1959 Born 396 (400), para. 8.

2. Ahmed Adam v. M.E. Makhari, AIR 1964 SC 107.

Section 42A (Proposed to be Added)-relevancy of Previous Conviction in Civil Cases

16.48. We shall now consider a topic not dealt with in the existing sections of the Act. It relates to the relevancy, in civil cases, of previous convictions. There being no specific provision on the subject in the Act, it will be useful to have a look at the common law.



Indian Evidence Act, 1872 Back




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