\n<\/p>\n
\nHow does one prove the existence of a right or \n \nIn other words, under Section 43, a previous judgement How does one prove the existence of a right or a custom in any proceeding before the Court? Is there a specific provision which applies to such a circumstance? In what context does the exercise become relevant? To address these and such questions, one must look to Section 13 of the Evidence Act, 1872, which […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[167059],"tags":[834,20155,41002],"dealstore":[],"offerexpiration":[],"class_list":["post-7007137","post","type-post","status-publish","format-standard","hentry","category-evidence-act","tag-custom","tag-existence","tag-proving"],"yoast_head":"\n
\na custom in any proceeding before the Court? Is there a specific provision
\nwhich applies to such a circumstance? In what context does the exercise
\nbecome relevant? To address these and such questions, one must look to Section
\n13 of the Evidence Act, 1872, which is reproduced below:<\/span><\/p>\n
<\/i>
\n13. Facts relevant when right or custom is in
\nquestion<\/span><\/i><\/span><\/p>\n
\nexistence of any right or custom, the following facts are relevant.<\/span><\/i><\/i><\/span><\/div>\n
\nor custom in question was created, claimed, modified, recognized, asserted, or
\ndenied, or which was inconsistent with its existence;<\/span><\/i><\/i><\/span><\/div>\n
\nright or custom was claimed, recognized, or exercised, or in which its exercise
\nwas disputed, asserted or departed from.<\/span><\/i><\/i><\/span><\/div>\n
<\/span><\/i><\/span>
\nThe question is, whether A has a right
\nto a fishery. A deed conferring the fishery on A\u2019s ancestors, a mortgage of the
\nfishery by A\u2019s father, a subsequent grant of the fishery by A\u2019s father,
\nirreconcilable with the mortgage, instances in which A\u2019s father exercised the
\nright, or in which the exercise of the right was stopped by A\u2019s neighbors, are
\nrelevant facts.<\/span><\/i><\/i><\/span><\/span><\/div>\n
\ndoes it apply only to rights which have a public or a quasi<\/i>-public character? What would qualify as a \u201ctransaction\u201d
\nwithin the meaning of Clause (a)? Would a judgement, wherein the right or custom
\nwas discussed, qualify as a transaction? Or would \u00a0<\/span>\u00a0<\/span>the
\njudgement, or the legal proceeding where the judgement was delivered, qualify
\nas an \u201cinstance\u201d within the meaning of Clause (b)? <\/span><\/span><\/div>\n
\nwas delivered by a Full Bench of the Calcutta High Court in 1880 in Fatten
\nLall vs Gujju Lall<\/a><\/span><\/i>. Compared to other statutes, given that the analysis
\nof judgements relating to the Evidence Act is even more guided by the facts of
\nthe cases they were delivered in, it becomes important to understand the backdrop
\nin which the judgement was delivered. <\/span><\/span><\/span><\/div>\n
\nthe issue of X\u2019s succession from another person Z had a bearing on X\u2019s right
\nwith respect to the property. In a previous proceeding initiated by Y against
\nQ, it was established that X was indeed a successor of Z. Consequently, X
\nwanted to place reliance on the judgement delivered in the previous proceeding
\n(\u201cearlier judgement\u201d) in his current suit against Y on the ground that the said
\njudgement was a \u201ctransaction\u201d within the meaning of Section 13, and was
\ntherefore admissible. Y objected to the reliance on the judgement on the ground
\nthat it was inadmissible in evidence in X\u2019s suit against Y since X was not
\nparty to the previous proceeding.<\/span><\/span><\/div>\n
\ninadmissible in evidence. While the entire judgement makes for an extremely
\nenlightening read on Sections 11, 13, 32, 40-43 and 48 of the Evidence Act, the
\nquality of analysis in the minority and majority opinions is a treat for litigators.
\n\u00a0<\/span><\/span><\/span><\/div>\n
\nthe earlier judgement under Sections 40-42 of the Evidence Act, which deal with
\nrelevancy of judgements, orders or decrees of Court, and concluded that the
\nearlier judgement while not attracting Sections 40-42, would certainly attract
\nthe window provided under Section 43. Section 43 provides that <\/span>“judgments,
\norders, or decree, other than those mentioned in\u00a0<\/i><\/span>Sections 40,\u00a0<\/span><\/span>41, and\u00a0<\/span>42<\/i>, are irrelevant, unless the fact that such a judgment,
\norder, or decree existed is relevant<\/i> under some other provision of this Act<\/i><\/b>.<\/span>
\nHe, therefore, concluded that the earlier judgement was relevant under Sections
\n11 and 13 of the Act. <\/span><\/div>\n
\nJustice Mitter, the word transaction was wide enough to take within its ambit
\nan earlier judgement and since there was no restriction on the nature of right
\nor custom referred to in Section 13, it included even in personam <\/i>rights. He further added that the existence of the
\nearlier judgement was itself a relevant fact within the meaning of Section 11
\nsince its existence would affect the fact in issue in the current suit. The
\nfact that X was not a party to the earlier judgement did not affect its admissibility
\nunder Section 13, according to Justice Mitter. Also, he was of the
\nview that the Indian Evidence Act did not necessarily mirror the English law of evidence in
\nevery way.<\/span><\/span><\/div>\n
\nMitter. One of the majority opinions observed that Section 13 did not relate to
\nthe issue of ownership of property, but was limited in its application to
\nincorporeal rights, and that a judgement was not a transaction in any sense of
\nthe word. As regards the applicability of Section 11, it was held that while the
\nexistence of the earlier judgement could be treated as a fact, the judgement in itself was not a fact but an opinion and therefore did not attract Section 11. The
\nsubstance of the majority opinion is, perhaps, best expressed in the words of the
\nthen Chief Justice who was part of the Bench:<\/span><\/span><\/div>\n
\nit must be generally acknowledged, that, with some few exceptions, the\u00a0Indian
\nEvidence Act\u00a0was intended to, and did in fact, consolidate the English law
\nof evidence.<\/i><\/span><\/span><\/div>\n
\nchapters of the Act deal seriatim with the relevancy and consequent
\nadmissibility of the different kinds of evidence, and upon this principle,\u00a0Sections
\n5\u00a0to\u00a016\u00a0deal with the admissibility of facts, whilst\u00a0Sections
\n40\u00a0to\u00a045\u00a0deal expressly with judgments; and I cannot help
\nthinking, with all deference to the opinions of those learned Judges who have
\nexpressed a contrary opinion, that if it had been really the intention of the
\nLegislature to depart entirely from the English rule, and to make a very large
\nclass of judgments admissible here, which had never been admissible before the
\nAct, either in England or in this country, they would have expressed their
\nintention more plainly, by means of suitable provisions introduced into that
\nportion of the Act which deals exclusively with judgments.<\/span><\/span><\/i><\/div>\n
\nthan another, as being founded upon the most manifest justice and good sense,
\nit is this; that (except in the case of judgments in rem and judgments relating
\nto matters of a public nature, which are governed by a different principle) no
\nman ought to be bound by the decision of a Court of Justice, unless he or those
\nunder whom he claims were parties to the proceedings in which it was given<\/span><\/i><\/b>.\u201d<\/span><\/i><\/span><\/div>\n
\nwere the findings of the Chief Justice:<\/span><\/span><\/div>\n
\npartes which would operate as res judicata in a second suit.\u00a0<\/span>Section 41<\/span>\u00a0admits judgments in rem as evidence in all subsequent
\nsuits where the existence of the right is in issue, whether between the same
\nparties or not. And\u00a0<\/span>Section 42<\/span>\u00a0admits all
\njudgments not as res judicata, but as evidence, although they may not be
\nbetween the same parties, provided they relate to matters of public nature
\nrelevant to the enquiry.<\/span><\/b><\/span><\/i><\/div>\n
\ncounsel would put upon\u00a0Section
\n13<\/span>\u00a0is right, there would be no necessity for\u00a0Sections 40<\/span>,\u00a041<\/span>, and\u00a042<\/span>\u00a0at all. Those
\nsections would then only tend to mislead, because the judgments which are made
\nadmissible under them would all be equally admissible as
\n“transactions” under\u00a0Section 13<\/span>, and not only
\nthose, but an infinite variety of other judgments which had never before been
\nadmissible either in this country or in England. And it is difficult to
\nconceive why, under\u00a0Section
\n42<\/span>, judgments though not between the same parties should be declared
\nadmissible so long as they related to matters of a public nature, if those very
\nsame judgments had already been made admissible under\u00a0Section 13<\/span>, whether they
\nrelated to matters of a public nature or not.<\/span><\/span><\/i><\/div>\n
\nsaid, that\u00a0Section 43<\/span>\u00a0expressly
\ncontemplates cases in which judgments would be admissible under other sections
\nof the Act, which are not admissible under\u00a0Sections 40<\/span>,\u00a041<\/span>\u00a0or 42. This
\nis quite true. But then I take it, that the cases so contemplated by\u00a0Section 43<\/span>\u00a0are those
\nwhere a judgment is used not as a res judicata or as evidence more or less
\nbinding upon an opponent by reason of the adjudication which it contains,
\n(because judgments of that kind had already been dealt with under one or other
\nof the immediately preceding sections). But
\nthe cases referred to in\u00a0Section
\n43<\/span>\u00a0are such, I conceive, as the section itself illustrates,
\nviz., when the fact of any particular judgment having been given is a matter to
\nbe proved in the case. As for instance, if A sued B for slander, in saying that
\nhe had been convicted of forgery, and B justified upon the ground that the
\nalleged slander was true, the conviction of A for forgery would be a fact to be
\nproved by B like any other fact in the case, and quite irrespective of whether
\nA had been actually guilty of the forgery or not. This, I conceive, would be
\none of the many cases alluded to in\u00a0Section 43<\/span><\/b>.\u201d<\/span><\/span><\/i><\/div>\n
\nin an\u00a0inter<\/i> partes<\/i> dispute between two or more parties cannot become admissible in
\nevidence against one of the parties in a subsequent proceeding involving that
\nparty and a stranger to the earlier proceeding. In the next few posts, I will
\ncontinue with my discussion on Sections 11, 13 and 40-43 by referring to a few
\nmore judgements.<\/span><\/span><\/p>\n<\/div>\n<\/div>\n\n","protected":false},"excerpt":{"rendered":"