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Section 40 of the Indian Evidence Act

The verdict of a court would usually be in favor of one party and against the other party. In such a situation, the side which feels that the judgment does not meet its expectations, such party would move to the higher court with the case. This would be a cycle where all the parties will move to a higher court if they are not satisfied with the judgment.

Such a scenario cannot be allowed as it would be hampering the working of the judiciary and such parties which actually need the assistance of the judiciary would not have any remedy to them. Hence the evidence act has Section 40 which provides finality to a judgment and protects the judiciary from the multiplicity of litigation. In the current assignment, the author will dwell into Section 40 of the Indian Evidence Act and discuss the principle of Res Judicata and other similar principles.

What is a judgment?

A judgment, as defined by the Code of Civil Procedure [hereafter CPC], is a decision given by the judges of a court regarding the rights, duties, and liabilities of the parties involved in the dispute. It is based on the facts and laws relating to the case and not the decision of other courts.

There are two types of judgments:
  1. Judgment in rem and
  2. Judgment in personam
A judgment of the civil court would not have any relevance to the judgment of a criminal court, even if it arises out of a case of the same facts. The previous judgment would not be relevant in the subsequent case, importance will be given to the appreciation of the facts of the current case. The current assignment is based on a similar question, of whether a previous judgment will act as a bar to hear a subsequent petition before another court.

Chapter II of the Indian Evidence Act, 1872

Section 40-44 of the Indian Evidence Act [hereafter the Act] deliberates upon the relevance of judgments of the court. It is a well-known fact that the provisions regarding Judgment are dealt with in CPC as well, then why is there a need to discuss that same under the Act. Sir James Stephen, an English advocate and the person responsible for the Act, while addressing the critics of the provisions relating to judgments in the Act, stated that the Indian Evidence Act would be different from the English understanding.

This is because the English writers have constituted the entire law of evidence together. But in the case of the Indian Evidence Act, the law is so drafted that it will contain only the substantive portion of the law. The Code of Civil Procedure [hereafter CPC] and the Code of Criminal Procedure [hereafter Cr. PC] deal with the procedural aspect of the evidence law.

Section 40-44 of the Act deals with judgments to the extent that they provided for the cases in which the fact that a court has decided as to a given matter of fact relevant to the issue may be proved for the purpose of showing that the fact exists. In the current assignment, we will be understanding Section 40 of the Act.

About the Section
The judgments, order, and decrees which Section 40 talks about have the effect of barring multiple suits on the same case. This section is essential to establish Lis Pendens or Res Judicata, i.e. bar on a second suit or trial. Section 40 restricts itself to the admissibility of judgments and does not deal with the questions of evidence[1].

It is based on two Latin maxims, they are:
  1. Nemo Debet Bis Vexari Pro Una Et Eadem Causa which means that no one can be vexed more than once for the same offense. It is based on the principle of private justice.
  2. Interest Republicae Sit Finis Litium which means that having an end to litigation is in the best interest of the state. It is based on public policy and aims at the suits not being protracted[2].

The Apex Court in Indian Council for Enviro-Legal Action vs UOI[3], has stated that “The maxim ‘interest Republicae ut sit finis litium’ says that it is for the public good that there be an end of litigation after a long hierarchy of appeals…Opening the door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights. ” The maxim ensures that the principle of:
  1. Private convenience:
    which states that a person should not be vexed twice for the same cause.
     
  2. Public policy:
    that it is in the best interests of peace and harmony of a State and its people is followed and the finality of litigation[4] can be ensured.
This section will be applicable where the court has jurisdiction to decide upon the matter and one of the parties to the case points out that the case shouldn’t be heard by the court, because it has already been decided[5].

Case of Shrinivas Krishnarao Kango vs Narayan Devji Kango[6]

The case dealt with a Hindu Undivided Family business, where Mr. Siddopant and Mr. Krishnarao were member. After the death of Krishnarao in 1897, Siddopant in 1899 and Gundo (Siddopant’s son) in 1901, a dispute arose in the family over the family property.

When the case went to court, the plaintiff contested that the adopted son of Lakshmibai (wife of Gundo) was an issue and the court should adjudge it, and not allocate any share of the property before that. The court held that a court had already decided upon this matter and hence the court in the current case need not dwell into this issue of the case.

Understanding Section 40 in Civil cases

The Apex Court in Satyadhyan vs Deorajin Debi[7] has observed that Res Judicata ensures that finality is provided through judicial decisions. It provides that once res is judicata, then it shall not be adjudged again. The principle of Res Judicata is imbibed in Section 11 of CPC, which ensures that finality is provided to the litigation.

Res Judicata facilitates the judgment of the original court to stand, and even if future litigation on the same takes place, the higher court shall proceed on the basis of the previous decision only. Section 11 of CPC cannot be applied on all cases of estoppel by judgment[8], and hence the court has to apply the principles of Res Judicata to reach finality in litigation. If the issue presented before the higher court has already been decided by the lower court in the previous suit then such a person[9] or government[10] is barred by Res Judicata.

Finding of fact by Court
If a court arrives at a fact through an evidence, then when the case goes into an appeal or review, the higher court will not be obligated to accept such an evidence, even if it does so, such an evidence will carry little weight before the court[11]. Such a finding must be material in nature and should support the precise or the ground on the basis of which the decree was made[12]. If there is a finding in the previous suit inter partes, then that would not function as Res Judicata, but the party against whom that finding exists, need to displace the same.

Whether or not an adverse finding against a successful party acts as Res Judicata, depends on the right to appeal against the finding[13]. Unless the finding by the court is implied in the decree and it prejudices the party intending to an appeal, the party will be barred by Res Judicata[14].

Parties which are not a part or privy to the proceedings are res inter alios judicata, i.e. the operative part of the judgment is not binding on these parties[15].

Understanding Section 40 in Criminal cases

Even before the Independence, Privy Council had held the principle of Res Judicata applicable to the criminal proceedings[16]. The principle of section 40 is applicable on criminal courts too, where the plea of autrefois convict or autre fois acquit, has been held up. The Section 403 of the Cr.P.C provides an option to the court whether to hear the parties or not to.

If a particular incidence is a result of two offenses, for which there are two different trials and the object of the two cases are different, then acquittal in one of the cases does not bar the conviction in another case, because the judgment or the reasoning of the judgment cannot constitute as an evidence in the other case[17].

Subsequently Allahabad High Court[18] while addressing a similar issue stated that neither the reason for acquittal nor the evidence on record is relevant for the decision in a subsequent case. The court stated that the earlier judgment can be admissible if it satisfies the condition under Section 40 and 43 of the Evidence Act, only to the extent to show the parties and the decision, not for the purpose of appreciation of evidence.

Nature of a prior judgment
The courts have acknowledged the possibility of conflicting decisions in the civil and criminal courts. The law in such a situation has been modelled to accommodate and give equal value to both the judgments and not enforce one of them binding over the other or even relevant, except for determining minor facts depending on the situation[19].

Whether a Criminal Court judgment will be binding on a Civil Court

The judgment of a Criminal Court, does not operate as Res Judicata, i.e. it cannot restrict a Civil Court from deciding upon the issue before it[20]. The judgment of a Criminal Case will not be binding in a civil action[21], it can be used as a proof for corroboration[22], for example, in a case before the Sales Tax Department, the judgment of the Criminal Court was admissible before the authority but it did not debar them from assessing the concerned person[23].

The judgment of the Criminal Court inter partes is inadmissible as evidence in the Civil Court, even if the facts of the case are the same. This is because the two parties can present different evidence in different trials and the standard of proceeding under the two trials are different, the criminal court judgment would be used to the extent to show that there was a trial which resulted in the conviction of the sentence of the said accused person[24].

The finding of fact by a criminal court is not relevant in the civil court, the civil court will have to come to its own conclusion based on the evidence presented by the two parties before the court[25]. For example, in one of the cases before the Motor Accident Claim Tribunal, the criminal court judgment of the same accident was not relevant for the civil court judgment, but it was relied upon to determine whether the accused was the driver of the vehicle or not[26].

Whether a Civil Court judgment will be binding on a Criminal Court?

The judgment of the Criminal Court is independent of the decision of the Civil Court and the said judgment of the Civil Court is inadmissible in the criminal prosecution[27]. During the criminal trial, the criminal court should have the power to determine the guilt of the person based on the evidence before it, and not the decision of the civil court[28].

For this purpose, even the finding of the civil proceedings would not be binding on the criminal court, the criminal court will have to form a view of their own, and then reach a decision of their own which shouldn’t be influenced by the civil decision and findings[29].

In State of Maharashtra v. Rasiklal K. Mehta[30], the tax authorities found certain documents to be genuine as presented by the accused, but this did not affect the decision of the Criminal case where the accused was held guilty.

Comparative Analysis

Doctrine of Res Judicata in England

The principle of Res Judicata is well imbibed in Common law, the rule in older laws barred a person after a judgment, demurrer, confession, or verdict was arrived at[31]. This position has stayed in England for a substantial period of time, as mentioned in the Duchess of Kingston’s case, the judgment is the final sentence regarding a particular case[32].

In the judgment of Sir William de Gray, the common law jurisprudence got an important principle of Res Judicata, which spoke about the cases relative to the judgment, which can be given as evidence in a civil suit. The court stated that judgment of the court of the concurrent jurisdiction will be a bar or a conclusive evidence for any further case between the same parties upon the same matter, in another court.

Further, the court stated that the judgment of a court of exclusive jurisdiction, is conclusive in nature upon the two parties, which come before the court with a different issue, which ideally should be decided by another court. But the judgment of either of the courts is evidence of matter, in question before the court of competent jurisdiction.

Comment
A brief understanding and analysis of the section will make the reader realize that Section 40 plays an essential role in the Indian judicial system. This is due to the application of the section by the court to not accept cases which have already been decided upon by another court. This removes the multiplicity of cases and tries to provide final solution at the initial stage of the case itself.

According to report by the Bar Council of India, 70% of the cases don’t reach the higher judiciary, that is to say that 70% of the cases are solved and settled before reaching the high court itself. This apart from reducing the burden from judiciary is also essential for providing a structure to the judiciary and finality to the case.

But this section isn’t a restrictive provision, it does not restrict the right of a party to get ulterior remedy if they feel the court has erred in its judgment. These provisions are of review, appeal and revision of the judgment.

End-Notes:
  1. Collector of Gorakhpur vs Palakdhari: 12 A 1 FB
  2. Commissioner of Central Excise, Nagpur vs Shree Baidya Nath Ayurved Bhavan Ltd, (2009) 12 SCC 419
  3. (2011) 8 SCC 161
  4. Nagabhushanammal vs Chandikeswaralingam, 2016 (3) Scale 5
  5. Lakshanchandra v Ram Das, AIR 1929 Cal 374
  6. 1954 AIR 379
  7. AIR 1960 SC 941
  8. Ramamurthy Dhora v. Secretary of State, AIR 36 Mad 141
  9. Joseph alias Kochu vs Makkaru Pillai, AIR 1960 Ker 127
  10. Ramprasad vs State of UP, AIR 1988 All 309
  11. Gopika Raman Roy vs Atal Singh, 56 IA 119 at 125
  12. K. Venkatasubbayya v. Virayya, AIR 1957 AP 981
  13. Muthaya Setty v. Kantappa Setty, 34 MLJ 431; Parbati v. Mathura, ILR 40 Cal 29
  14. Secretary of State v. Swaminatha, AIR 1915 Mad 294
  15. Ram Kirpal v. Munabati, AIR 1958 Pat 477
  16. Sambasivam vs Public Prosecutor, 54 Cal WN 695
  17. Kharkan v. State of U.P., AIR 1965 SC 83
  18. Ali Hasan v. State, 1975 CrLJ 345 (All)
  19. M.S. Sheriff v. State of Madras, AIR 1954 SC 397
  20. Ram Lal v. Tularam, (1881) 4 All 97
  21. Krishnan Asari v. Adaikalam, AIR 1966 Mad 425
  22. Sardar Prahlad Singh v. Syed Ali Musa Raza, 1997 AIHC 3122; K. Subramani v. Director of Animal Husbandry, Chennai, (2009) 1 MLJ 363
  23. Macherlappa and Sons v. State of A.P., AIR 1958 AP 371
  24. Lalmuni Devi v. Jagdish Tiwary, AIR 2005 Pat 51
  25. Nawab Deen v. Sohan Singh, AIR 2002 HP 143
  26. Ishwar Singh v. Jagjit Singh, AIR 2004 NOC 432
  27. Ramanamma v. Appalanarasayya, AIR 1932 Mad 254
  28. Trailokyanath Das v. Emperor, ILR (1931) 59 Cal 136
  29. Emperor v. Khwaja Nazir Ahmad, AIR (32) 1945 PC 18 .
  30. 1978 Crlj 809 (Bom)
  31. Brunsden v Humphrey, (1884) 14 QBD 146
  32. 2 Smith’s LC, 13th Edn, p 644

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