Ordinarily, the judgement in previous cases will not be admissible in subsequent cases as the court has to form its own opinion depending upon the facts and circumstances of the case. Section 37 of the Adhiniyam clearly provides that judgments are not relevant unless they are declared by BSA. However, Section 34, 35, 36 and 38 of the BSA lays down certain instances when previous judgment could be used as evidence in subsequent cases and are relevant.
Judgments
i. in rem -against whole word.
ii. in personam - between parties only.
Judgment in rem and Judgment in personam: Judgment in personam determines the right of the parties to suit or proceedings. The judgment is binding only on parties to the suit or proceeding and their proceedings and their privies. Judgment in rem is a judgment upon the status of some particular subject matter in a proceeding brought to enforce a right. It is not only binding on the person between whom it is passed but also to the world at large.
Previous judgments relevant to bar a second suit or trial [Section 34]
According to Section 34, where the question is whether the court ought to take cognizance or hold a trial, the existence of any judgment, order or a decree is a relevant fact if by law it has the effect of preventing the court from taking cognizance or holding a trial. This section permits the evidence of previous judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, when the question arises whether such court ought to take cognizance of such suit or to hold such trial.
This section is concerned with the principle of res judicata under Section 11 of C.P.C. or double jeopardy under Section 337 of BNSS in criminal proceedings. It deals with judgment in personam which binds only the parties to the suit or their privies and not the world at large.
A judgment in a criminal trial is not relevant to the civil case except for the purpose of showing the fact of trial and conclusion of it. A civil judgment is not relevant to a criminal trial though arising out of the same facts.
Relevancy of judgments in probe, etc. jurisdiction [Section 35]
Section 35 deals with judgments in rem. Judgment in rem are kind of declaration of the status of person. They decide a legal charachter of a person and which is binding against the world at large apart from the parties to the case. These judments are always admissible irrespective of whether they are inter-parties or not. According to Section 35, a final judgment, order or decree of a competent court or tribunal exercising
i. Probate
ii. Matrimony
iii. Admirality
iv. Insolvency jurisdiction
which confers upon or takes away from any person any legal charachter or declares any person to be entitled to any such charachter or to any thing absolutely, is relevant.
These judgments in rem are conclusive in nature showing that a person has or is ceased to have a legal character. The judgment is a conclusive proof of the fact that the legal charachter which it confers or takes away from the person, is conferred or taken away from the date on which the judgment comes into operation.
There is a change in this provision. Seciton 35 BSA now covers tribunal's orders as well. Earlier only orders of competent courts were covered.
Supreme Court in R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 observed that the charachter of conclusivness, from point of view of law of evidence, will attach to a judgment, order or decree, only if it falls within the categories mentioned in Section 41 [now Section 35 of BSA]. Once the judgment etc falls withing it law dispenses with the proof of the fact and the conclusion of the former judgment etc. about the legal charachter which it confers or declares.
In Satya v. Teja Singh (1975) 1 SCC 120, Supreme Court held that the judgment to operate as conclusive proof under Section 35 of BSA has to be of competent court. It means the court must have jurisdiction over the parties and subject matter. Even a judgment in rem is open to attack on the ground that court which gave the judgment had no jurisdiction to do so.
Probate jurisdiction: It is a jurisdiction under Indian Succession Act, 1925. Under this jurisdiction the court pronounces upon the genuineness of a deceased person's will. The court also grants letters of probate so that the person may act for the deceased for the execution of will.
Matrimonial jurisdiction: It is a jurisdiction to decide matrimonial disputes under various matrimonial/family laws.
Admiralty jurisdiction: It is a jurisdiction which decides cases arising out of war claims.
Insolvency jurisdiction: It is a jurisdiction exercised under various insolvency laws. It adjudicates whether a particular person is insolvent or is discharged from insolvency etc.
For example: A probate declaring A to be a legatee and to be entitled to the property of the legator declares for the world at large that the legatee is so entitled and thereafter the will cannot be challeneged by anyone.
Relevancy of other judgments relating to matters of public nature [Section 36]
Judgment inter-parties are relevant under Section 34 and they bar subsequent proceedings. Judment in rem, though not inter-parties are relevant under Section 35 of BSA. They are conclusive proof of any legal charachter. Other judgments, which are neither inter-parties or in rem are relevant under Section 36 if they relate to matters of public nature which is relevant to the inquiry. However, such judgments are not conclusive proof of what they state. Matters of public nature include matters affecting entire population or a section of population. Such judgments are relevant in every case or proceedings in which the matter is again in question.
For example: A sued B for trespass on his land. B alleges existence of public right of way on A's land which A denies. There was a previous suit between A and C where C also claimed public right of way over A's land and that suit was decided in C's favour. In this case, the existence of a decree in C's favour against A is a relevant fact and admissible under Section 36 of the BSA in the subsequent suit between A and B as the judgment relates to a matter of public nature which is in issue in subsequent case.
Judgments other than those mentioned under Section 34 to 36 [Section 37]
Section 37 provides that the judgments other than those mentioned under Section 34 to 36 are irrelevant. It further provides that in the following cases judgments otherwise irrelevant will become relevant:-
(1) Where the judgment, order or decree is a fact in issue. For example: A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue [Illustration (d) to Section 37].
(2) Where the judgment, order or decree is otherwise relevant under some other provisions of the Act. For example: A has obtained a decree for possession of land against B. C, B's son, murders A in consequence. The existence of the judment is relevant under section 6 of the BSA as showing motive for the crime.
Thus, in all the above circumstances, the judments of a previous case are relevant in subsequent case. For example: A prosecutes B for stealing a cow from him. B is convicted. A afterwards sues C for the cow, which B had sold to him before conviction. As between A and C, the judgment against B is irrelevant. In such case, the judgment against B is irrelevant as it is not covered under Section 34 to 36 of the Adhiniyam. [Illustration (b) to section 37]
Fraud or collusion in obtaining or incompetency of court may be proved [Section 38]
Section 38 provides that any party may show that any judgment, order or decree which is relevant under section 34, 35 or 36 was delivered by the court not competent to deliver it or it was obtained by fraud or collusion. Thus, a judgment under this section can be attacked on following grounds:
1. Incompetent jurisdiciton
2. Obtained by collusion.
3. Obtained by fraud.
Incompetent jurisdiction means court had no jurisdiction to decide the matter. Judgment obtained by collusion means that there was no actual cause of action between the parties but the parties conspired to achieve desired result by creating a false cause of action. Judgment obtained by fraud means that material facts were suppressed from the court with intent to deceived the court and get a favourable judgment. Collusion arises where the facts put forward as foundation of their respective cases by the parties before the court do not exist.
In Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC 756 Supreme Court held that it is well settled that the fraud vitiates every solemn act. Any order or decree obtained by practising fraud is a nullity. In such even, Section 44 of the Act [Section 38 of BSA] would be attracted.
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