Section 40 of the Indian Evidence Act, 1872


Section 40 incorporates the principle of res judicata. The plea of res judicate belongs to the province of procedure, but it does not say that the judgment, order or decree is conclusive. It simply says that the existence of such judgment, order or decree is relevant fact. If the decree-holder obtains possession otherwise than by execution of the decree it amounts to satisfaction of decree for possession and if the decree holder is disposed thereafter he gets a fresh cause of action for filing a second suit on the basis of his dispossession. A judgment which has the effect of res judicata is relevant in civil and criminal cases.

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The basic objective of incorporating this principle is to prevent multiplicity of suits and interminable disputes between the litigants. Once there has been judgment, order or decree about fact and laws no subsequent proceeding would be started. The doctrine of res judicata rests upon the maxim nemo debet bis vexari pro una et edem cause (No man ought to be tried twice for the same cause of action).

Res judicata:

Res judicata means a suit is already adjudicated upon. In other words a thing upon which the court has exercised its judicial mind. Section 11 of the Civil Procedure Code lays down the rule of Res judicata. Section 40 is intended to refer to judgment inter parties and not to the judgment mentioned in Section 41.

It provides that the court should not try a suit in which there is judgment tried by the same court between the same parties and on same cause of action. Res judicata in civil suit provides that facts actually decided in a previous suit by a competent court cannot be again agitated by the same parties. A judgment of the previous suit is conclusive proof in the subsequent suit.

The judgment, order or decree passed in a previous proceedings, if relevant, as provided under sections 40 and 42 or other provisions of the Evidence Act, then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. The principle does not apply when they contravene any statutory direction or prohibition. There is something which cannot be overridden or defeated by the previous judgment between the parties.

The doctrine of res judicata applies to law of procedure and its binding force of judgment is also applicable to the parties. A judgment which is relied on by a party in a subsequent suit in support of the plea of res judicatas, becomes relevant and can be read in evidence.

To give effect to the plea of res judicata the court has to be satisfied that the legal rights on which plaintiff sued was finally determined by the judgment and decree therein. In a suit for title, recitals made in judgment between the predecessor of plaintiff and predecessor of defendant regarding rights to the suit property would be admissible for deciding title to the property between plaintiff and the defendant.

Res Judicata and Estoppel-Distinction:

The rule of estoppel is not a rule of substantive law. It is a rule of evidence. Res judicata belongs to law of procedure regulated by Section 11 of the C.P.C. Res judicata ousts the jurisdiction of the court, while estoppel shorts the month of a party.

Application of the principle in Criminal cases:

The principle of the section applies also in criminal proceedings, but judgment of criminal court is not admissible in the civil court in civil suit for which declaration of the title filed by the plaintiff. Any finding in a criminal proceeding by no stretch of investigation would be binding in a civil proceeding. If a person has been tried for an offence and either convicted or acquitted of it, he cannot be tried again for the same offence. The plea of autre fois convict (who is convicted) or autre fois acquit (who is acquitted) in the previous case has been held to be good defense. Section 403 of Cr. PC has incorporated this principle.

On the other hand. Article 20(2) of the Constitution of India gives guarantee against double jeopardy which provides “no person shall be prosecuted and punished for the same offence more than once.”

Thus, the judgment by which acquittal or conviction has been ordered will be relevant to every criminal proceeding; but this section has no application to the cases in which the charge is split into parts and the acquittal is for one part. In K.G. Premshanker v Inspector of Police the Supreme Court has laid down the following principles when judgments of courts of justice are relevant:

1. The previous judgment which is final can be relied upon as provided in Sections 40 to 43 of the Evidence Act;

2. In civil suits between the same parties, principle of res judicata may apply;

3. In a criminal case, Section 300, Cr. PC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; and

4. if the criminal case and the civil proceedings are not for the same cause, judgment at the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41.