Report No. 69

Section 43

16.68. Introductory.-

Under 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."

16.69. General exclusionary rule.-

This section can be said to incorporate a general exclusionary rule in regard to judgments. If a judgment, order or decree, is not relevant either under the group of sections immediately preceding or under some other provision, and is not a fact in issue, it is not admissible. That is the general rule.

16.70. Judgments relevant under other laws, judgment against person entitled to indemnity.-

It should, of course, be noted that a judgement may become relevant by reason of the provisions of some other law. For example, there is the question of judgments relevant to an agreement of indemnity. When A gives an indemnity in favour of B, and a judgment has been obtained against A, that judgment would not be rendered relevant by sections 40 to 42 to prove the wrong. committed by A. Bust, it should be noted that under the Indian Contract Act,1 the promise, in a contract of indemnity, acting within his authority, is entitled

To recover, from the promisor, the damages which he may be compelled to pay, etc. To view of the wide language of this section of the Contract Act, the position substantially is this, that the judgment becomes relevant, even though not between the same parties, if A has been compelled to pay. As to contracts of guarantee, see section 126 of the Contract Act,2 and for joint and several promisee, compare section 43 of that Act.

1 Section 125, Indian Contract Act, 1872.

2. Section 126 read with section 128.

16.71. Recommendation.-

The only change required in section 43 is a consequential on.- the insertion of a reference to the new section1 which we have recommended to be inserted in regard to judgments of previous conviction.

1. Section 42A (proposed).

Section 43A (New)

Summary of Pleadings in Judgment

16.72. Summary of pleadings in judgment.-

We may now refer to a suggestion made by the Civil Justice Committee1. relating to the summary of pleadings contained in the judgement. The Civil Justice Committee said--

"Section 35 relates to the relevancy of any entry in the public record in the performance of a duty. In a decision reported in Tripurna Seethapatti Rao Dora v. Rakkan Venkanna Dora the Madras High Court held that the summary of pleadings given in a judgment is not relevant evidence as to the content of these pleadings. The pleadings in old suits are often not available, and the only evidence available to prove their contents is, not infrequently, the recitals thereof in the judgments in such suits. Such recitals are entries in public records relating to a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty.

Rule 4 of Order 20 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. It is difficult to see why such recitals cannot be treated as coming within the purview of section 35. Even if they are not covered by section 35 as it stands, it should be made to embrace them. Otherwise, valuable evidence of a reliable character will be lost, letting open the door for perjured testimony. The possibility of the summary being not altogether accurate affects its weight and not its admissibility."

1. Civil Justice Committee, Report, pp. 497-501, Chapter 42, paras..-3.

16.73. Recommendation.-

We agree with this reasoning, in substance, and are of the view that the law should be amended as above but only in regard to summaries of pleadings. We would prefer to put it in a new section-say, section 43A,-and re-commend that a new section should be inserted as follows:

"443A. The summary of pleadings in a judgment is relevant to prove the gist of the pleadings or other documents, unless the pleadings are part of the record in the proceeding in which the judgment is tendered in evidence."