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RELEVANCY OF JUDGMENTS OF COURTS OF JUSTICE

(SECTION 40 – 44)

SECTION 40 – PREVIOUS JUDGMENTS RELEVANT TO BAR A SECOND SUIT OR

TRIAL.

PRINCIPLE
 Section 40 incorporates the principle of res judicata i.e. a judgment would be relevant in
every case where it has the effect of res judicata.
 Thus, the principle is that once the issue is tried and determined by a civil or criminal
court, the same cannot be reopened between the same parties to such an adjudication or
their privies.
 No one should be harassed twice, if it is clear to the Court that the case is for the same
issue which has been already been decided by a competent court.

RES JUDICATA
 Section 11 of the Civil Procedure Code lays down the provision for res judicata.
 ‘Res’ means a particular matter and ‘Judicata’ means judicial decision on the merits of
the case.
 Therefore, Res Judicata means the decision of a Court on the merits of the case.
 It applies as a bar on any future litigation or case on the same issue which has been
previously decided by the Civil Court.

OBJECT
 To prevent multiplicity of suits and interminable disputes between parties.
 To give finality to judicial decisions.
 To achieve finality in litigation.
 To prevent litigation on the same issue in the future.

APPLICABILITY
S.40 applies to the following:
 Civil Cases.
 Criminal Cases.

CIVIL CASES
In the following conditions the earlier judgment in a Civil Suit will be relevant to have an effect
of preventing the Court from taking cognizance of the case:
 Cause of action agitated before a Civil Court; and
 Between the same parties; and
 Such case is decided.
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Then no new action can be brought on the same cause of action and between the same parties
and if the plaintiff purposes to trouble the defendant again with the same cause of action, the
earlier judgment will be relevant because it will have the effect of preventing the Court from
taking cognizance of the case.

CRIMINAL CASES
The same principle applies to criminal proceeding also, in order to prove its applicability the
following shall be proved:
 The person should have been once tried for an offence rising out of a particular set of
circumstances; and
 He must have been acquitted or convicted.
Then he cannot be tried again for the same offence and it will be a complete defence for him to
show that he has already been acquitted or convicted of the said offence.
Thus the judgment recording his conviction or acquittal would relevant in case he is tried again
for the same offence, arising out of the same set of circumstances.

SIMULTANEOUS CIVIL & CRIMINAL PROCEEDINGS ON THE SAME CAUSE

 Both Civil and Criminal proceedings instituted on the same cause of action would not
render either one of them to be infructuous under section 40 or under the principle of res
judicata.
 The judgment of a Criminal Court does not operate as res judicata to prevent a Civil
Court from determining a question for purpose of a Suit.
 Similarly, a judgment of a Civil Court would not bar Criminal Prosecution, for proving
the guilt or the innocence of the accused.
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SECTION 41 – RELEVANCY OF CERTAIN JUDGMENTS IN PROBATE, ETC,

JURISDICTION.

PRINCIPLE
 Section 41 speaks about the judgment in rem i.e. against the whole world.
 A judgment in rem would always be admissible, irrespective whether they are inter
parties or not.
 Section 41 forms an exception to the general rule that a judgment is conclusive against
the parties or their privies.
 It further directs that it would be binding only when a final judgment is rendered.
 Rendition (Rendering) of a final judgment would be binding on the whole world being
conclusive in nature.
 As when such a judgment is rendered in one proceeding, subject to the admissibility, it
may be produced in another proceeding.

CONDITIONS FOR ATTRACTING S.41

For attracting Section 41, the judgment must be:
i. Must be of a competent Court; and
ii. In exercise of:
a. Probate jurisdiction.
b. Matrimonial jurisdiction.
c. Insolvency jurisdiction.
d. Admiralty jurisdiction.
iii. It must confer or take away from any person any legal character; or
iv. Declare any person to be entitled to any such character; or
v. To be entitled to a specific thing, not against specified persons but absolutely.

JUDGMENTS IN REM
 Judgments for the purpose of relevancy are of two kinds:
1. Judgment in Rem.
2. Judgment in Personam.
 A Judgement in Rem is a kind of declaration about the legal character/ status of a person
(for e.g. that he is insolvent ), effective against every body whether he was a party to the
proceeding or not.
 It is a conclusive evidence against all.
 Conditions for impeachment of a judgment in rem:
1. That the Court had no jurisdiction; or
2. That the judgment was obtained by fraud or collusion; or
3. That it was not given on the merits; or
4. That it was not final. e.g. interlocutory.
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PROBATE JURISDICTION
 It means a Court having the jurisdiction under the Indian Succession Act, 1925 to
pronounce upon the genuineness of a deceased person’s Will.
 It acts as a conclusive evidence regarding the contents of the Will and the rights of the
person affected by such Will.
 A judgement of a Court in Probate is in rem and binds all the world.
 For instance, a grant of probate in favor of X will be conclusive evidence of the fact that
as long as the judgment remained in force, X was the executor of P’s will.
 The grant of probate cannot be set aside, unless it is proved by the person challenging it
on the ground of fraud or collusion, to the satisfaction of the Court.
 However, the Court acting under Probate jurisdiction has no power to decide whether a
document was forged or not under the Penal laws.

MATRIMONIAL JURISDICTION
 The matrimonial jurisdiction is conferred on the Courts by the following Acts:
 The Hindu Marriage Act, 1955.
 The Special Marriage Act, 1954.
 The Dissolution of Muslim Marriage Act, 1939.
 The Parsi Marriage and Divorce Act, 1936
 The following disputes/issues lie before the Court having matrimonial jurisdiction:
 Divorce decree.
 Nullity of marriage.
 Judicial separation.
 Restitution of conjugal rights.
 A judgment relating to a person, whether he is married or divorced, is judgment in rem.
 A decree of nullity of marriage has the same effect.
 However, the decree of restitution of conjugal rights is not considered as a judgment in
rem.

ADMIRALTY JURISDICTION
 Admiralty jurisdiction decides cases arising out of war claims.
 It is conferred on the High Courts under the Letter Patent.
 A judgment by such Court acting under Admiralty jurisdiction only applies in rem when
the Court emphatically stated that all the authorities concerned shall be bound by the
order.
 For e.g. a decision of the Prize Court, that a particular ship was neutral or a Cargo was
contraband, is a judgment in rem.

INSOLVENCY JURISDICTION
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 A judgment by the Court acting under Insolvency Jurisdiction, adjudicating a particular

person to be insolvent or that he is discharged from insolvency or the annulment of his
insolvency, is a judgment in rem.
 Such judgment is conclusive against everybody.
 Illustration – A debtor was adjudged as insolvent on application by one of the Creditors. It was
held that it was not open to any other person to challenge the adjudication on the ground that the
debt owing to the creditor on whose application the debtor was adjudicated insolvent was not
genuine. The adjudication being a judgment in rem.
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SECTION 42 – RELEVANCY AND EFFECT OF JUDGMENTS, ORDERS AND

DECREES OTHER THAN THOSE MENTIONED IN S.41.

PRINCIPLE AND SCOPE

 Judgments relating to matters of public nature are declared to be relevant in other
judgements, whether decided between the same parties or not.
 However, such judgments are merely relevant and not a conclusive proof.
 This section admits all judgments involving public matters not as res judicata, but as
evidence which has to be corroborated further.

MATTER OF PUBLIC NATURE

 The following are included under phrase ‘public nature’:
 Customs;
 Tolls;
 Boundaries;
 Rights of ferries;
 Liability to repair roads; etc.
 These are matters where not merely some individuals are involved but larger public
interest is under consideration.

RELEVANCY OF JUDGMENTS
 Such judgments are relevant to every case or proceedings in which a matter concerning
such public interest is again in question.
 It shall not be a conclusive proof,
 Thus, the party effected by it may lead evidence to the contrary and the show that all the
information was not presented before the Court when the previous judgment was
pronounced.
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SECTION 43 – JUDGMENTS, ETC. OTHER THAN THOSE MENTIONED IN S. 40, 41

& 42, WHEN RELEVANT

PRINCIPLE
 S.43 contemplates that Evidence can be given of a judgment which is itself a fact in issue
or a relevant fact.
 For e.g. if a person is murdered in consequence of a judgment, the judgment being a
cause or motive of the murder, will be relevant fact u/s. 7 & 8.
 A judgment may be relevant for showing the state of mind, it may be useful for
overthrowing the defence of accident etc.

JUDGMENT IN CRIMINAL CASES

 A judgment in a criminal case cannot be received in a Civil action to establish the truth of
the facts upon which it is rendered.
 A judgment in a criminal case is only relevant to show that there was a trial which
resulted in the conviction of the accused.
 A decision of a criminal court merely holds the field of proof by corroboration in a Civil
Suit.
 Illustration – When a person was convicted by a Criminal Court u/s. 304 of IPC for causing
bodily injuries to his adoptive father who ultimately died of the injuries, it was held that in the
subsequent proceedings for succession, the judgment of the Criminal Court is only relevant to
show that there was a trial, resulting in conviction, but it is not evidence on the fact that the
person was the murderer, that the Civil Court has to determine on evidence whether the offence
falls u/s. 304 or not.

JUDGMENT IN CIVIL CASES

 A judgment in a Civil Court holding that a will was forged is not relevant under section
43 in a criminal case for the offence of forgery.
 An earlier judgment in an eviction case which was not inter parties is not admissible
beyond the point to prove that there had been a litigation between the plaintiff with
another tenant for eviction from the premises.
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SECTION 44 – FRAUD OR COLLUSION IN OBTAINING JUDGMENT, OR

INCOMPETENCY OF COURT, MAY BE PROVED.

APPLICABILITY
The S.44 applies to the following:
 Civil proceedings.
 Criminal proceedings.
 Section 40, 41 and 42.
*It does not apply to Section 43.

GROUNDS TO CHALLENGE THE JUDGMENT

1. The judgment is delivered by a Court of Incompetent Jurisdiction; or
2. It was obtained by fraud; or
3. It was obtained by collusion.

EFFECT OF JUDGMENT BARRED BY S. 44

 Such judgments do not have the effect of res judicata.
 S.40, 41 & 42 would not apply on judgment which is barred by S.44.

‘COURT NOT COMPETENT TO DELIVER IT’

 If the court had no jurisdiction to try the matter, any judgment delivered in furtherance of
the same would be inadmissible.
 ‘Competency’ and ‘Jurisdiction’ are synonymous terms.
 It is a fundamental principle that a decree passed by a Court without jurisdiction is a
nullity.
 Such judgment may be impeached on the ground of want of jurisdiction.

FRAUD OR COLLUSION
 Fraud is an extremely collateral act which vitiates the most solemn proceedings of courts
of justice.
 Fraud can be exercised by withholding vital facts from the Court.
 Fraud may be defined as an act of deliberate deception with the design of securing some
unfair or undeserved benefit by taking undue advantage of another.
 Collusion in relation to a judicial proceeding is a secret agreement between two or more
persons that one should institute a suit against the other in order to obtain the decision of
a judicial tribunal or Court for sinister purpose.