Section 42 Evidence Act: Relevancy and Effect of Judgments, Orders or Decrees
Section 42 of the Indian Evidence Act, 1872 dealt with the relevance of earlier judgments concerning matters of a public nature. Its corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 36.
Section 36 of Bharatiya Sakshya Adhiniyam, 2023
Heading: Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35.
Under Section 36, judgments, orders or decrees outside Section 35 are relevant when they concern matters of a public nature that are relevant to the enquiry. However, they are not conclusive proof of the matters stated in them.
See the official Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF), Section 36.
Section 42 of Indian Evidence Act, 1872
The former Section 42 stated that judgments, orders or decrees other than those mentioned in Section 41 were relevant if they related to matters of a public nature relevant to the enquiry, but were not conclusive proof of their statements.
Its legal principle is carried forward in BSA Section 36, with the cross-reference changed from former Section 41 to BSA Section 35.
Meaning and legal effect
What is a judgment, order or decree?
A judgment states a court's reasons for its decision; an order expresses a formal decision of a civil court that is not a decree; and a decree is the formal expression of an adjudication conclusively determining rights regarding matters in controversy in a suit, subject to the definition in Section 2(2) of the Code of Civil Procedure, 1908. The CPC definitions of judgment and order appear in Sections 2(9) and 2(14).
What is a matter of a public nature?
For this provision, the expression refers to a matter affecting the public or a section of the public, such as an asserted public right of way. A purely private dispute does not become a matter of public nature merely because a court decided it.
Relevant does not mean conclusive
A relevant earlier judgment may be considered by the court when deciding the public issue. But it does not, by itself, establish the truth of every factual statement or finding recorded in that judgment. The parties may still lead other admissible evidence, and the court assesses its effect in the circumstances.
Statutory illustration: Public right of way
A sues B for trespass on A's land. B claims that the public has a right of way over the land; A denies it.
In an earlier trespass suit brought by A against C involving the same land, C had also claimed the same public right of way, and a decree was passed in C's favour.
Effect: The earlier decree is relevant to the question of the public right of way in the later suit between A and B, but it is not conclusive proof that the public right of way exists.
Related provisions and distinctions
| Provision | Subject and significance |
|---|---|
| BSA Section 34 / former Evidence Act Section 40 | Judgments relevant to deciding whether a subsequent suit or trial is barred. |
| BSA Section 35 / former Evidence Act Section 41 | Certain final judgments in probate, matrimonial, admiralty and insolvency jurisdiction; specified matters can be conclusive proof. |
| BSA Section 36 / former Evidence Act Section 42 | Judgments about relevant public matters are admissible but not conclusive proof. |
| BSA Section 37 / former Evidence Act Section 43 | Other judgments are generally irrelevant unless their existence is in issue or they are relevant under another provision. |
| BSA Section 38 / former Evidence Act Section 44 | Permits proof of fraud, collusion or incompetency of the court in the specified circumstances. |
Practical considerations
A party relying on an earlier judgment under Section 36 should identify the public issue, explain why it is material to the present enquiry, and produce the judgment in a legally admissible manner. The court may consider its contents alongside other evidence. This rule should not be confused with res judicata under Section 11 of the Code of Civil Procedure, 1908, which deals with a distinct bar against re-litigation when its legal conditions are met.
Frequently asked questions
What replaced Section 42 of the Indian Evidence Act?
Section 36 of the Bharatiya Sakshya Adhiniyam, 2023 is the corresponding provision.
Does an earlier judgment conclusively prove a public right?
No. Under Section 36, the judgment may be relevant but is not conclusive proof of what it states.
Can a judgment in a case involving different parties be relevant?
Yes, if it concerns a matter of public nature relevant to the enquiry, subject to the applicable rules of evidence and procedure.
Official legal references
Bharatiya Sakshya Adhiniyam, 2023 - official Act PDF
This article is for general legal information. The application of the law depends on the facts, applicable transitional provisions and judicial decisions.