Court delivered in 1880 on Section 13 of the Evidence Act. In stark contrast to
the ratio of the majority of the said
judgement, in The Collector Of Gorakhpur vs Ram
Sundar Mal (1934) and in judgements before that, the Privy
Council and the Calcutta High Court took the view that a judgement which is not inter partes is still
admissible as a transaction within the meaning of Section 13 in a subsequent
proceeding. Extracted below is the relevant portion of The Collector judgement:
whether statements in judgments and decrees are admissible under Section 13 read with Section
43 is elaborately discussed by Sir John Woodroffe
in his new edition of the Evidence
Act(1931), p. 181 et seq. He would hold that they are
not admissible at all under Section 13 ; but this view is not in
accordance with the decisions of the Board in Ram Ranjan
Chuckerbutty v. Ram Narain Singh(1894) L.R. 22 I.A. 60 and Dinontoni
Chowdhrani v. Broja Mohini Chowdhrani (1901) L.R. 29 I.A. 24 :
S.C. 4 Bom. L.R. 167. At the bottom of p. 194, however, the learned author
treats judgments as evidence of admissions by ancestors. There are great
difficulties about Section 13, but Dinomoni’s case is express
authority for the proposition that ” on general principles and under Section 13 ” orders
made under the Criminal Procedure Code are admissible
for the purposes mentioned in the passage quoted at p. 191 from the Board’s
judgment.”
the absence of any evidence to show as to who propounded this pedigree which
the Subordinate Judge acted upon, it is not possible to say that it was an
admission by Kishore Das through whom Ishar Das lays his claim and consequently
the pedigree would not be an admission relevant under section
21 of the Indian Evidence Act. But the
judgment itself, we think, can be received in evidence under section
13 of the Evidence Act as a transaction in which Kishore Das, from whom Ishar Das purports to
derive his title, asserted his right as a spiritual collateral of Mangal Das
and on that footing got a decree. The decree also recognised the right of
Kishore Das to institute the suit as such collateral. We think therefore that
the judgment could be received in evidence and although it is not by any means
conclusive and has got to be weighed and appraised for what it is worth, it can
be used in support of the oral evidence adduced in the case. It is to be noted that this part of the plaintiff’s story
was not challenged by the defendants in their evidence at all. In our opinion
therefore on the evidence on the record it is fully established that Sital Das
was a spiritual collateral of Kishore Das.”
admissible in evidence under the provisions of sections 40, 41 and 42 of the Evidence Act. Section 43 which is extracted below,
clearly provides that those judgments which do not fall within the four corners
of sections 40 to 42 are inadmissible unless the
existence of such judgment, order or decree is itself a fact in issue or a relevant
fact under some other provisions of the Evidence Act:-
Judgments, etc., other than those mentioned in sections 40
to 42, when relevant- 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.”
judgment as coming under the provisions of s. 43, referred to above. We are, however,
of the opinion that where there is a specific provision covering the
admissibility of a document, it is not open to the court to call into aid other
general provisions in order to make a particular document admissible. In order
words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42, it must fulfil the conditions of s. 43 otherwise it cannot be relevant
under s. 13 of the Evidence Act. The words
“other provisions of this Act” cannot cover s. 13 because this
section does not deal with judgments at all It is also well settled that a
judgment in rem like judgments passed in probate, insolvency, matrimonial or
guardianship or other similar proceedings, is admissible in all cases whether
such judgments are inter parties or not. In
the instant case, however, all the documents consisting of judgments filed are
not judgments in rem and therefore, the question of their admissibility on that
basis does not arise, As mentioned earlier, the judgments filed as Exhibits in
the instant case, are judgments in personam and therefore, they do not fulfil
the conditions mentioned in s. 41 of the Evidence Act.”
position and then quoted a Calcutta High Court judgement and another Privy
Council judgement to hold as follows:
the recitals and findings in a judgment not inter parties are not admissible in
evidence, such a judgment and decree are, in our opinion, admissible to prove
the fact that a decree was made in a suit between certain parties and for
finding out for what lands the suit had been decreed.”
based upon sound general principle or merely supported by reasons of
convenience, the rule that so far as regards the truth of the matter decided a
judgment is not admissible evidence against one who is a stranger to the suit
has long been accepted as a general rule in English law.”
cumulative effect of the decisions cited above on this point clearly is that
under the Evidence
Act a judgment which is not inter partes is
inadmissible in evidence except for the limited purpose of proving as to who
the parties were and what was the decree passed and the properties which were
the subject matter of the suit. In these circumstances, therefore, it is not
open to the plaintiff’s respondents to derive any support from some of the
judgments which they have filed in order to support their title and
relationship in which neither the plaintiffs nor the defendants were parties.
Indeed, if the judgments are used for the limited purpose mentioned above, they
do not take us anywhere so as to prove the plaintiff’s case.”
My take- In order to use a judgement under Section 13 to prove a right (public or private, corporeal or incorporeal) or a custom, reference must be made to Sections 40-43. This is because the fundamental
premise of Sections 40-43, especially Section 43, is that the said provisions are self-sufficient is so far as relevancy of
judgements, orders and decrees is concerned. If a judgement, which is sought to be used as evidence under Section 13, does not satisfy Sections 40-42, it can be introduced under Section 43 as being relevant only if “the existence
of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act”.
The underscored portion may be misunderstood as the judgement itself being
relevant under some other provisions of the Act, when in fact if the sentence
is taken as a whole it reads “the
existence of such judgment, order or decree is relevant under some other provisions of this Act”. This means, that the window
provided under Section 43 does not deal with the admissibility of the contents
of the judgement, but allows it to the limited extent of proving its existence
if the existence itself is a fact in issue, or if such existence is relevant
under some other provisions of the Act. In relation to Section 43, this condition needs to be satisfied in order to prevent Section 13 from being used as an omnibus backdoor
to sneak in any and every judgement not inter partes as evidence which does not satisfy the requirements
of Sections 40-43.
Section 13, this means, that the current position of Indian law differs from Fatten Lall v Gujju Lall, and treats
even previous judgements as transactions within the meaning of Clause (a) of
the said provision. However, for such judgements to be admissible as evidence as transactions,
they must satisfy the requirements of Sections 40-43 which are particularly
stringent when it comes to using judgements which are not inter partes and which do
not relate to rights in rem.
There’s a chance
my restatements are repetitive, but the idea was to capture what I have
understood, with a measure of clarity. I am not sure the law on Section 13 is
settled yet. In light of what has been discussed, what is the distinction between “transaction” in Clause (a) of Section 13 and “instance” in Clause (b)? Comments and suggestions are welcome!