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:
- Judgment in rem and
- 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
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.
It is based on two Latin maxims, they are:
- 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
- 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.
The Apex Court in Indian Council for Enviro-Legal Action vs UOI, 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:
- Private convenience:
which states that a person should not be vexed twice for the same cause.
- 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 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.
Case of Shrinivas Krishnarao Kango vs Narayan Devji Kango
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
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
 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, 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 or
government 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. 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. 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
Whether or not an adverse finding against a successful party acts as Res
Judicata, depends on the right to appeal against the finding. 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.
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
Understanding Section 40 in Criminal cases
Even before the Independence, Privy Council had held the principle of Res
Judicata applicable to the criminal proceedings. 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.
Subsequently Allahabad High Court 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.
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. The
judgment of a Criminal Case will not be binding in a civil action, it can be
used as a proof for corroboration, 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.
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.
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. 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.
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. 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.
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.
In State of Maharashtra v. Rasiklal K. Mehta
, 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.
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. 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.
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.
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
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.
- Collector of Gorakhpur vs Palakdhari: 12 A 1 FB
- Commissioner of Central Excise, Nagpur vs Shree Baidya Nath Ayurved
Bhavan Ltd, (2009) 12 SCC 419
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- Nagabhushanammal vs Chandikeswaralingam, 2016 (3) Scale 5
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- 2 Smith’s LC, 13th Edn, p 644