Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under section 126.
Section 23 is applicable only to civil cases and gives effect to the maxim, interest reiplicae ut sit finis litium. It means that in the interest of the state there should be end of litigation. The section expressly provides that in civil cases an admission is not relevant when it is made: (i) upon an express condition that evidence of it is not to be given. It means that when a person admits the liability upon express condition that evidence of such admission should not be given, or (ii) under circumstances from which the court can infer that the litigating parties agreed together that evidence of it should not be given.
That is, where there is agreement between parties that the admission will not be proved in evidence such admission will not be allowed and is not relevant. When such circumstances happen, in law it is expressed as “without prejudice.” It means “the use of what I commit myself to, if not accepted by you, is impermissible.” The letter written with regard to an action and marked “without prejudice” was only privilege for the purpose of that action.
It is very often found that the litigating parties, by negotiations, want to settle their disputes amicably, and the negotiations usually takes place out of the Court. “Very often for the purpose of buying peace and settling disputes by a compromise people made so many settlements, if such settlements are allowed to be proved in court,” it will become impossible for people to reach any compromise. Section 23 provides protection for negotiation.
When one of the parties to the dispute writes to the other making an offer for settlement in certain terms he may stipulate that in case his offer is not accepted his letter is not to be used against him as an admission of liability.” Such letter of communications made “without prejudice” and is not accepted to be admissible as evidence. “Confidential overtures of pacification and any other offers or propositions between litigating parties, expressly or impliedly made without prejudice are excluded on grounds of public policy,” otherwise the clever and ingenious man may frustrate the spint of law when he knows the weak points of the case of his opponent. For example, if parties are to be prejudiced by efforts to compromise, it will be impossible to attempt any amicable arrangement of differences. Admission or statements which are proved to be wrong or mistaken are not binding on the party making it. Lord Mansfield once observed that “all men must be permitted to buy peace without prejudice to them should the offer not succeed, such offers being made to stop litigation without regard to the question whether anything is due or not.” Thus the letter marked “without prejudice” protects subsequent and even previous letter in the same correspondence. The fact is that a document is stated to have been written “without prejudice” will not exclude it.
According to Section 23 an admission will not be relevant if it is given on condition either express or implied. It is strictly confined to the cases where there is dispute and negotiation for settlement of dispute between parties is going on. For example, the plaintiff was injured while he was getting down from the train when the train just started to move at the time of his getting down.
The plaintiff filled a suit for damages. The railway authorities issued damage certificate containing mark “without prejudice” requesting plaintiff to be examined by the Railway doctor. The damage certificate is relevant and cannot be used as evidence when a correspondence relating to a dispute was initiated by a letter marked “without prejudice.” The protection will apply to whole proceeding even if the reply-letter is not so marked. Similarly, during the pendency of a petition for restoration of conjugal rights, the husband wrote a letter to the father of wife confessing his guilt. The letter was relevant and not admissible under section 23 of the Act. The privilege of without prejudices will continue even after the settlement and cannot be disclosed either by the parties or by any third persons.
“The evidence as to negotiation of compromise and the statements made during such negotiations are generally without prejudice. It is ordinarily against public policy to admit such evidence. The statements made in the compromise petition even if treated as valid admissions, cannot be treated as evidence when the compromise fails.”
The principle of “without prejudice” has no application in criminal cases. Similarly, if the statement is not related to the purpose of negotiation it is also not protected.
Under explanation the professional communications made by a client to his legal adviser are generally protected from disclosure under section 126. But, communications made to the legal adviser in furtherance of a illegal acts, crime or fraud are not protected. The court can compel the legal adviser to give evidence of any statement made for illegal purpose.