Report No. 185

Sections 40 to 44: Judgments of Courts of Justice, when relevant

Section 40 mentions where 'previous judgments relevant to bar a second suit or trial'. It reads as follows:

"Section 40.- The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial."

Section 40 deals with the principle of res judicata in civil cases or autre fois acquit or autre fois convict, in criminal cases. The section deals with the relevancy of an earlier judgment, order or decree for deciding whether a court can take cognizance of a suit or holding a trial. However, the conditions under which a former judgment, order or decree will prevent a civil or criminal court from taking cognizance of a suit or holding a trial, do not belong to the Law of Evidence but are contained in Section 10-13 and Order 2 Rule 2 of the Code of Civil Procedure, 1908 and to principles of autre fois acquit in Section 300 of the Code of Criminal Procedure, 1973.

Section 298 of the latter Code prescribes the mode of proving a previous conviction or acquittal. It may be noted that in civil cases trial of a particular issue decided earlier may be barred. Even in criminal cases, there may be judgments which bar the trial, not of a whole case, but of a particular issue, known as 'issue estoppel'.

The section, it was pointed out in the 69th Report (see para 16.7 to 16.11) ought to have referred to the bar of 'issues' also rather than merely to suits or trials of a whole case. Reference was made to the Full Bench decision in Gujjulal v. Fateh Lal: (1880) ILR 6 Cal 171 at p.190 and to a similar defect to Section 2 of Act VIII of 1859 as was pointed out by the Privy Council in Soojo Monee v. Saddanund 12 Beng LR 304 (PC). The speech of Sir James Stephen dt. March 12, 1872 when the Act was introduced speaks of previous decision on matters of fact relevant to the issue (see Sarkar, Evidence, 15th Ed, 1999, pp. 816-817).

The present Section 40 is intended to refer to judgments inter partes (and not to the judgments mentioned in Section 41), for which no provision is made in the Code of Civil Procedure.

In this connection, reference may be made to the recent judgment of the Supreme Court in K.G. Premshankar v. Inspector of Police: 2002 (6) SCALE 371 which refers to secs. 40, 41, 42 and 43 and to the relevance of previous judgment in a civil case, in a subsequent criminal case. It is not always conclusive though it is always relevant.

We, agree with the recommendation in para 16.12 of the 69th Report that Section 40 be revised as follows:

"Judgments Of Courts Of Justice When Relevant

"40. Previous Judgments relevant to bar a second suit or trial.- The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or issue or holding a trial or determining a question, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or issue, or to hold such trial or determine such question, as the case may be."

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