Section 13 of the Evidence Act- Part II

In the last post, I had discussed the judgement of a Full Bench of the Calcutta High 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:

“The question 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.”

This position was reiterated by the Supreme Court in Shrinivas Krishnarao Kango vs Narayan Devji Kango And Others (1954), and in Sital Das vs Sant Ram And Ors. (1954), wherein the Court held as follows:

“We agree with the High Court that in 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.”

While these judgements were endorsed again by the Supreme Court in Tirumala Tirupati Devasthanams vs K.M. Krishnaiah (1998), which appears to have continued even until 2015 in K. Nanjappa (D) By Lrs vs R.A. Hameed @ Ameersab (D)By Lrs., a much more nuanced opinion emerged in 1983 in State of Bihar vs Radha Krishna Singh & Ors. which was delivered by a three-Judge Bench. Here are the relevant portions of the said judgement, which I will deal with:

“…it is well settled that judgments of courts are 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:-

"43. 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."

Some Courts have used section 13 to prove the admissibility of a 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.”

The Bench also cited Fatten Lall v. Guju Lall to support its position and then quoted a Calcutta High Court judgement and another Privy Council judgement to hold as follows:

“In Gadadhar Chowdhury & Ors. v. Sarat Chandra Chakravarty & Ors.(1) it was held that findings in judgments not inter parties are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows:

"Though 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."

This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter parties, In Maharaja Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer & Ors.(1) the Privy Council made the following observations:

"Whether 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."

The 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.”

What could all this mean and is it possible to reconcile all these judgements? 

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.

In the context of 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!