Report No. 69
II. Scope and Effect of Judicial Notice
21.15. Nature of judicial notice-as distinct from conclusive proof.-
It may be stated that judicial notice is quite distinct from conclusive proof. When one fact is made to be conclusive proof of another, then it cannot be rebutted. But when a fact is judicially noticed, evidence contradicting it is not ruled out, at least according to the better view. Discussing this aspect in some detail, E.M. Morgan wrote1-
"If taking judicial notice of a matter means that it is indisputable, it must follow that no evidence to the contrary is admissible. If evidence to the contrary of what is judicially noticed is admissible, it must follow that the basis of judicial Notice is not the prohibition against presenting moot issues, and against maintaining a claim or defence on a false issue; its basis must be only convenience in trial, and the applicable considerations must be almost identical with those governing the allocation of the burden of proof."
1. E.M. Morgan Judicial Notice, (1944) 57 Harvard Law Review 269, 279, 280.
21.16. After expressing this view, Morgan examined the American authorities on the subject-
"What say the authorities? Certainly the learned Dean Wigmore and his famous predecessor and preceptor, Thayer, leave no doubt as to their views. The latter (Thayer) says specifically that taking judicial notice 'does not import that the matter is indisputable';1 and the former (Wigmore)2 declares: 'That a matter is judicially noticed means merely that it is taken as true without the offering of evidence by the party who should ordinarily have done so But the opponent is not prevented from disputing the matter by evidence, if he believes it disputable'". organ then added-
"Judicial expressions to the same effect can be found. For example, Mr. Justice Graves, speaking for the majority of the Supreme Court of Missouri, said:
"Judicially noticing facts, like many presumptions entertained by the courts, is but a rule of evidence, and if the question is a disputable one, or can be disputed, evidence so disputing it is competent and should be admitted".3
"Some courts, however, have insisted that when a matter is in the domain of judicial notice, it is outside the domain of dispute by evidence. Witness the Supreme Court of Errors of Connecticut: "Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts, it is therefore superior to evidence"4.
1. Thayer A Preliminary Treatise on Evidence at the Common Law, (1898) 308.
2. Wigmore Evidence, 3rd End., 1940, section 2567.
3. Timson v. Manufacturers Coal and Coke Co., (1909) 220 Mo 580: 119 SW 565 (569).
4. Beardsley v. Irving, (1909) 81 Conn 489 (491): 71 Atl 580 (581).
21.17. Conclusion.-
We have given attention to what Morgan has said, and we are of the opinion that the former view is correct, namely, judicial notice of a fact does not necessarily rule out the tendering of evidence on the same subject. Section 57 also could be so construed, there being no express or implied provision to the contrary in that section. On this point, therefore, an amendment is not considered necessary.
21.18. Position in England.-
In England, the question whether judicial notice is "evidence", has been debated.1 The Court of Appeal, speaking through the Lord Chief Justice, (Lord Goddard) expressed the opinion in Davey v. Harrow Corporation, (1957) 2 WLR 941 (944): 91957) 2 All ER 305, that judicial notice may be taken of a practice of the Ordnance Survey. In that case, the plaintiff, who sued for damages for nuisance and an injunction in respect of encroachments on his premises by the roots of trees standing on adjoining land, failed in the Queen's Bench Division, it being held that the trees were not on the property of the defendants; but further evidence was allowed in the Court of Appeal, where the appellant was successful.
The reserved judgment of the Appellate Court was primarily concerned with recognition of the tort of nuisance in relation to natural growth; but, on the question of ownership of the trees, the court considered various conveyances, which described the parcels by reference to the ordnance survey, as well as the evidence of an officer from the Survey office. The court expressed the view that, in future, judicial notice might be taken of the official practice by which, where a boundary hedge is delineated on an Ordnance Survey map by a line, the line indicates the centre of the existing hedge.
1. Nokes Judicial Notice, (1958) 74 LQR 59, 60.
21.19. In the words of Lord Goddard, "courts in future can take notice of this practice of the Ordnance Survey as at least prima facie evidence of what a line on tile map indicates". This dictum seems to assume-(a) that judicial notice can be equated with evidence, and (b) that a matter judicially noticed is rebuttable by evidence. As to (a), he is presumably referring to the probative effect of the facts noticed.
21.20. Stephen's view and other authors1 regarded judicial notice as a form of proof, and, even though he changed the heading of the chapter in his Digest, on judicial notice, still refers to "facts proved otherwise than by evidence". "Judicial notice" has been included as a mode of proof by other authors2 and the usage is unobjectionable, so long as "proof" is understood in a wider "proof" may be used, the phrase "judicial notice" does not include evidence.
1. Stephen's Digest of the law of Evidence, (1948), p. 81. As to the change, see Thayer Judicial Notice and the Law of Evidence, 1890 (3) Harvard Law Review 285, 288; A Preliminary Treatise on Evidence (1898) 279.
2. E.g. Morgan Some Problems of Proof under the Anglo-System, (1950), p. 36.
21.21. Section 56.-
We shall now come to the sections proper which deal with judicial notice. Section 56 provides that no fact of which the court will take judicial notice, need be proved. This is an introductory provision, needing no chan
III. Section 57-Importance
21.22. List in section 57 not exhaustive.-
Section 57 lists certain facts of which judicial notice has to be taken. The list of matters made judicially noticeable by section 57 is not exhaustive. It may be, doubted whether an absolutely complete list could be formed, as it is practically impossible to enumerate everything; which is so notorious in itself or so distinctly recorded by public authority, that it could be superfluous to prove it.
21.23. Orissa case as to riots.-
Thus, in one Orissa case1, a suit was filed by the consignor for the recovery of the price of goods lost in transit while in the custody of the Railway Administration. The Orissa High Court held that it could take judicial notice of the riots and disturbances that took place in several parts of the Andhra territory consequent on the fast and death of Poti Shrinamulu it connection with the formation of Andhra State. But the High Court further held that the Railway was not absolved from liability in the absence of proof that the wagon in which the consignment was kept was looted by the mob.
1. Union of India v. Natabarlal, AIR 1963 Ori 66 (68) (DB).
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