Author Archives: sajikoduvath

Judicial Precedent and Res Judicata – a Couplet

Taken from: Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
Also Read:  Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.

Saji Koduvath, Advocate, Kottayam

Preface

No Binding Precedent if relevant statutory provision was Not considered; It Must be ‘Ratio Decidendi’ also.

Ratio Decidendi Is Binding Precedent: Mere Casual Expressions – Not of Much Avail.

  • Binding Judicial Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases. Ratio Decidendi is the binding precedent; Not  findings on facts or issues
  • Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been heard and finally decided. If only a finding is “Necessary”, then only it is “Directly and Substantially” in issue

Binding precedent pertains strictly to legal principles and technically binds courts, not parties. In any event, there will be no ‘binding precedent’ if the earlier decision was –

  • without taking into account the statutory provision or factual situation
  • wrong in law.

Ratio Decidendi is the binding precedent; Not  Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

  • “Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
  • (i) finding of facts;
  • (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
  • (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
  • Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

Binding Precedent- In Nutshell

No Binding Precedent if relevant STATUTORY PROVISION was Not considered. [Union of India v. Maniklal Banerjee, AIR 2006 SC 2844] 

Where no consideration was given to the question, the decision cannot be said to be binding; and precedents SUB SILENTIO – Without Arguments – are of NO MOMENT. [A-One Granites v. State of U.P., 2001-3 SCC 537] 
 
A decision is available as a precedent only if it DECIDES a QUESTION OF LAW. [State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489]. Not facts. [Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195] 

RATIO DECIDENDI is Binding Precedent: Mere Casual Expressions – Not of Much Avail.[ Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555; State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676; Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627; Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707). 

For Binding Precedent, finding  must be ‘RATIO DECIDENDI’ (necessary to the decision); and  Not obiter dicta. [Allen in ‘Law in the Making’; Quoted in: Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543; Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)]

Court’s order is binding on the parties under res judicata; the RATIO DECIDENDI is binding on other Courts as binding precedent. [The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519] 
 
What is of the essence in a decision is its ratio and not every observation found therein. [State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647; Union of India v. Dhanwanti Devi, 1996-6 SCC 44; Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) 

The doctrine of precedent mandates that an exposition of law must be followed and applied. [State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289]. 

Res judicata bars raising the same issue. Judicial precedent is not concerned with issues between parties. (Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9)

Res judicata pertains to the parties;  precedent refers to a binding declaration of law that applies to courts or authorities. [Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988]. 

A decision on the ‘construction of that document’ can operates as a judicial precedent against one though he was not a party to that litigation (Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481).

Res Judicata Binds Parties; Ratio Decidendi (as binding precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

  • “…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
  • (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

  • “There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
  • The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, Ori) 2007-104 CLT 737)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under:

  • “As between a decision which operates as res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Res judicata Apply parties, Precedent is binding declaration of law; 

Not open to Ignore the Judgment (Ratio Decidendi) of the Supreme Court

Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988, it is held by the Kerala High Court as under:

  • Typically, a statutory regulation can be challenged on two grounds: first, for violating fundamental rights, and second, for being inconsistent with the parent Act. Once the Supreme Court has dismissed a challenge to the regulation, any court bound by the declaration of law under Article 141 of the Constitution cannot revisit a binding judgment of the Supreme Court on different grounds. It is important to differentiate between precedent and res judicata. Res judicata pertains to the parties involved in a particular case, while precedent refers to a binding declaration of law that applies to courts or authorities and is independent of the rights and obligations of the parties involved.
  • In other words, precedent falls within the category of case law in the hierarchical system of adjudication and serves as a source of law that binds inferior authorities to the legal declarations made by superior authorities. The binding nature of precedent brings in certainty of law to be followed by all courts and authorities. In contrast, res judicata pertains to procedural rules that bind litigating parties to previous judgments on the same issue.
  • It is the ratio decidendi that determines the binding nature of a precedent, not the cause of action. …. The cause of action refers to the bundle of facts that give rise to a legal action, which is crucial in determining the applicability of the principles of res judicata but not necessarily on binding nature of precedent. Only the Supreme Court has the authority to revisit its own declared law; no other court can do so. The Supreme Court addressed this issue in Palitana Sugar Mills (P) Ltd. and Another v. State of Gujarat and Others [(2004) 12 SCC 645], where it stated in paragraph 62:
    • “62. It is well settled that the judgments of this Court are binding on all the authorities under Article (142*) 141 of the Constitution and it is not open to any authority to ignore a binding judgment of this Court on the ground that the full facts had not been placed before this Court and/or the judgment of this Court in the earlier proceedings had only collaterally or incidentally decided the issues raised in the show-cause notices. Such an attempt to belittle the judgments and the orders of this Court, to say the least, is plainly perverse and amounts to gross contempt of this Court. We are pained to say that the then Deputy Collector has scant respect for the orders passed by the Apex Court. (sic) ”

Interpretation of a Document can Be a Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

  • “Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.” (Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960  MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977  Ori  143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965  AIR AP 177)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as res judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

  • “Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down  as under:

  • “(23) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

No Binding precedent if relevant statutory provision was Not considered

A Full Bench of the Allahabad  HighmCourt, in  Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra : 1970 SCC OnLine All 193, observed as under:

  • “A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called ‘ratio decidendi’. Which is binding as a precedent. The other called ‘obiter dicta’ cannot be treated as a binding precedent though the opinion so expressed is entitled to respect.” (Quoted in Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)

Allen in ‘Law in the Making’ said as under:

  • “Any judgment of any Court is authoritative only as to that part of it, called the ‘ratio decidendi’, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ‘ratio decidendi’ was…………..Judicial opinions upon such matters, whether they be merely casual, or wholly gratuitous or (as is far more usual) of what may be called collateral relevance, are known as ‘obiter dicta or simply ‘dicta’, and it is extremely difficult to establish any standard of their relative weight.” (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543). (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543).

The Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743, quoted the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, with approval :

  • “54. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), ‘ratio decidendi’ is described as follows: “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

  • “It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

  • “(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT; it was held that decision was binding upon the parties, though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
  • There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.

Ratio decidendi literally means “reason for deciding”.

In B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480, it was observed that a decision is binding not because of its (final) conclusion but with regard to its ratio and the principle laid down therein.  (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

A Case is only an Authority for what it Actually Decides

In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, wherein after relying on British authorities it was held:

  • “13….A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495]:
  • “Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.”

Questions which are Essentially Questions of Fact, Cannot be Cited as Precedents

In State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489, it is laid down as under:

  • “A decision is available as a precedent only if it decides a question of law.”

In Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195, it is held as under:

  • “Learned counsel for the appellant cited before us a number of reported decisions of this Court bearing on the appreciation of circumstantial evidence. We need not refer to those authorities. It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts.” 

The Supreme Court (B.V. Nagarathna, J.)observed in Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under:

  • “22. Further, the precedential value of an order of the Supreme Court which is not preceded by a detailed judgment would be lacking inasmuch as an issue would not have been categorically dealt with. What is of essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made therein.”

A case is only an authority for what it decides, and not from what logically follows from it (Ram Krishan Ram Nath v. Janpad Sabha, AIR 1967 SC 1073)

Ratio Decidendi – Basis of Reasons and Principles Underlying a Decision

It is the discernable ratio decidendi which forms a precedent and not the final order in the judgment (Sanjay Singh v. Uttar Pradesh PSC, Allahabad, 2007-3 SCC 720).

The Supreme Court, in Krishena Kumar v. Union of India, 1990 (4) SCC 207, said as under::

  • “19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749 (HL)]. Sir Frederick Pollock has also said :
  • “Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

Decision Applicable Only to Facts Cannot be a Binding Precedent

The basis of reasons and principles underlying a decision is ratio decidendi. It is distinct from the ultimate relief granted in a given case. Therefore, the decision applicable only to the facts of the case cannot be treated as a binding precedent.

Ratio Decidendi Is Binding Precedent: Casual Words, Not of Much Avail

In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, it is pointed out as under:

  • “Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.”
  • (Quoted in: State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676;
  • Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627;
  • Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707)

A deliberate decision after hearing on a question constitute a precedent

A three Judge Bench of our Apex Court, in Union of India v. Dhanawanti Devi, (1996) 6 SCC 44. held as under:

  • “9. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates –
  • (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
  • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
  • (iii) judgment based on the combined effect of the above.
  • A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
  • 10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents……” (Quoted in: Vishal N.  Kalsaria v. Bank of India, 2016-3 SCC 762)

Law laid down by SC – if only there is a Speaking Order;  Not by Dismissal In Limine

It was added, in Secundrabad Club v. CIT – V, 17-08- 2023; 2023-457 ITR 263 (SC), as under:

  • “23. Another important principle to be borne in mind is that declaration of the law by the Supreme Court can be said to have been made only when it is contained in a speaking order, either expressly or by necessary implication and not by dismissal in limine.”

Law ‘Declared’, and ‘found or made’

While speaking about judicial precedents, in DTC v. DTC Mazdoor Congress Union, AIR 1991 SC 101, Mukherji, CJ., laid down that the expression ‘declared’ is wider than the words ‘found or made’. The latter expression involves the process, while the former expresses the result. (Referred to in: Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC).

Ratio Decidendi alone is Binding Precedent; It is statements of principles of law

The Supreme Court observed further in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC), as under

  • “13. It is a settled position of law that only the ratio decidendi of a judgment is binding as a precedent.”

B.V. Nagarathna, J. held (in Secundrabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) as under:

  • “According to the well-settled theory of precedents, every decision contains three basic ingredients:
  • .(i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts;
  • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
  • (iii) judgment based on the combined effect of (i) and (ii) above.
  • For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision, for, it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedent, ingredient (ii) is the vital element in the decision. This is the ratio decidendi. It is not everything said by a judge when giving a judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi.”

A “collateral or incidental” finding would not ordinarily be res judicata.

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350 the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision.

For Res Judicata – Adjudication of the Issue Material and Essential

In Sajjadanashin it is pointed out as under:

  • “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessary involved, the judgment is not conclusive on the question of ownership or title.”

Referring to Sajjadanashin Sayed, it is observed in Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884 that a material test to be applied is whether the court considered the adjudication of the issue material and essential for its decision.

  • (Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, is quoted and followed in: M.S. Ananthamurthy v. J. Manjula (Neutral Citation: 2025 INSC 273.)

Referring to Sajjadanashin Sayed it is observed in Union of India Vs. Vijay Krishna Uniyal, 2017-12 SCALE 704, that one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, AIR 2000 SC 1238, observed as under:

  • “Point No. 1:
  • 11. The words “collaterally” or “incidentally in issue” have come up for interpretation in several common law jurisdictions in the context of the principle of res judicata. While the principle has been accepted that matters collaterally or incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to this rule. The English, American, Australian and Indian Courts and Jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue can be res judicata in a later proceedings. There appears to be a common thread in the tests laid down in all these countries. We shall therefore refer to these developments.
  • 12. Matters Collaterally or incidentally in issue:
  • It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue.” If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only `collaterally or incidentally in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.
  • 13. As pointed out in Halsbury’s Laws of England (Vol. 16, Para 1538) (4th Ed.), the fundamental rule is that a judgment is not conclusive if any matter came collaterally in question [R. vs. Knaptoft Inhabitants, Heptulla Bros vs. Thakore; or if any matter was incidentally cognizable Sanders (otherwise Saunders) vs. Sanders (otherwise Saunders)].
  • 14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression collaterally or incidentally in issue implies that there is another matter which is directly and substantially in issue (Mulla, CPC 15th Ed. p. 104).
  • 15. Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts:
  • Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says (Vol. 16, Para 1538) (4th Ed.) that while the general principle is clear “difficulty arises in the application of the rule in determining in each case what was the point decided and what was the matter incidentally cognizable, and the opinion of Judges seems to have undergone some fluctuations.”
  • 16. Spencer Bower and Turner on The Doctrine of Res Judicata (2nd Ed, 1969) (p. 181) refer to the English and Australian experience and quota Dixon, J. of the Australian High Court in Blair v. Curran to say: “The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision on judgment, or necessarily involved in it as its legal justification or foundation, from matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation of a groundwork of the judgment.” The authors say that in order to understand with essential distinction, one has always to inquire with unrelenting severity – is the determination upon which it is sought to find an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. It is suggested by Dixon, J that even where this inquiry is answered satisfactorily, there is still another test to pass: viz. whether the determination is the immediate foundation” of the decision as opposed to merely “a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion.” It is well settled, say the above authors “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision.”

A Deliberate Judicial Decision Alone is Judicial Precedent

As regards binding precedent it is observed in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, as under:

  • “9…..It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates-
    • (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
    • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
    • (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides.
  • What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. “

Res Judicata: The Issue Should Have Been “Necessary to be Decided”

In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

  • “57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

A Compromise Decree is not a decision by the Court; No Res Judicata

In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court has laid down as under :

  • “A compromise decree is not a decision by the Court, it is the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide, anything. Nor can it be said that the decision of the Court was implicit in it.”
  • See also: Daryao v. State of UP, 1962- I SCR 574;
  • Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;
  • Jamia Masjid v. K. V.  Rudrappa, AIR 2021 SC 4523; 2022-9 SCC 225.

In Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd., AIR 1970 SC 406, it is held as under:

  • “A consent decree according to the decisions of this Court does not operate as res-judicata because a consent decree is merely the record of contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res-judicata only if there is an adjudication by the Court; the terms of section 11 of the Code leave no scope for a contrary view.”

Cardinal feature of Common Law – Stand by Precedent

In State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289, it is held as under:

  • 10. Time and again this Court has emphatically restated the essentials and principles of ‘precedent’ and of Stare Decisis which are a cardinal feature of the hierarchical character of all Common Law judicial systems. The doctrine of precedent mandates that an exposition of law must be followed and applied even by coordinate or co-equal Benches and certainly by all smaller Benches and subordinate courts. That is to say that a smaller and a later Bench has no freedom other than to apply the law laid down by the earlier and larger Bench; that is the law which is said to hold the field. Apart from Article 141, it is a policy of the courts to stand by precedent and not to disturb a settled point. The purpose of precedents is to bestow predictability on judicial decisions and it is beyond cavil that certainty in law is an essential ingredient of rule of law. A departure may only be made when a coordinate or co-equal Bench finds the previous decision to be of doubtful logic or efficacy and consequentially, its judicial conscience is so perturbed and aroused that it finds it impossible to follow the existing ratio. The Bench must then comply with the discipline of requesting the Hon’ble Chief Justice to constitute a larger Bench.”

Modern English Practice

In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, it is pointed out as under:

  • “47. Though English Courts in the past accepted the Blackstonian theory and though the House of Lords strictly adhered to the doctrine of ‘precedent’ in the earlier years, both the doctrines were practically given up by the “Practice Statement (Judicial precedent)” issued by the House of Lords, recorded in (1966) 1 WLR 1234. Lord Gardiner L.C., speaking for the House of Lords made the following observations;
  • “Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”

Article 141 in Constitution of India 141

Article 141 mandates the courts in India to follow the law declared by the Apex Court. It reads as under:

  • “Law declared by Supreme Court to be binding on all courts: The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

The enacted laws do not speak about binding judicial precedents. But, the common law expounds the principles thereon, following the principles adopted by English Courts. By virtue of this convention, the principle of law applied in an earlier case is followed in subsequent cases, and the decision of a larger bench is honoured by the smaller bench.

Article 141 declares that the law laid down by the Supreme Court of India will be a ‘Source of Law’.

Larger Bench Decision is binding on Bench of lesser strength

It is observed in Mary Pushpam v. Telvi Curusumary, AIR 2024 (SC) 714; 2024-3 SCC 224 (Vikram Nath, Rajesh Bindal, JJ.) as under:

  • “1. The rule of ‘Judicial Discipline and Propriety’ and the Doctrine of precedents has a merit of promoting certainty and consistency in judicial decisions providing assurance to individuals as to the consequences of their actions. The Constitution benches of this court have time and again reiterated the rules emerging from judicial Discipline. Accordingly, when a decision of a coordinate Bench of same High court is brought to the notice of the bench, it is to be respected and is binding subject to right of the bench of such co-equal quorum to take a different view and refer the question to a larger bench. It is the only course of action open to a bench of co-equal strength, when faced with the previous decision taken by a bench with same strength.”

The Apex Court referred the following decisions –

  • Kunhayammed v. State of Kerala, (2000) 6 SCC 359
  • Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673
  • State of Punjab , v. Devans Modern Breweries Ltd., (2004) 11 SCC 26

In Sita Soren v. Union of India, AIR 2024 SC 1701; 2024-5 SCC 629, it is pointed out as under:

  • “24. A decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench. In such situations, the case is placed before a bench of larger strength. [Central Board of Dawoodi Bohra Community vs. State of Maharashtra, (2005) 2 SCC 673, Para 12]”

Minority Decision may a binding precedent (when no disagreement by majority)

In Property Owners Association v. State of Maharashtra, 2024 INSC 835; 2024 KLT(Online) 2648; 2024 8 Supreme 387; 2024 0 Supreme(SC) 990, it is pointed out (in the Majority View: DY Chandrachud, CJI, Hrishikesh Roy, J.B. Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma, Augustine George Masih, JJ.- Minority, B.V. Nagarathna, Sudhanshu Dhulia, JJ.) as under:

  • “102. It must be noted, however, that there is a difference between whether an observation is a binding precedent and whether it is a position of law that may have persuasive value on subsequent benches. In the absence of disagreement by a majority of judges (either express or implied), nothing precludes subsequent benches of this Court from relying on observations made in a concurring opinion (on behalf of the minority of judges) which are not discussed by the other judges at all. It is assumed in such cases, that all judges on the bench have read the opinions of one another, and did not deem it necessary to either state their express disagreement with the opinion or lay down a different understanding of the proposition of law (implied disagreement).”

Are the Trial Courts bound by its Previous Decisions

No.

  • A Munsiff or a Subordinate Judge is not bound to follow his previous decision as a judicial precedent. Such rulings are at best persuasive, not obligatory.

Certainty demands Consistency

Certainty and consistency in judicial decisions are necessary for providing assurance to individuals as to the consequences of their actions. Applying this principle, a Munsiff or Sub-judge is bound to follow the principles he (or his predecessor in office) had adopted in a previous decision. But it is not a constitutional mandate. No common-aw doctrines also direct so. Still, when such a precedent (judgment or order) is placed either by producing the same in evidence or by pointing out the same in the argument of the case, judicial courtesy and comity require the Munsiff or the judge to explain reasons if he deviates from the earlier stance.

In Land Acquisition cases it is common that earlier decisions are cited for showing the reasonable compensation.

Also Read

•➧ Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.
             •➧ Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ Res Judicata and Judicial Precedent
             •➧ No Res judicata on Finding on Title in an Injunction Suit
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
          •➧ Res Judicata and Constructive Res Judicata
            •➧ Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?
             •➧Res Judicata: ‘Same issue’ must have been ‘Adjudicated’ in the former suit

End Notes:

Sec. 11 Civil Procedure Code, 1908, reads as under:

  • Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
  • Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
  • Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
  • Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
  • Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
  • Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
  • Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
  • Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
  • Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

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Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

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Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

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Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Relevance of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?

Saji Koduvath, Advocate, Kottayam.

The Answer is – No.

Abstract

  • The relevancy of a previous judgment (in a subsequent case) is governed by Sections 40 to 43 of the Indian Evidence Act, 1872.
  • Section 43, inter alia, permits the production of earlier judgments that are deemed “relevant under other provisions of this Act.”
  • There are divergent views on the applicability of Sections 5, 8, 11 and 13, Evidence Act, under this clause in Section 43.
    • First view—Sections 5, 8, 11 and 13 being delineate the general provisions, and the relevance of prior judgments is primarily governed by Sections 40 to 43, the previous judgments will not be liberally permitted (invoking the clause “relevant under some other provisions of this Act”).
    • Second view—The phrase “relevant under some other provisions of this Act” as stated in Section 43, must be interpreted to encompass its complete and comprehensive significance.
  • Differences of opinion also exist as to the admissibility of a judgment not inter parties, under Section 13.
  • The legitimate view, it appears, is the following –
    • (i) Previous judgments can be admitted in evidence (invoking the clause “relevant under some other provisions of this Act”) if they fall under Sections 5, 8, 11 and 13. Nevertheless, the admissibility of the previous judgments being essentially governed by Sections 40 to 43, they cannot be allowed to be freely imported, invoking the general provisions.
    • (ii) The probative value of the previous judgment has to be determined by the court, even if such a previous judgment is marked in evidence as ‘relevant’.
    • (iii) In any case, the use of the previous judgment is definitely relevant in certain contexts. For instance:
      • A motive for an offence (Section 8) – i.e., to see whether the judgment provoked anger in the accused.
      • The sentence or damages to be imposed – i.e., to see whether there would be double jeopardy.

Also Read

             •➧ Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ No Res judicata on Finding on Title in an Injunction Suit
             •➧ Res Judicata and Judicial Precedent
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
             •➧ Judicial Precedent and Res Judicata – a Couplet
             •➧ Res Judicata and Constructive Res Judicata
             •➧Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?
             •➧Res Judicata: ‘Same issue’ must have been ‘Adjudicated’ in the former suit

PART I

Relevancy of a Civil Case Judgment in a Criminal Case – Abstract Propositions

1. Independent evidence/finding needed.

  • M.S. Sheriff v. State of Madras, AIR 1954 SC 397 (Vivian Bose, J.)
  • State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87 (MB Shah, J.)
  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370  (G.P. Mathur, J.)
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765,
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

2. It is not correct to say – a judgment of a civil court shall be binding on the criminal court.

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)

3. There is neither any statutory nor any legal principle that findings recorded by the court, either in civil or criminal proceedings, shall be binding between the same parties (even) while dealing with the same subject-matter.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 (R.F. Nariman, J.)

4. Sections 41 to 43 of the Evidence Act deal with relevancy alone (Not conclusive except as provided in Section 41).

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713

5. Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

“Other Provisions of this Act” in S. 43 Will Not Cover S. 13

A three-Judge Bench, in State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Syed Murtaza Fazalali, A. Varadarajan, V. Balakrishna Eradi, JJ.) held as under:

  • “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 to make a particular document admissible. In other 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.“

Judgment not Inter Parties is Admissible under Section 13

But, a contra-view is taken in a Two-Judge Bench in Tirumala Tirupati Devsthanam v. K. M. Krishnaiah, AIR 1998 SC 1132; 1998 3 SCC 331 (S.P. Bharucha & M. Jagannadha Rao, JJ.), which reads as under:

  • “9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango & Ors., AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected.
  • Again B.K. Mukherjee, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram & Ors., AIR 1954 SC 606, held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’.
  • In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini, (1902) ILR 29 Cal. 190 (PC), that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh, 1895 ILR 22 Cal. 533 (PC), by Sir John Woodroffe in his commentary on the Evidence Act (1931, P 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder, AIR 1934 PC 157.”

Note:

  • 1. The apparent inconsistency between the two views remains unresolved, as the Supreme Court has yet to offer a definitive clarification addressing both views.
  • 2. It is seen that it is legitimate to follow Tirumala Tirupati Devsthanam v. K. M. Krishnaiah, AIR 1998 SC 1132, in a limited sphere, such as (i) to prove motive for an offence (Section 8) and (ii) in consideration of the sentence or damages to be imposed – i.e., to see whether there would be double jeopardy.

It is Not Correct – Civil Decisions bind Criminal Courts (and Converse)

Our Apex Court had (earlier) observed in V. M. Shah v. State of Maharashtra, (1995) 5 SCC 767, that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court. A two-judge bench, in KG Premshanker v. Inspector of Police, doubted the correctness of V. M. Shah case and required reconsideration by a larger Bench. Hence, in KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, the Three-Judge Bench (M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema, JJ.) overruled V. M. Shah v. State of Maharashtra, holding that the finding recorded by a criminal court stands superseded by the finding recorded by the civil court is not correct.

KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also considered Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694, wherein it was observed that the decisions of civil courts will be binding on criminal courts, but the converse is not true. KG Premshanker v. Inspector of Police, (2002) 8 SCC 87, also overruled Karam Chand Ganga Prasad.

Referring KG Premshanker v. Inspector of Police (2002) 8 SCC 87, it is held in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528 (Mukundakam Sharma, SB Sinha, JJ.) as under:

  • “It is, however, significant to notice a decision of this Court in M/s Karam Chand Ganga Prasad & Anr. etc. v. Union of India & Ors. [(1970) 3 SCC 694], wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts but the converse is not true, was overruled, stating:
    • “33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
  • 11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that 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 provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.”

No Legal Principle – Findings of Civil Court bind  Cril. Court

Except as provided in Sections 41 to 43 of the Evidence Act, there is no general legal principle that findings of a civil court are binding on a criminal court, and vice versa.

In Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited (Rohinton Fali Nariman, Navin Sinha, Indira Banerjee, JJ.) 2021-4 SCC 713, the principles in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, are followed and held as under:

  • “18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.”

It is further pointed out in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 –

  • “Moreover, the judgment, order or decree passed in previous civil 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. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.”

No Legal Principle – Previous Findings are treated as Final

Standards of proof required in civil and criminal proceedings are entirely different

Even if a document or fact is relevant under certain provisions of the Evidence Act, it doesn’t mean that it will be taken as a binding document or that it is substantive evidence, because its probative value may be less or nil.

In Iqbal Singh Marwah v. Meenakshi Marwah (R.C.Lahoti CJI, B.N. Agrawal, Hotoi Khetoho Sema, G.P. Mathur & P.K. Balasubramanyan, JJ.), 2005-4 SCC 370, (relying inter alia on M.S. Sheriff v. State of Madras, AIR 1954 SC 397) it was held as under:

  • “32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standards of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”

Also Read:

Judgment of a Court is relevant if only conditions u/s 40 to 43 are satisfied

The position of law is laid down in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, as under:

  • “30. What emerges from the aforesaid discussion is –
  • (1) the previous judgment which is final can be relied upon as provided under 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.P.C. 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;
  • (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.”

Court has to Decide – To what Extent a Previous Judgment is binding

K.G. Premshanker v. Inspector of Police continued as under:

  • “31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein.
  • Take for illustration, in a case of alleged trespass by ‘A’ on ‘B’s property, ‘B’ filed a suit for declaration of its title and to recover possession from ‘A’ and suit is decreed. Thereafter, in a criminal prosecution by ‘B’ against ‘A’ for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as possession of ‘B’ over the property. In such case, ‘A’ may be convicted for trespass. The illustration to Section 42** which is quoted above makes the position clear.
  • Hence, in each and every case, first question which would require consideration is whether judgment, order or decree is relevant?, if relevant its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case.
  • 32. In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff case would be binding, wherein it has been specifically held that no hard-and-fast rule can be laid down and that possibility of conflicting decision in civil and criminal courts is not a relevant consideration. The law envisages “such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for limited purpose such as sentence or damages”.
    • **Note: Section 42 Evidence Act pertains to public right. Illustration also makes it clear. It is obvious that the Apex Court referred to it only to show that the earlier decision may be relevant – to show “motive or as a fact in issue” (under Section 43).
    • That is, where the prosecution case is that ‘the civil court decree made the accused increase enmity towards the victim’, the previous civil court decision may be relevant under “some other provision” stated in Section 43 (as “motive or as a fact in issue“).
  • Section 42 Evidence Act reads as under:
    • “42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.
    • Illustration:
    • A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.
    • The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.”

Case to be determined on Evidence, not on Previous Judgment

In Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463, 2009 (11) SCC 545, it is pointed out that the observation in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] that a judgment of a civil court shall be binding on the criminal court (but the converse is not true) may not be entirely correct being in conflict with a Three-Judge Bench decision of the Apex Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87]. It is observed in Seth Ramdayal Jat v. Laxmi Prasad as under:

  • “Mr. Sharma also relies upon a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] to contend that a judgment of a civil court shall be binding on the criminal court but the converse is not true. Therein it was held:
    • “(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.”
  • With respect, the ratio laid down therein may not be entirely correct being in conflict with a Three-Judge Bench decision of this Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87].”

A judgment in rem (Section 43) is conclusive in criminal and civil proceedings

In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528, it is held as under:

  • “Rendition of a final judgment which would be binding on the whole world being conclusive in nature shall take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding.” (Surinder Kumar v. Gian Chand, AIR 1957 SC 875, is relied on)

Civil or Criminal proceedings be stayed – Depends upon each case

In M.S. Sheriff v. State of Madras, AIR 1954 SC 397, the Constitution Bench considered whether a civil suit or a criminal case should be stayed in the event both are pending; and it was opined that the criminal matter should be given precedence.

 In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, AIR 2008 SC 1884, it was held as under:

  • “13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.” (Quoted in: Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)

A Dissonant Note

The Kerala High Court, in Mathew Kunju Mathew v. K.V. Kuriakose, ILR 2024-1 (Ker) 721; 2024-1 KLT 588, proceeded to answer the following question in the affirmative.

  • “12. Here the interesting question is whether a criminal court is bound by the decree and judgment passed by a competent civil court taking shelter under Sections 11 and 43 of the Indian Evidence Act.”

In Mathew Kunju Mathew v.  K. V.  Kuriakose, High Court said –

  • ‘If the criminal case and the civil proceeding are for the same cause, judgment of the Civil Court would be relevant, if conditions stipulated in S.40 to 43 are satisfied.’

Inaccurate Reading of K.G. Premshanker by the Kerala High Court

K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87, is interpreted in (i) Mohandas  v. P Abdul Azeez, 2011 (3) KHC 41: 2011 (3) KLJ 142, and (ii) Mathew Kunju Mathew v.  K. V.  Kuriakose, ILR 2024-1 (Ker) 721; 2024-1 KLT 588, giving emphasis to the following observation in K.G. Premshanker v. Inspector of Police –

  • “Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein.
  • In other words, the Court laid down that the issue will depend upon facts of each case.”

In Mohandas  v. P Abdul Azeez (quoted and followed in Mathew Kunju Mathew v.  K. V.  Kuriakose) it is stated as under:

  • “It is trite that if the criminal case and the civil proceeding are for the same cause, judgment of the Civil Court would be relevant, if conditions stipulated in S.40 to 43 are satisfied. It has been so held by a three Judge Bench of the Apex Court in Prem Sankar v. I.G. of Police, 2002 KHC 792 : 2002 (3) KLT 389 (SC) : ILR 2003 (1) Ker. 153 : AIR 2002 SC 3372 : 2002 (8) SCC 87 : 2002 CriLJ 4343.”

Technically, the observation may be accurate; however, within the context in which it is employed (to determine whether civil court decision binds criminal case), it becomes unsuitable. These decisions seem to be in direct conflict with the principles laid down in –

  • the Five Judge Bench decision in Iqbal Singh Marwah v. Meenakshi Marwah (G.P. Mathur, J.), 2005-4 SCC 370
  • the Three Judge Bench decision in K.G. Premshanker v. Inspector of Police (2002) 8 SCC 87 (M.B. Shah, J.) and
  • Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463, 2009 (11) SCC 545 (S.B. Sinha, J.).

Sections 11 and 13, Evidence Act

Sections 11 and 13 of the Evidence Act read as under:

  • “11. When facts not otherwise relevant become relevant :(1) if they are inconsistent with any fact in issue or relevant fact. (2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.”
  • 13. Facts relevant when right or custom is in question. Where the question is as to the existence of any right or custom, the following facts are relevant –
  • (a) Any transaction by which the right or custom, in question, was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
  • (b) Particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.
  • Illustration
  • The question is whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of right was stopped by A’s neighbours, are relevant facts.

Sections 41 – 43, Evidence Act

Section 40, Evidence Act reads as under:

  • “40. Previous judgments relevant to bar a second suit or trial. The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.”

Section 41 reads thus:

  • “41. Relevancy of certain judgments in probate, etc., jurisdiction. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Section 42 reads:

  • “42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.”
  • Illustration:
  • A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.
  • The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.

Section 43, Evidence Act reads as under:

  • 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 provisions of this Act.
  • Illustrations
  • .(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.
  • (b) A prosecutes B for adultery with C, A’s wife. B denies that C is A’s wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife. The judgment against B is irrelevant as against C.
  • (c) A prosecutes B for stealing a cow from him, B, is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
  • (d) A has obtained a decree for the possession of land against B, C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime. 1[(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
  • (f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue because the existence of the earlier Judgment in the civil case showed that ‘motive’ under Section 8 from the latter crime; in (e), relevancy is accepted because it is a ‘fact in issue’ in the latter case; in (f) relevancy is accepted because the earlier judgment is evidence of motive under Section 8 in the latter case.

Conclusion

Section 43 of the Indian Evidence Act reflects the policy of law adopted by Indian courts. It mandates independent findings in civil and criminal proceedings even if they arise from the same subject matter—such as a cheque bouncing or forging a document.  Sections 40 to 43 guard against substituting the adjudication by the courts with the findings of a parallel civil or criminal proceeding.

PART II

What are “Relevant Under Some Other Provisions of this Act” in Sec. 43

Following provisions are pointed out frequently, in this regard –

  • Sec. 5 (Facts in issue);
  • Sec. 8 (which refers to motive, preparation and previous or subsequent conduct);
  • Sec. 11 (which says when facts not otherwise relevant become relevant);
  • Sec. 13 (when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant),
  • Sec. 54 Explanation (2), when a previous conviction is relevant as evidence of bad character), etc.
  • Sec. 58 (Admitted Facts)

Disputes of Title, be adjudicated in Civil Procedure

In Smt. Janak Vohra v. DDA, 103-2003-DLT 789, it was held that in case of disputed questions of title, and mutation being asked for, it is appropriate that the disputes of title be adjudicated in appropriate civil procedure and no direction be issued to mutate the property in the name of a party. (Referred to in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)

Land Acquisition judgments, not inter partes, Relevant under S. 11 and 13

In The Land Acquisition Officer, City Improvement Trust Board v. H. Narayana, 1976 – 4 SCC 9; AIR 1976 SC 2403 our Apex Court approved the view that in land acquisition cases judgments, not inter partes, are relevant, under Sec. 11 and 13 Evidence Act, if such judgments relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.

Order directed rectification of Trust Deed Relevant under Sec. 11

In Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349, it was held that the Order that directed rectification of Trust Deed would be relevant under Sec. 11 Evidence Act.

Judgment not inter partes admissible to find what lands involved

In State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118, our Apex Court approved the view of the Calcutta High Court as under:

  • “129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes 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 partes 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.’
  • 130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.” (Quoted in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 SCALE. 367)

Criminal proceeding will have precedence over the Civil proceeding

In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528, it is held as under:

  • “10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.” (relied on: M.S. Sheriff v. State of Madras, AIR 1954 SC 397.)

PART III

Binding Judicial Precedent and Res Judicata – a Couplet

Binding Judicial Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases. It is distinct from Res Judicata.

  • Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been finally decided.
  • Binding Precedent pertains strictly to legal principles and technically binds courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

  • without taking into account the statutory provision or factual situation
  • wrong in law.

Ratio Decidendi is the Binding Precedent; Not  Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

  • “Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
  • (i) finding of facts;
  • (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
  • (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
  • Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

A deliberate judicial decision alone is Judicial Precedent

As regards binding precedent it is observed in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, as under:

  • “9…..It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates-
    • (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
    • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
    • (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides.
  • What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi. “

Res Judicata Binds Parties; Ratio Decidendi (as Binding Precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

  • “…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
  • (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of res judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

  • “There is an essential difference between res judicata, estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
  • The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under:

  • “As between a decision which operates a s res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Interpretation of a Document can Be A Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

  • “Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.” (Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960  MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977  Ori  143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965  AIR AP 177)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as Res Judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

  • “Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down  as under:

  • “(23) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

No Binding Precedent if relevant statutory provision was Not considered

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

  • “It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

  • “(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT , it was held that decision was binding upon the parties though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
  • There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

Modern English Practice

In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, it is pointed out as under:

  • “47. Though English Courts in the past accepted the Blackstonian theory and though the House of Lords strictly adhered to the doctrine of ‘precedent’ in the earlier years, both the doctrines were practically given up by the “Practice Statement (Judicial Precedent)” issued by the House of Lords, recorded in (1966) 1 WLR 1234. Lord Gardiner L.C., speaking for the House of Lords made the following observations;
  • “Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.”

Article 141 in Constitution of India 141

Article 141 mandates the courts in India to follow the law declared by the Apex Court. It reads as under:

  • “Law declared by Supreme Court to be binding on all courts: The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

The enacted laws do not speak about binding judicial precedents. But, the common law expounds the principles thereon, following the principles adopted by English Courts. By virtue of this convention, the principle of law applied in an earlier case is followed in subsequent cases, and the decision of a larger bench is honoured by the smaller bench.

Article 141 declares that the law laid down by the Supreme Court of India will be a ‘Source of Law’.

Larger Bench Decision is Binding on Bench of lesser strength

It is observed in Mary Pushpam v. Telvi Curusumary, AIR 2024 (SC) 714; 2024-3 SCC 224 (Vikram Nath, Rajesh Bindal, JJ.) as under:

  • “1. The rule of ‘Judicial Discipline and Propriety’ and the Doctrine of precedents has a merit of promoting certainty and consistency in judicial decisions providing assurance to individuals as to the consequences of their actions. The Constitution benches of this court have time and again reiterated the rules emerging from judicial Discipline. Accordingly, when a decision of a coordinate Bench of same High court is brought to the notice of the bench, it is to be respected and is binding subject to right of the bench of such co-equal quorum to take a different view and refer the question to a larger bench. It is the only course of action open to a bench of co-equal strength, when faced with the previous decision taken by a bench with same strength.”

The Apex Court referred the following decisions –

  • Kunhayammed v. State of Kerala, (2000) 6 SCC 359
  • Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673
  • State of Punjab , v. Devans Modern Breweries Ltd., (2004) 11 SCC 26

In Sita Soren v. Union of India, AIR 2024 SC 1701; 2024-5 SCC 629, it is pointed out as under:

  • “24. A decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser strength cannot disagree with or dissent from the view of the law taken by the bench of larger strength. However, a bench of the same strength can question the correctness of a decision rendered by a co-ordinate bench. In such situations, the case is placed before a bench of larger strength. [Central Board of Dawoodi Bohra Community vs. State of Maharashtra, (2005) 2 SCC 673, Para 12]”

Minority Decision may a binding precedent (when no disagreement by majority)

In Property Owners Association v. State of Maharashtra, 2024 INSC 835; 2024 KLT(Online) 2648; 2024 8 Supreme 387; 2024 0 Supreme(SC) 990, it is pointed out (in the Majority View: DY Chandrachud, CJI, Hrishikesh Roy, J.B. Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma, Augustine George Masih, JJ.- Minority, B.V. Nagarathna, Sudhanshu Dhulia, JJ.) as under:

  • “102. It must be noted, however, that there is a difference between whether an observation is a binding precedent and whether it is a position of law that may have persuasive value on subsequent benches. In the absence of disagreement by a majority of judges (either express or implied), nothing precludes subsequent benches of this Court from relying on observations made in a concurring opinion (on behalf of the minority of judges) which are not discussed by the other judges at all. It is assumed in such cases, that all judges on the bench have read the opinions of one another, and did not deem it necessary to either state their express disagreement with the opinion or lay down a different understanding of the proposition of law (implied disagreement).”

End Notes:

Sec. 11 Civil Procedure Code, 1908, reads as under:

  • Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
  • Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
  • Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
  • Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
  • Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
  • Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
  • Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
  • Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
  • Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

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Res Judicata and Judicial Precedent

Taken from: Res Judicata and Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam.

Res Judicata When Attracted

Res Judicata applies when the ‘matter is decided’.

Core Ingredients:
•➧ The matter in issue has been an issue in a former suit.

Other Requirements
•➧ (i) Matter in issue directly and substantially same; Same Parties, (ii) Heard and finally decided, and (iii) Decision by a competent court.
•➧ Sufficient pleading should have been raised

Other Settled Positions
•➧ The issue should have been necessary to be decided; an incidental finding will not constitute res judicata.
•➧ No res judicata if the ultimate decision – suit was not maintainable.
•➧ No res judicata on adverse finding against whom the suit is ultimately decided.
•➧ Former decision was too perverse.  

Other Concluded Points
•➧ Findings on several grounds. In the appeal, only one ground was considered. Res judicata on that one ground alone.
•➧ Different causes of action, as in an injunction suit or in an eviction suit.

Precedents – only if they decide a question of law

              •➧ A Case is only an Authority for what it Actually Decides.
              •➧ Decision Applicable Only to Facts Cannot be a Binding Precedent.
              •➧ Binding Precedent Helps in Promoting Certainty and Consistency.
              •➧ A decision is available as a precedent only if it decides a question of law.
              •➧ An order made merely to dispose of the case cannot have the value or effect of a binding precedent.
              •➧ The precedential value is attached only to orders which are preceded by a detailed judgment.

Ratio Decidendi alone is Binding Precedent 

               •➧ Ratio decidendi alone is the Binding Precedent.
               •➧ Ratio decidendi is a statement of principles of law.
               •➧ Ratio decidendi is the vital element in the decision.
               •➧ Ratio decidendi literally means “reason for deciding”.
               •➧ Ratio decidendi is the essence, and not every observation.
               •➧Ratio decidendi is a declaration of law in a speaking order.
              •➧ Ratio decidendi is the Legal Principle Guiding the Decision.
               •➧ Ratio decidendi alone binds under Article 141 of the Constitution. 
              •➧ What is binding is discernible Ratio and the Principle, not the Conclusion.
             •➧ A case is only an authority for what it decides, and not for what logically follows from it.
              •➧ No Binding Precedent if a decision is without taking into account the statutory provision or if it is wrong in law.
              •➧ Ratio decidendi Is Binding Precedent: Mere Casual Expressions – Not of Much Avail
             •➧ It is important to read and analyse the Entire Judgment, and the ratio decidendi is to be isolated.
              •➧ Words in a Judgment are Not to be Interpreted as a Statute; Words in it are Not to be Taken Literally.
              •➧ The abstract ratio decidendi (ascertained on a consideration of the judgment)  alone has the force of law.
             •➧ For the Legal Principles Guiding the Decision constitute ‘Ratio Decidendi’, it is always necessary to see what the facts were.

Introduction.

  • ‘Res’, in Latin, means a thing or matter; and
  •  ‘Judicata’ means decided or judged.

Thus, Res Judicata applies when the ‘matter is decided’. It is based on the public policy of finality and conclusiveness of judicial decisions; that is, one should not be tried twice for the same cause or a matter that has been directly and substantially in issue in an earlier suit.

  • Sec. 11 of the Code of Civil Procedure, 1908, elucidates this principle.

Sec. 11, Civil Procedure Code, 1908, reads as under:

“Res Judicata – No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” … (Explanations I to VIII)

Binding Judicial Precedent and Res Judicata – a Couplet

Binding Judicial Precedent refers to a judicial rule or principle established in an earlier binding decision that must be followed in subsequent similar cases.

  • Res Judicata applies to findings of both law and fact. It bars the same parties from re-litigating issues that have already been finally decided.
  • Binding Precedent pertains strictly to legal principles and technically binds courts, not parties.

No ‘Binding Precedent’ if earlier decision was –

  • without taking into account the statutory provision or factual situation
  • wrong in law.

Binding Precedent- In Nutshell

No Binding Precedent if relevant STATUTORY PROVISION was Not considered. [Union of India v. Maniklal Banerjee, AIR 2006 SC 2844] 

Where no consideration was given to the question, the decision cannot be said to be binding; and precedents SUB SILENTIO – Without Arguments – are of NO MOMENT. [A-One Granites v. State of U.P., 2001-3 SCC 537] 
 
A decision is available as a precedent only if it DECIDES a QUESTION OF LAW. [State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489]. Not facts. [Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195] 

RATIO DECIDENDI is Binding Precedent: Mere Casual Expressions – Not of Much Avail.[ Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555; State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676; Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627; Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707). 

For Binding Precedent, finding must be ‘RATIO DECIDENDI’ (necessary to the decision), and  Not obiter dicta. [Allen in ‘Law in the Making’; Quoted in: Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543; Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)]

Court’s order is binding on the parties under res judicata; the RATIO DECIDENDI is binding on other Courts as binding precedent. [The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519] 
 
What is of the essence in a decision is its ratio and not every observation found therein. [State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647; Union of India v. Dhanwanti Devi, 1996-6 SCC 44; Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC) 

The doctrine of precedent mandates that an exposition of law must be followed and applied. [State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289]. 

Res judicata bars raising the same issue. Judicial precedent is not concerned with issues between parties. (Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9)

Res judicata pertains to the parties;  precedent refers to a binding declaration of law that applies to courts or authorities. [Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988]. 

A decision on the ‘construction of that document’ can operates as a judicial precedent against one though he was not a party to that litigation (Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481).

Ratio Decidendi is the Binding Precedent; Not  Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

  • “Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
  • (i) finding of facts;
  • (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
  • (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
  • Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

Ratio Decidendi Is Binding Precedent: Casual Words, Not of Much Avail

In Girnar Traders v. State of Maharashtra, AIR 2007 SC 3180; (2007) 7 SCC 555, pointing out – the “observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as part of the ratio decidendi”, it is laid down as under:

  • “Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.”
  • (Quoted in: State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676;
  • Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627;
  • Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707)

Res Judicata Binds Parties; Ratio Decidendi (as Binding Precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

  • “…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
  • (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of res judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

  • “There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
  • The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under :

  • “As between a decision which operates a s res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Interpretation of a Document can Be A Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

  • “Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.” (Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960  MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977  Ori  143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965  AIR AP 177)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as Res Judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

  • “Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down  as under:

  • “(23) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

No Binding Precedent if Relevant statutory provision was Not considered

A Full Bench of the Allahabad  HighmCourt, in  Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra : 1970 SCC OnLine All 193, observed as under:

  • “A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called ‘ratio decidendi’. Which is binding as a precedent. The other called ‘obiter dicta’ cannot be treated as a binding precedent though the opinion so expressed is entitled to respect.” (Quoted in Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)

The Supreme Court in Jayant Verma v. Union of India, (2018) 4 SCC 743, quoted the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, with approval :

  • “54. This question is answered by referring to authoritative works and judgments of this Court. In Precedent in English Law by Cross and Harris (4th edn.), ‘ratio decidendi’ is described as follows: “The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

Allen in ‘Law in the Making’ said as under:

  • “Any judgment of any Court is authoritative only as to that part of it, called the ‘ratio decidendi’, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ‘ratio decidendi’ was…………..Judicial opinions upon such matters, whether they be merely casual, or wholly gratuitous or (as is far more usual) of what may be called collateral relevance, are known as ‘obiter dicta or simply ‘dicta’, and it is extremely difficult to establish any standard of their relative weight.” (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543). (Quoted in : Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543).

In State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, wherein after relying on British authorities it was held:

  • “13….A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495]:
  • “Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.”

The Supreme Court, in Krishena Kumar v. Union of India, 1990 (4) SCC 207, said as under::

  • “19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain “propositions wider than the case itself required”. This was what Lord Selborne said in Caledonian Railway Co. v. Walker’s Trustees [(1882) 7 App Cas 259 : 46 LT 826 (HL)] and Lord Halsbury in Quinn v. Leathem [1901 AC 495, 502 : 17 TLR 749 (HL)]. Sir Frederick Pollock has also said :
  • “Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.”

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

  • “It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

  • “(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT , it was held that decision was binding upon the parties though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
  • There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

If only finding is “Necessary”, then only it is “Directly and Substantially” in issue

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350 the Supreme Court held that to attract res judicata on an earlier finding, the matter must have been directly and substantially in issue and that the finding on an issue came “collaterally or incidentally” would not ordinarily be res judicata. It was pointed out that if only the issue was “necessary” to be decided for adjudicating on the principal issue and had actually been decided, then only it would have to be treated as “directly and substantially” in issue; and that it is also necessary that the judgment was in fact based upon that decision. Referring to Sajjadanashin Sayed, it is observed in Nand Ram v. Jagdish Prasad: AIR  2020 SC 1884 that a material test to be applied is whether the court considered the adjudication of the issue material and essential for its decision.

  • (Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, is quoted and followed in: M.S. Ananthamurthy v. J. Manjula (Neutral Citation: 2025 INSC 273)

Referring Sajjadanashin Sayed it is observed in Union of India Vs. Vijay Krishna Uniyal, 2017-12 SCALE 704, that one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue.

A deliberate decision after hearing on a question constitute a precedent

A three Judge Bench of our Apex Court, in Union of India v. Dhanawanti Devi, (1996) 6 SCC 44. held as under:

  • “9. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates –
  • (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
  • (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
  • (iii) judgment based on the combined effect of the above.
  • A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
  • 10. Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents……” (Quoted in: Vishal N.  Kalsaria v. Bank of India, 2016-3 SCC 762)

Constructive Res-Judicata: For Not Making Whole Pleadings

Explanation IV of Sec. 11 CPC brings-forth the bar on ‘constructive res judicata’. It sounds that the parties to the litigation should bring their whole case before the court in a candid manner. To attract the contention as to bar on constructive res judicata it must be shown that the particular matter in issue or ground must have been a matter which ‘might and ought’ to have raised as a  point in the former suit.

The majority view authored by Justice Untwalia in a full bench decision in Baijnath Prasad Sah vs. Ramphal Sahni (AIR 1962 Pat 72) examined the scope of ‘might and ought’ in the Explanation IV of Sec. 11 CPC and explained as under:

  • “If a party takes an objection at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at the same stage, it must be deemed the Court has adjudicated upon the other objection also and has held against it. This principle of constructive res judicata has been extended further. If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it. Though a transaction is void if a certain provision of law applies, it is for the court to decide whether that provision is applicable. Once a competent court has given a decision, holding expressly or by implication, that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. So also if an order of the court is deemed to have decided the question, the order is binding upon the parties.” Quoted in: Bhanu Shankar Raikwar Vs. Vijay Shankar Raikwar: 2018-3 MPLJ 569

From the above, it is clear that constructive res judicata is invited in the following two situations:

  • Out of wilful act: If a party takes a particular objection on a specific matter or allegation at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at that stage.
  • Out of tacit or implicit act: If a party has (i) knowledge of a proceeding, and (ii) having had an opportunity to raise a particular objection, omits to do so; that is, tacitly or implicitly omits when it might and ought to have done.

It is held in Shankara Co-op Housing Society Ltd. v. M. Prabhakar, AIR 2011 SC 2161; (2011) 5 SCC 607, as under:

  • “77. In the present case, it is admitted fact that when the contesting Respondents filed W.P. No. 1051 of 1966, the ground of non-compliance of statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the notification dated 11.12.1952 issued under the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the Petitioners therein to raise that ground and answer the same, since the same is hit by the principles analogous to constructive res judicata.”

No Res Judicata by Implied/ Incidental Finding

There should be a specific and express finding on a specific issue in the earlier suit, for invoking res judicata. Constructive res judicata is an exception to the general rule.  Explanation IV of S. 11, CPC, lays down that res judicata may be deemed ‘beyond findings’.

Though res judicata may arise on an implied finding, it does not dehors the proposition that pleadings are the decisive factor for res judicata. It is held in Nikunja Behari Das v. Jatindra Nath Kar, AIR 1956 Cal 613, as under :

  • “A decision by necessary implication is as much res judicata as an express decision. That this is so in the case where Explanation IV of S. 11, Civil Procedure Code, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have always held that the principle of res judicata is applicable.” [Quoted in: Globe Publications Vs. Madan Gopal: AIR 1996 P&H 115]

Referring Greenhalgh v. Mallard (1576 ER 123) the Supreme Court explained in the State of UP v. Nawab Hussain (AIR 1969 SC 1256) that if a person is allowed to choose one cause of action from two or more causes of action from the same set of facts he would not be allowed to choose one at a time and to reserve the other for subsequent litigation. It amounts to abuse of process of the court.

In Forward Construction Co. v. Prabhat Mandal, Andheri (AIR 1986 SC 391) the Supreme Court observed the scope of Explanation IV to Section 11 of CPC as under:

  • “An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided.”

In Neelima Srivastava v. State of Uttar Pradesh, AIR 2021 SC 3884: (2021) 17 SCC 693, our Apex Court reiterated that it is not permissible for the parties to reopen the concluded judgments of the Court. The Court said as follows:

  • “30. It becomes absolutely clear from the above clarification that earlier decisions running counter to the principles settled in the decision of Umadevi (Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1) will not be treated as precedents. It cannot mean that the judgment of a competent Court delivered prior to the decision in Umadevi (3) and which has attained finality and is binding inter se between the parties need not be implemented. Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught. There is a distinction between over-ruling a principle and reversal of the judgment. The judgment in question itself has to be assailed and got rid of in a manner known to or recognized by law. Mere over-ruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties.
  • 32. … It is a well settled principle of law that a Letters Patent Appeal which is in continuation of a Writ Petition cannot be filed collaterally to set aside the judgment of the same High Court rendered in an earlier round of litigation ignoring the principles of res-judicata and doctrine of finality.
  • 35. Thus, it is very well-settled that it is not permissible for the parties to reopen the concluded judgments of the court as the same may not only tantamount to an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice.” (Quoted in: Reddy Enterprises, Vijayawada v. Appellate Authority & Additional Commissioner (ST) Vijayawada, 2024-5 ALD 452)

.Also read:  

             •➧ Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion.
             •➧ Relevancy of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?
             •➧ Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment Does Not Bind Criminal Court’.
             •➧ Cheating and Breach of Contract: Distinction lies in Fraudulent Intention ‘at the time of Promise’.  No Criminal Case endures on a Dispute Essentially Civil in Nature.
             •➧ No Res judicata on Finding on Title in an Injunction Suit
             •➧ What are “Relevant Under Some Other Provisions of this Act” in Sec. 43?
             •➧ Judicial Precedent and Res Judicata – a Couplet
             •➧ Res Judicata and Constructive Res Judicata
             •➧ Alternative Pleadings on Title and Adverse Possession: Mutually Inconsistent or Mutually Destructive?

Res Judicata: The issue should have been necessary to be decided

In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

  • “57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

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Asian Paints Limited v. Ram Babu, 2025 INSC 828 – ‘Victim’ Can File an Appeal in a Criminal Case

Saji Koduvath, Advocate, Kottayam.

Abstract

In criminal cases, the ‘victim’ (injured person) can file an Appeal against the acquittal of the accused, even though the victim is not the complainant.

Appeal by a Victim in a Criminal Case

Relevant provisions in the Criminal Procedure Code, 1973 relating to Appeals in Criminal Cases are the following:  

  • Section 2(wa). Definitions “victim” –
  • Section 372. No appeal to lie unless otherwise provided
  • Note: Proviso to Sec. 372 says – ‘victim shall have a right to prefer an appeal’.
  • Section 374. Appeals from convictions
  • Section 378. Appeal in case of acquittal

Asian Paints Limited v. Ram Babu, on 14 July 2025

The recent decision of the Supreme Court of India, Asian Paints Limited v. Ram Babu, 2025 INSC 828 (Prashant Kumar Mishra, Ahsanuddin Amanullah, JJ.) considered the relevant provisions relating to appeals in Criminal cases and delivered a noticeable decision. It affirmed the following three earlier decisions:

  • Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752 (3-Judge Bench, by a majority),
  • Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321,
  • Mahabir v State of Haryana, 2025 SCC OnLine SC 184.

Findings in Asian Paints Limited v. Ram Babu, 2025 INSC 828, in Nutshell

The Apex Court held in Asian Paints Limited v. Ram Babu, 2025 INSC 828, in a nutshell, that it is quite clear, based on the plain language of the law (Sec. 2(wa) read with proviso to 372 CrPC)–

  • a ‘victim’ would be entitled to file an appeal against any order acquitting the accused (or convicting for a lesser offence or imposing inadequate compensation).

Impugned View of the High Court (Set Aside by the Apex Court)

The impugned view of the High Court (set aside by the Apex Court) was that the ‘complainant’ who actually filed the written complaint alone can maintain an appeal as a ‘victim’, and that the ‘complainant’ in a case instituted upon a police report could file appeal only after seeking the leave of the High Court invoking the provisions of Section 378(3) of the CrPC.

The High Court had held as under:

  • ‘This is a case instituted upon a police report and only in cases instituted upon private complaint, leave to appeal under Section 378(4) of Cr.P.C. is maintainable. Therefore, leave to appeal against order of acquittal in appeal is also not maintainable in the instant case.’

Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court quoted and followed its earlier decision in Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321. It reads as under:

  • ‘23. A “victim” within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to he heard at every step post the occurrence of an offence. Such a “victim” has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that “victim” and “complainant/informant” are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a “victim”, for even a stranger to the act of crime can be an “informant”, and similarly, a “victim” need not be the complainant or informant of a felony.’

Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752,

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court also followed Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752. It has been held by a 3-Judge Bench, by a majority of 2:1, that a victim, as defined in Section 2(wa) of the CrPC, would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It is held as under:

  • “73. In our opinion, the proviso to Section 372 CrPC must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29-11-1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
  • “4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
  • 5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
  • 6.The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
  • Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
  • Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
  • Providing proper assistance to victims throughout the legal process;
  • Taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
  • Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
  • 7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilised, where appropriate, to facilitate conciliation and redress for victims.”
  • 76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 CrPC is concerned.”

Mahabir v State of Haryana, 2025 SCC OnLine SC 184

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court quoted the following from  Mahabir v State of Haryana, 2025 SCC OnLine SC 184, where it isobserved as under:

  • “53. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, i.e., that a victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. The plain reading of the statement of objects and reasons for introducing the proviso to Section 372 CrPC makes it clear that it wanted to confer certain rights on the victims. It has been noted therein that the victims are the worst sufferers in a crime, and they don’t have much role in the court proceedings. They need to be given certain “rights” and compensation, so that there is no distortion of the criminal justice system. This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right. It not only extends to challenge the order of acquittal, but such appeal can also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed.
  • 54. Thus, it is clear as per the golden rule of interpretation, that the ‘proviso’ is a substantive enactment, and is not merely excepting something out of or qualifying what was excepting or goes before. Therefore, by adding the ‘proviso’ in Section 372 of CrPC by this amendment, a right has been created in favour of the victim.”

Foot Note:

Appeal by a Victim in a Criminal Cases

Relevant provisions relating to Appeal in Criminal Cases are Sections 2(wa), 372, 374, and 378 of the CrPC.  

Section 2(wa):

  • ‘2. Definitions.— In this Code, unless the context otherwise requires,—
  • … (wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir …

Section 372. No appeal to lie unless otherwise provided—

  • No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
  • Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

Section 374. Appeals from convictions—

  • (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
  • (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.
  • (3) Save as otherwise provided in sub-section (2), any person—
    • (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or(b) sentenced under Section 325, or
    • (c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
  • (4) When an appeal has been filed against a sentence passed under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376- DA, Section 376-DB or Section 376-E of the Indian Penal Code (45 of 1860), the appeal shall be disposed of within a period of six months from the date of filing of such appeal. xxx

Section 378. Appeal in case of acquittal—

  • Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—
    • (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
    • (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.
  • (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—
    • (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
    • (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
  • (3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
  • (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
  • (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
  • (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).’

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When can (i) a ‘Victim’ File an Appeal in a Criminal Case and  (ii) an ‘Aggrieved Person’ File an Appeal in a Civil Case?

Saji Koduvath, Advocate, Kottayam.

Part I –Appeal by a Victim in a Criminal Case

Relevant provisions relating to appeals in Criminal Cases are Sections 2(wa), 372, 374, and 378 of the Criminal Procedure Code, 1973.  

Section 2(wa):

  • ‘2. Definitions.— In this Code, unless the context otherwise requires,—
  • … (wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir …

Section 372. No appeal to lie unless otherwise provided—

  • No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
  • Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

Section 374. Appeals from convictions—

  • (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
  • (2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.
  • (3) Save as otherwise provided in sub-section (2), any person—
    • (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or(b) sentenced under Section 325, or
    • (c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
  • (4) When an appeal has been filed against a sentence passed under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376- DA, Section 376-DB or Section 376-E of the Indian Penal Code (45 of 1860), the appeal shall be disposed of within a period of six months from the date of filing of such appeal. xxx

Section 378. Appeal in case of acquittal—

  • Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—
    • (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
    • (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.
  • (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—
    • (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
    • (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
  • (3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
  • (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
  • (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
  • (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).’

Asian Paints Limited v. Ram Babu, on 14 July 2025

The recent decision of the Supreme Court of India, Asian Paints Limited v. Ram Babu, 2025 INSC 828 (Prashant Kumar Mishra, Ahsanuddin Amanullah, JJ.) considered the relevant provisions relating to appeals in Criminal cases and delivered a noticeable decision. It affirmed the following three earlier decisions:

  • Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321,
  • Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752 (3-Judge Bench, by a majority),
  • Mahabir v State of Haryana, 2025 SCC OnLine SC 184.

Findings in Asian Paints Limited v. Ram Babu, 2025 INSC 828, in Nutshell

The Apex Court held in Asian Paints Limited v. Ram Babu, 2025 INSC 828, in a nutshell, that it is quite clear, based on the plain language of the law –

  • A victim, as defined in Section 2(wa) CrPC, would be entitled to file an appeal before the Court, to which an appeal ordinarily lies against any order acquitting the accused or convicting for a lesser offence or imposing inadequate compensation.

Impugned View of the High Court (Set Aside by the Apex Court)

The impugned view of the High Court (set aside by the Apex Court) was that the ‘complainant’ who actually filed the written complaint alone can maintain an appeal as a ‘victim’, and that the ‘complainant’ in a case instituted upon a police report could file appeal only after seeking the leave of the High Court invoking the provisions of Section 378(3) of the CrPC.

The High Court had held as under:

  • ‘This is a case instituted upon a police report and only in cases instituted upon private complaint, leave to appeal under Section 378(4) of Cr.P.C. is maintainable. Therefore, leave to appeal against order of acquittal in appeal is also not maintainable in the instant case.’

Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court quoted and followed its earlier decision in Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321. It reads as under:

  • ‘23. A “victim” within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to he heard at every step post the occurrence of an offence. Such a “victim” has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that “victim” and “complainant/informant” are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a “victim”, for even a stranger to the act of crime can be an “informant”, and similarly, a “victim” need not be the complainant or informant of a felony.’

Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752,

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court also followed Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752. It has been held by a 3-Judge Bench, by a majority of 2:1, that a victim, as defined in Section 2(wa) of the CrPC, would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It is held as under:

  • “73. In our opinion, the proviso to Section 372 CrPC must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29-11-1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
  • “4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
  • 5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
  • 6.The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
  • Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
  • Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
  • Providing proper assistance to victims throughout the legal process;
  • Taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
  • Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
  • 7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilised, where appropriate, to facilitate conciliation and redress for victims.”
  • 76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 CrPC is concerned.”

Mahabir v State of Haryana, 2025 SCC OnLine SC 184

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court quoted the following from  Mahabir v State of Haryana, 2025 SCC OnLine SC 184, where it is observed as under:

  • “53. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, i.e., that a victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. The plain reading of the statement of objects and reasons for introducing the proviso to Section 372 CrPC makes it clear that it wanted to confer certain rights on the victims. It has been noted therein that the victims are the worst sufferers in a crime, and they don’t have much role in the court proceedings. They need to be given certain “rights” and compensation, so that there is no distortion of the criminal justice system. This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right. It not only extends to challenge the order of acquittal, but such appeal can also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed.
  • 54. Thus, it is clear as per the golden rule of interpretation, that the ‘proviso’ is a substantive enactment, and is not merely excepting something out of or qualifying what was excepting or goes before. Therefore, by adding the ‘proviso’ in Section 372 of CrPC by this amendment, a right has been created in favour of the victim.”

Part II –Appeal by Aggrieved-Person in Civil Cases

CPC: Provisions on Grant of Leave To Appeal

The following are the relevant provisions, as regards appeal, in the Civil Procedure Code

  • Section 96 – Appeal from original decree.
  • Section 97 – Appeal from final decree where no appeal from preliminary decree
  • Section 98 – Decision where appeal heard by two or more Judges
  • Section 99 – No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction
  • Section 99A – No order under section 47 to be refused or modified unless decision of the case is prejudicially affected
  • Section 100 – Second appeal
  • Section 100A – No further appeal in certain cases
  • Section 101 – Second appeal on no other grounds
  • Section 102 – No second appeal in certain suits
  • Section 103 – Power of High Court to determine issues of fact
  • Section 104 – Orders from which appeal lies
  • Section 105 – Other orders
  • Section 106 – What Courts to hear appeals
  • Section 107 – Powers of Appellate Court
  • Section 108 – Procedure in appeals from appellate decrees and orders
  • Section 109 – When appeals lie to the Supreme Court

Appeal From Any Original Decree And From Second Appeal

Sections 96 and 100 respectively of the Code of Civil Procedure, 1908 provide for preferring an appeal from any original decree or from a decree in appeal, respectively. They read as under:

Section 96 – Appeal from original decree:

  • (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
  • (2) An appeal may lie from an original decree passed ex parte.
  • (3) No appeal shall lie from a decree passed by the Court with the consent of parties.
  • (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

Section 100 – Second appeal:

  • Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
  • (1). An appeal may lie under this section from an appellate decree passed ex parte.
  • (2) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
  • (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
  • (4) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question;
  • Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

H. Anjanappa v. A. Prabhakar, January 29, 2025
The Apex Court in H. Anjanappa v. A. Prabhakar, January 29, 2025 (J.B. Pardiwala,  R. Mahadevan, JJ.), pointed out that the aforesaid provisions do not enumerate the categories of persons who can file an appeal. The Court proceeded into the issue analysing the following two well-founded legal propositions –

  • A stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the court that he falls within the category of aggrieved persons.
  • It is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the appellate court.

A Prejudicially Affected Person Can File Appeal

Supreme Court of India, in H. Anjanappa v. A. Prabhakar held  –

  • “Where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the court”.

It is also pointed out that the injury complained of must not be “remote or indirect”.

The Apex Court pointed out two interesting propositions in this regard:

  • 1. The Applicant must be “bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings”.
  • 2. The applicant must be “a person who might properly have been a party”.

The Apex Court (H. Anjanappa v. A. Prabhakar) Concluded on ‘grant of leave to appeal’ in para 43 as under:

  • “43. The principles governing the grant of leave to appeal may be summarised as under:
  • i. Sections 96 and 100 of the CPC respectively provide for preferring an appeal from an original decree or decree in appeal respectively;
  •  ii. The said provisions do not enumerate the categories of persons who can file an appeal;
  • iii. However, it a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the court that he falls within the category of an aggrieved person;
  • iv. It is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the court;
  • v. A person aggrieved, to file an appeal, must be one whose right is affected by reason of the judgment and decree sought to be impugned;
  • vi. The expression “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury;
  • vii. It would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment; and
  • viii. Ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.

No Definition of ‘Appeal‘

The  five-Judge Bench of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165, speaking through Sir Dinshaw Mulla observed that there is no definition of appeal in the CPC, but there is no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.

Applicant must have been aggrieved by an order or causes him some prejudice

A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him

In Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385, the Constitution Bench of the Apex Court held as under:

  • “46. Generally speaking, a person can be said to be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to section 11 of the Code of Civil Procedure.”

Leave Should Be Granted If Applicant Would Be Prejudicially Affected

In Smt. Jatan Kumar Golcha vs. Golcha Properties Private Limited, (1970) 3 SCC 573 it was held as under:

  • “It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment.”

Applicant must Be bound by the order or is aggrieved or is prejudicially affected

In State of Punjab v. Amar Singh, (1974) 2 SCC 70, while dealing with the maintainability of appeal by a person who is not party to a suit, has observed thus:

  • “Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.”

Person Aggrieved Must Be One Whose Right Is Affected By The Judgment

In Baldev Singh v. Surinder Mohan Sharma, (2003) 1 SCC 34, it is held that an appeal under Section 96 of the CPC would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under:

  • “A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned.”

Consider Nature And Extent Of Injuries Suffered

In A. Subash Babu v. State of A.P., (2011) 7 SCC 616, it is held as under:

  • “The expression ‘aggrieved person’ denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant’s interest and the nature and extent of the prejudice or injuries suffered by him.”

Person aggrieved must have jeopardized; Not an imaginary injury

Referring Shanti Kumar R. Canji v. Home Insurance Co. of New York, (1974) 2 SCC 387 and State of Rajasthan v. Union of India, (1977) 3 SCC 592, it is observed that the expression ‘person aggrieved’ does not include a person who suffers from a psychological or an imaginary injury; but, it must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized.

See also:

  • Sri V.N. Krishna Murthy v. Sri Ravikumar, (2020) 9 SCC 501
  • K. Ajit Babu v. Union of India, (1997) 6 SCC 473
  • Thammanna v. K. Veera Reddy, (1980) 4 SCC 62,
  • P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141,

Test Whether Precluded From Attacking in Other Proceedings

Division Bench of the Madras High Court, in Srimathi K. Ponnalagu Ammani v. The State of Madras,  AIR 1953 Mad 485, laid down the test to find out whether it would be proper to grant leave to appeal as under:

  • “Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.”

Court Of Appeal In Its Discretion Allows Third Party Appeal

In Province of Bombay v. W.I. Automobile Association, AIR 1949 Bom 141 (Chagla C.J. and Bhagwati J.), held as under:

  • “The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of appeal; therefore whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the court of appeal may in its discretion allow him to prefer an appeal.”  (referred to: Indian Bank Limited, Madras v. Seth Bansiram Jashamal Firm through its Managing Partner, AIR 1934 Mad 360, In re Securities Insurance Company, (1894) 2 Ch D 410.)

The position is thus stated in the Annual Practice for 1951, at page 1244, as under:

  • “Persons not parties on the record may, by leave obtained on an ‘ex parte’ application to the Court of appeal, appeal from a judgment or order affecting their interests, as under the old practice.”

“A person who might properly have been a party”

Halsbury’s Laws of England, Vol. 26, page 115, says as under:

  • “A person who is not a party and who has not been served with such notice (notice of the judgment or order) cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal.”

In ‘more or less similar terms, the rule and its limits are stated’ in Seton on Judgments and Orders, 7th Edn., Vol. 1, at p. 824:

  • “Where the appellant is not a party to the record he can only appeal by leave to be obtained on motion ‘ex parte’ from the Court of Appeal….. Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party.”

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Civil Suits: Procedure & Principles

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Book No. 4: Common Law of TRUSTS in India

Bar Under Section 116, Evidence Act: Does it Extend to Challenge – Landlord Lost Title After ‘Commencement of the Tenancy’  

Taken from: Recovery of Possession Based on Title and on Earlier Possession

Jojy George Koduvath.

Introduction

Section 116 of the Evidence Act

Section 116 of the Indian Evidence Act reads as under:

  • “Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:

  • “The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant”.

The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.

Bar u/S. 116: Not Extend To Challenge – Landlord Lost Title After ‘Commencement Of The Tenancy’  

D. Satyanarayana v. P. Jagadish (A.P. Sen, B.C. Ray, JJ.), AIR 1987 SC2192, 1987 (4) SCC 424, is a leading decision on this matter.

  • (However, ‘D. Satyanarayana v. P. Jagadish’ is said to be an exception to the general rule. See: Masonic Club v. Jamna Lodge, 2014-207 DLT 62; 2014-140 DRJ 396; L. Rs.  of Arjun Lal v. L. Rs.  of Kundan Lal, 2013 AIR(CC) 2193; 201260 RCR(Civ) 769 (Raj); M. L.  Dawar v. M. L.  Seth, 2011-125 DRJ 564 (Del); Manoharlal v. Baijnath Jalan, 2005-4 Jhk CR 58; 2005-3 Jhk LJR 474.)

The following are the facts (of D. Satyanarayana v. P. Jagadish) in a nutshell.

The owner had leased the demised premises to a tenant. The (original) tenant sub-leased it to the respondent. The head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee.  The sub-tenant atoned in favour of the original lessor and started paying monthly rent directly to the superior landlord (owner).

In this decision, it is held that the estoppel or bar under Sec. 116 of the Evidence Act operates only –

  • (i)  during the continuance of the tenancy,
  • (ii) to the challenge of the title of the landlord at the beginning of the tenancy.

In this decision, it is held as under:

  • “3. …Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words ‘during the continuance of the tenancy’ have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy…”
  • “4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord…”

It was further held that since (or, after) the date of tenancy, the title of landlord came to an end; for, the head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee, and the sub-tenant atoned in favour of the original lessor. It was pointed out –

  • A tenant is not estopped from contending that the title of the lessor has “since come to an end” (or the landlord lost title after the commencement of the tenancy).

The Apex Court (in D. Satyanarayana v. P. Jagadish) quoted from Mangat Ram & Anr. v. Sardar Meharban Singh, AIR 1987 SC 1656,  (1987) 4 SCC 319, (A.P. Sen, V. Balakrishnan Eradi, JJ.) saying:

  • “Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh, [1987] 1 Scale 964, to which one of us was a party, observed:
  • “The estoppel contemplated by s. 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.”
  • See also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232,
  • K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad. 402, 
  • S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
  • Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624.”

D. Satyanarayanana v. P. Jagdish Distinguished

In E. Parashuraman v.  V. Doraiswamy,  AIR 2006 SC 376; 2006-1 SCC 658, it is stated as under:

  • “18. We have carefully examined the decisions of this Court in D. Satyanarayanana vs. P. Jagdish (supra) and A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder : (2002) 5 SCC 337 and we are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy of title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants.”

Sec. 116 ceases to have applicability once the tenant has been evicted

In Vashu Deo v. Balkishan, 2002-1 SCR 171, it is held that Sec. 116 ceases to have applicability once the tenant has been evicted. (It stands incongruent to the view in D. Satyanarayana v. P. Jagadish where it was held – estoppel operates even after the termination.) It is said as under:

  • “6. …Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :
    • .(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
    • (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and
    • (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
  • The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount titleholder…”

Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act

In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375, it is held as under:

  • “In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
  • “Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself.
  • “In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
  • 13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
  • “14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”

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Does Filing a Suit Amount to Notice of Termination of Contract

Saji Koduvath, Advocate, Kottayam.

Introduction

Filing a suit may amount to notice of termination of a contract if:

  • The contract or governing law does not mandate notice.
  • The pleadings clearly declare that the contract is terminated; and
  • The defendant acts upon or acknowledges that intention, for example, by stopping performance, ceasing payment (such as rent or invoices), sending an email confirming cessation of services, or making admissions in pleadings.

In such cases, the filing of the suit may be treated as constructive notice of termination. If the defendant accepts and acts upon the termination, they may be estopped from later denying its validity.

In M/s Nopany Investiments (P) Ltd. Santokh Singh (HUF), AIR 2008 S C 673, 2008 (2) SCC 728, has laid down as under:-

  • “In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this Court in V. Dhanappal Chettiar v. Yesodai Ammal, 1979(2) RCR (Rent) 352; [AIR 1979 SC 1745]”

See also:

  • Brompton Lifestyle Brands Pvt. Ltd. v. Riveria Commercial Developers Ltd. , 2023-4 AD(Del) 591,
  • International Institute of Neuro Sciences & Oncology Ltd. , Chandigarh v. Sahibjit Singh Sandhu, 2017-3 PLR 51; 2017-3 RCR(Civ) 554 (P&H),
  • Neelam v. . Sanjay Pahwa, 2016(1) R.C.R (Rent) 696,
  • Bhagirath Verma v. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Palam, 2016-234 DLT 3
  • Hazari Vs. Vinod Kumar. 2015(4) R.C.R (Civil) 688,
  • Chanda v. Rajesh Saxena, 2015-224 DLT 480,
  • Jeevan Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) & Anr. 2011 (183) DLT 712
  • Harikesh Vs. Smt. Narain Devi, 2010 (1) R.C.R(Rent) 99
  • M/s Mandap International Pvt. Ltd. v.. M/s Ahuja Kashyap Pvt. Ltd., 2014(5) R.C.R (Civil) 797.

No Termination – If Contract Mandates Written Notice

However, where the contract or applicable statute requires a written notice in a particular form, merely filing a suit is not sufficient to constitute valid termination. In such cases, compliance with the prescribed notice process is mandatory.

No Notice, Damages Alone

The Supreme Court clarified this in Indian Oil Corporation Ltd. v. Amritsar Gas Service, (1991) 1 SCC 533, where it held:

  • “The agreement being revocable by either party in accordance with clause 28 by giving thirty days’ notice, the only relief which could be granted was the award of compensation for the period of notice, that is, 30 days.“

Issuance of notice may amount to sub-judice

Issuance of notice, when a suit is pending, even if it does not amount to sub-judice (Latin: “under judgment”), may be unnecessary, redundant, or even improper, as the issue is already seized by the court.

In such a situation the court can proceed – as if the suit or contention amounts to sufficient notice if-

  • The plaint itself discloses the grounds of termination or claim, and
  • The defendant suffers no prejudice, and
  • The suit is not premature.

Opponent’s Conduct Matters
If the opposite party acts based on the termination (e.g., ceases performance, accepts return of goods, or initiates exit procedures), that conduct may confirm mutual understanding of termination, which courts can take notice of.


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Hash Value Certificate – Mandatory or Directory

Saji Koduvath, Advocate, Kottayam.

Introduction

This article examines whether the inclusion of a Hash Value Certificate in the Schedule to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, is mandatory or merely directory.

Section 63(4)(c), BSA

Section 63(4)(c), BSA reads as under:

  • “(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be  sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.”

A question may arise –

  • Because the term “hash value” is not explicitly used the main body of Section 63(4)(c) BSA, can it be argued – Hash Value Certificate is not mandatory but directory (or merely illustrative of the best practices)?

An argument is possible (“hash value” certificate is not mandatory) for two matters –

  • 1. The requirement in the Certificate stated in Section 63(4)(c) is laid down in the sub-section (2) of Sec. 63. The “Part A” Certificate in the schedule contains all things in sub-section (2) of Sec. 63. So the “Part B” Hash Value Certificate is not mandatory as per the “Section”.
  • 2. The words “sufficient for a matter to be” in the sub-section make it clear – the ‘verbatim adherence’ to the certificate format is not mandatory;*.* no doubt, the substance or contents thereof (particularly, the phraseology – “best of the knowledge and belief”) must have been placed in some (other) form. The particulars in the Certificate being the matters enumerated in the sub-section (2) of Sec 63 (and nothing is stated as regards Hash Value), the ‘Part B’ Hash Value Certificate cannot be a mandatory one.
    • *.*Note:
    • 1. See the difference between (i) reading Sec. 63(4)(c) without the words – sufficient for a matter to be and (ii) reading with these words. Relevant portion of Sec. 63(4)(c) is given below:
      • “(c) ….. for the purposes of this sub-section it shall be  sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.”
    • 2. The beginning portion of Sec. 63(4)(c) emphasises that it pertains to the matters enumerated in sub-section(2) alone, and not to hash-value. Sec. 63(4)(c) begins as under:
      • “(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate…”

Possible Counter Arguments

  • First: The “form A” itself requires Hash Value Certificate.
  • Second:  Section 63(4)(c) says, “a certificate specified in the Schedule”. The phrase “specified in the Schedule” explicitly ties the main section to the Schedule and makes it mandatory.
  • Third:  The Schedule provides a single, Certificate, divided into two parts – “Part A and “Part B”. It is not presented as two separate certificates, one mandatory and one optional.
  • Fourth: Legislative Intent (i.e., for ensuring the digital integrity of electronic records) reflects the mandatory nature.

Conclusion

The Hash Value Certificate is accompanied by several potential ambiguities. To dispel these uncertainties, a legislative amendment or a definitive ruling by an authoritative court that takes into account all pertinent arguments in this matter is imperative.

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End Notes:

Section 63, Bhartiya Sakshya Adhiniyam

(Changes introduced in the New Adhiniyam – from the Evidence Act – are emphasised.)

  • 63. Admissibility of electronic records –
    (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
    (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
    (a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
    (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
    (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
    (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
    (3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
    (a) in standalone mode; or
    (b) on a computer system; or
    (c) on a computer network; or
    (d) on a computer resource enabling information-creation or providing information—processing and storage; or
    (e) through an intermediary
    all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
    (4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
    (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
    (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
     (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.
     (5) For the purposes of this section,—
    (a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
    (b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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Sakshya Adhiniyam Mandates Hashing the Original; Established Jurisprudence Requires Hashing the Copy Also.

Saji Koduvath, Advocate, Kottayam

Abstract

  • 1. Sec. 63 of the BSA mandates the hash certificate for the original electronic record alone.
    • However, to fulfill the intended purpose, the HASH value certificate for the copy (computer output) must also be provided.
  • 2. Sec. 63(4)(c) of the BSA does not specifically mandate that hashing must be done at the time of copying.
    • But the judicial precedents require recording the hash values at the time of ‘copying’.

Part I

Established Jurisprudence Varies from the Enacted Law

HASH Certificate Under Sec. 63 (BSA)

The (earlier) Indian Evidence Act, 1872, Sec.  65B mandated only a simple certificate, as provided under Sec. 65B(4), when ‘computer output’ (copy) was produced before a court. But, the new Bharatiya Sakshya Adhiniyam,  2023, requires, in Sec.  63(4), the HASH value certificate, also.

Also Read: Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023

Section 63, Bhartiya Sakshya Adhiniyam

Section 63, Bhartiya Sakshya Act speaks as to copy (computer output)  as under:

  • 63. Admissibility of electronic records– (1) “… any information contained in an electronic record which is printed on paper….  or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied …..”

Section 63(4)(c) of the Act reads as under:

  • “(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.“

HASH Value Certificate

The Certificate required in Sec. 63(4)(c) of the Sakshya Adhiniyam (BSA) must be “in the form specified in the Schedule”. It is laid down in the schedule (not expressly stated in the body of the section-text) that this certificate (HASH value certificate) is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated in sub-section (4).

HASH Value Certificate: Form in the Schedule

The Form in the Schedule directs to state the following:

  • “I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
  • SHA1:
  • SHA256:
  • MD5:
  • Other …….. …….. …….. (Legally acceptable standard)
  • (Hash report to be enclosed with the certificate)”

What is (Literally) required is the Certificate concerning the Original

From the above form, it is evident that what is required is a certificate as regards the original ‘electronic/digital record(s)’, not any copy thereof.

Besides clause (c) of sub-section (4), clauses (a) and (b) also refer to the ‘original’ and not to a ‘copy’. Clauses (a) and (b) read as under:

  • “(a) identifying the containing the statement and describing the manner in which it was produced;
    (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3).”

The expression “identifying the electronic record containing the statement” in clause (a) of sub-section (4) further emphasises that the “statement” should pertain to that found in the ‘computer,’ indicating the statement within the physical device itself.

This interpretation aligns with the evidentiary logic that authentication must relate or refer to the source.

Moreover, the words “where it is desired to give a statement in evidence” in Sec. 63(4) can be understood to refer to the “statement” as it exists in the electronic form in the (original) computer or in its digital storage (rather than the ‘copy’ or reproduction of that statement introduced later in court).

Relevant words in Sec. 63(4) reads as under:

  • “Where it is desired to give a statement in evidence by virtue of this section, a certificate… shall accompany the electronic record…”

The term “electronic record,” as used in this context, appears incongruent because the statute seems to treat the original electronic source and the document produced from it (such as a printout or soft copy) under the same terminology. This conflation could lead to multiple confusions, including what exactly is being certified, the original data in the system, or the document derived from it.

Further Discordant Notes

1. The law compulsorily requires the HASH certificate. But, the requirement for the HASH certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out).

2. It is not made clear in Sec. 63, BSA –

  • (i) What is the precise purpose of ascertaining the hash value of the (original) ‘electronic or digital record’ and not a copy (computer output) that is actually produced before the court?
  • (ii) This raises also another question: how is the court to verify the authenticity of the copy, if only the original’s hash is referenced?
  • (iii) Why does the requirement of including HASH value appear only in the Schedule (certificate format) and not in the main body of Sec. 63 itself?
  • (iv) The lack of explicit mention in the section text also creates uncertainty about whether hash values are mandatory or directory (merely illustrative of best practices).

Established Jurisprudence

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 (although it was delivered before the introduction new Adhiniyam of 2023), is regarded as the most authoritative decision on this matter.

Read: Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.

The enacted law (Sec. 63, BSA) requires the HASH value ‘certificate’ as regards the original ‘electronic or digital record(s)’, the prevailing consensus among the courts in India is the following –

  • The primary objective of the certificate being verification of the authenticity of the copy (CD, pen drive, etc.), the certificate must refer to the copy (computer output), as well as to the original (electronic record) from which the copy was derived.

As regards the HASH value in Sec. 63(4), BSA, the following matters requires consideration –

  • The main text of Section 63(4) does not use the term “hash value”.
  • The ‘HASH value/s of the electronic/digital record/s‘ is required to be given under the ‘Form’ scheduled.
  • Even though it is not specifically stated, the ‘HASH values’ of both the original and the copy of the record must be provided (otherwise, the intended purpose will not be served).

Part II

The Law Does Not Mandate Hashing at the Time of Copying

As shown above, the Court decisions refer to the HASH value of the copy (computer output) produced in court, and not the original (electronic or digital record).

It is also worth noting that the Section does not clarify when hashing must be done—whether during copying from the original or at the time of presentation before the court.

It is true that the hash value of the copy of the CCTV footage (or any other digital evidence) should ideally be generated at the time the copy is made, and not merely at the time when the pen drive or other storage device is produced in court.

Hash Value Is Insisted at Four Stages even under Evidence Act

Madras High Court, in Yuvaraj v. State, 2023-4 Mad LJ (Cri) 238, observed as under:

  • “206. To ensure that what is collected as an evidence in the source is exactly reflected or produced at the time of marking the electronic evidence before the Court, particularly when it comes to CCTV footages, a standard operating procedure must be followed. Such a practice will guarantee that nothing gets altered/deleted/added by the time the evidence is tendered before the Court. Hence, the concept of hash value is insisted at four stages and this value must be the same on all those four stages to ensure authenticity. When the CCTV footage gets stored in the hard disk, that is the first stage where the hash value must be noted down when it is received by the analyst from the Court on requisition made by the prosecution. Thereafter, the analyst creates a copy/mirror image of what is contained in the hard disk and this must also have the same hash value. As the next step, the forensic examination starts and ultimately, it is concluded and a report is given by the forensic analyst. In all those four stages, the hash value must be the same.”
  • 207. For convenience, after the examination is completed by the forensic analyst, the footage can be downloaded to a DVD/CD and the same hash value will be reflected without any change. Since the extraction from the hard disk to the DVD/CD makes such DVD/CD as a secondary evidence, it goes without saying that such a DVD/CD must be accompanied with Section 65-B certificate. Copies taken and given to the accused persons under Section 207 of CrPC. regarding the CCTV footages should also be accompanied with Section 65-B certificate.”

Hash Value Must Be Recorded – Guidelines of Govt. in Tax Matters

In the “Digital Evidence Investigation Manual, 2014, Central Board of Direct Taxes (CBDT), Department of Revenue Ministry of Finance Government of India, reads, in Para 6.8, as under:

  • “6.8 Forensic Imaging/Cloning: If on previewing, important data is found either in deleted or in active form, the storage medium is required to be cloned for evidence purpose. Otherwise a normal data backup can be taken. The following steps should be taken at the time of cloning:
  • • Preparation-
  • ….. In cases where very high capacity disks/ servers (Over 200 GB) are found at the search premises, separate Hardware imaging devices, which are up to ten times faster, would be needed. These hardware devices have in-built authentication engines. On completion of the imaging process, the device displays the hash value of the cloned hard disk. The image/clone has to have the same hash value as that of the target hard disk. The Hash value should be recorded in the Panchnama and the assessee can be given the option of seeking a copy of the imaged/cloned hard disk by paying the copying charges.”

Para 6.8 also requires the following under the heading ‘Report’:

  • • Report: Take printout of report generated by the imaging tool which contains the details of imaging attributes, details of Hard Disk Drives imaged, date and time and the most important thing the hash value of the Hard Disk Drive. Attach the report along with panchnama as an annexure to it.

In M/S. Saravana Selvarathnam Retails v. The Commissioner of Income Tax, 2024-463 ITR 523: 298 Taxman 319: 339 CTR 10 (Mad)(HC), the main grievance of the petitioner was that the digital data evidences were collected by the respondents from unknown locations without any valid search warrant and without following the guidelines issued by the CBDT vide Digital Evidence Investigation Manual. The Madras High Court addressed the contention in detail and held as under:

  • “The Digital Evidence Investigation Manual has been issued by the CBDT by virtue of powers available under Section 119 of the IT Act and hence, the Income Tax Authorities and all the other persons employed in the execution of this Act are bound to observe and follow such orders, instructions and directions issued by CBDT. ….. Hence, it is mandatory for  W.P. Nos. 9753, 9757, 9761 & 11176 of 2023 respondents to follow the Digital Evidence Investigation Manual issued by CBDT while conducting search and seizure and it is not optional.”

Directives of Maharashtra and Kerala Govts.

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, it is pointed out –

  • “In fact, the Government of Maharashtra has already implemented the practice of collecting hash value of electronic evidences and collecting the memory component of the device it is recorded on at the first instance since 2016. A reference can also be made to the Standard Operating Procedures issued by the Government of Kerala for collection of digital evidence related to crimes against women and children, since 2021. In fact, guidelines on extraction of hash value are also given in Digital Evidence Investigation Manual Central Board of Direct Taxes Department of Revenue, Ministry of Finance, Government of India.”

Hash Values of the Original and Copy at the Time of Copying, Required

Though Sec. 63(4)(c) of the BSA does not specifically mandate

  • (i) that hashing must be done at the time of copying, and (ii) that the hash value must pertain to the copy (computer output), also,

established jurisprudence, through long-standing legal precedents, requires recording the hash values of both the original and the copy at the time of copying, to demonstrate that the data is protected against tampering.

Conclusion

It is a fact that Section 65 of the old Act and Section 63 of the new Act were introduced as enabling provisions, designed to simplify the admissibility of electronic records.

  • However, due to poor and rigid drafting, they have paradoxically had the opposite effect.

In practice, it may be more feasible for many litigants to physically produce the original device—such as a computer, laptop, or mobile phone—before the court, rather than to obtain a certified hash value through a forensic expert.

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End Notes:

Section 63, Bhartiya Sakshya Adhiniyam

(Changes introduced in the New Adhiniyam – from the Evidence Act – are emphasised.)

  • 63. Admissibility of electronic records –
    (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
    (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
    (a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
    (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
    (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
    (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
    (3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
    (a) in standalone mode; or
    (b) on a computer system; or
    (c) on a computer network; or
    (d) on a computer resource enabling information-creation or providing information—processing and storage; or
    (e) through an intermediary
    all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
    (4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
    (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
    (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
     (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.
     (5) For the purposes of this section,—
    (a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
    (b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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Implied Grant: A Valid Mode of Creation of Easement under Indian Law

Saji Koduvath, Advocate, Kottayam.

Abstract

  • Easement by ‘Implied Grant’ is a Well-Recognised Category of Easement.
  • Implied Grant is an Independent Right (Alternative Way will Not Defeat it).
  • Implied Grant can be Inferred from the Circumstances.
  • No Express Consideration is Required for the Creation of an Easement by Grant and Implied Grant.
  • Grant alone pleaded; Not, Implied Grant – The Supreme Court recognized and allowed the doctrine of Implied Grant (in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622).

Grant in Easements – Three Distinct Legal Connotations under Indian Law

  • 1. Theoretical Basis of Every Easementary Right is Grant. The foundation of all easementary rights under Indian law is the concept of grant by the servient owner. Such a grant may be express, as provided in Sections 8 to 12 of the Indian Easements Act, 1882; implied, based on the circumstances of transfer by severance, as contemplated in Section 13; or presumed, from long and continuous use, as recognised under Section 15.
  • 2. Implied Grant is a Judicially Recognized Easement. The common law in India recognizes implied grant—distinct from an easement of necessity—as a valid mode of acquiring an easement, even though it is not expressly codified under the Indian Easements Act. Such easements are inferred from the conduct of the parties or from the surrounding circumstances that indicate the intention to grant such a right. Indian courts have upheld this principle in several decisions, including Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, and L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307.
  • 3. Grant is inferred from Usage and Custom in Customary Easements: The Indian Easements Act also recognises customary easements, which are expressly discerned in Sec. 18 of the Act. In such cases, the right is not assumed to be founded on an express or implied grant in the conventional sense, but it is presumed as imbeded in the long and continuous reasonable use by a particular class of people within a specific locality. That is, the underlying presumption is that a reasonable grant must have once taken place, which now gives way to a valid and acceptable custom. An example would be a village pathway used by local inhabitants over a long time to form a custom. This principle has been upheld in several decisions, including Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; and Yohannan v. Mathai, 1991 (1) Ker LJ 605, 1991 KHC 571.

Easement by Implied Grant is a Well-Recognised Category of Easement

A grant may be either express or implied. The latter arises from the circumstances or conduct of the parties involved. Indian common law recognizes implied grant as a legitimate and acceptable mode for the acquisition of easements.

Sree Swayam Prakash Case: Supreme Court only Reaffirmed Previous Legal Position

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the term implied-grant to refer to an easement of grant ‘arising by implication’. It is seen that the Supreme Court has only reaffirmed the legal position previously upheld by several High Courts.

  • R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251,
  • L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307,
  • Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209,
  • Annapurna v. Santosh Kumar, AIR 1937 Cal. 661 (referred to in the decision),
  • Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834.

It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the plaintiff could found his case on an implied grant of easement even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, the existence of a right of way was inferred from the words of the relevant documents. It was observed as under:

  • “8. From all these documents Thiru D. Ramaswami Iyengar stated, it is clear that there is an implied grant of easement over the 30-ft. road. He cited Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209, wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least, the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is pity that the lower appellate Court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law.
  • 9. Annapurna v. Santosh Kumar, AIR 1937 Cal 661 also makes it clear that in law implied grant has to be inferred and lays down that grant can be presumed from the description of boundaries in the conveyance which mentions the same to be a common passage.”

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, the High Court also referred Kuppakkal v. Mathato n Chettiar, AIR 1924 Mad 834, where ‘a grant of an easement of way’ had been inferred from the words of a lease deed. 

‘Implied Grant‘ exists Independent of Sec. 13, Easement Act

R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, addressed the issue with clarity holding as under:

  • “Merely because the juristic basis of the easement of necessity (Section 13) is said to be an implied grant, the converse will not follow. In other words, where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity.”

K.S. Venkataraman, J., in this decision followed Peacock on Easements which reads as under:

  • “An implied grant, in the sense here used, is a grant which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.”

Easement by Implied Grant

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

  • “An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762).  It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swayam Prakash Ashramam v. N. Gopala Pillai on 9 May 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:

  • “Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view taken by the Kerala High Court, the Apex Court held as under:

  • “In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Grant: No Express ‘Consideration’ Required; TP Act has no application

In B. Shyamkumar v. Francis George, 2009-4 CTC 750; 2009-7 MLJ 835, the Madras High Court held unequivocally as under:

  • “In case the easement was one acquired by grant, there was no question of consideration of the plea of easement of necessity.”

Gujarat High Court, in Hamir Ram v. Varisng Raimal, 1998 AIR Guj 165, has also held ‘grant’ can be gratuitous. It is said as under:

  • “Easement by grant may be created by oral agreement. It may be gratuitous. It may also be for consideration. If the grant was for consideration it hardly requires registration because mere creation of easement is not compulsorily registrable. …. Further, the …. parties never intended to transfer ownership in respect of the land which was set apart for the purpose of common passage. Hence, it cannot be held to be a sale deed of immovable property having value more than one hundred rupees. For this reason also the agreement does not require registration.”

The incorporeal right of Easement, by itself, cannot be a subject-matter of sale. Following two legal provisions are relevant in this matter –

  • 1. Sec. 6 of the Transfer of Property Act
  • 2. Sec. 8 of the Indian Easements Act.

Sec. 6 of the Transfer of Property Act

Easement cannot exist independently of the dominant tenement; hence always remains appurtenant to land (that is, attached to, and passes with, the ownership of the dominant tenement). Sec. 6 of the Transfer of Property Act reads as under:

  • “6. What may be transferred– Property of any kind may be transferred, except as provided by this Act or by any other law for the time-being in force;
  • a.… b….
  • c. An easement cannot be transferred apart from the dominant heritage.”

In Musunoori Satyanarayana Murti v. Chekka Lakshmayya, AIR 1929 Mad 79, it was held – ‘the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by Section 54 of the Transfer of Property Act, 1882, and therefore, provisions of the Transfer of Property Act has no application to the creation of easement. Section 6(c) of the Transfer of Property Act contemplates that an existing easement cannot be transferred apart from the dominant heritage. Therefore, prima facie, the deed of easement is a creation of easement and not a transfer of an existing easement. [See also: Saraswatibai Bishwambarlal Charity Trust v. Gopal Traders Pvt.  Ltd., 2023 BHC (AS) 34908 (Bom)]

Sec. 8 of the Indian Easements Act

Sec. 8 of the Indian Easements Act deals with express grant. It reads –

  • “8. Who may impose easements – An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.”

This section simply says that a person who has the legal right to transfer an interest (i.e. to sell, lease, or mortgage) in an immovable property (‘heritage’) is legally capable of creating (i.e., imposing or granting) an easement over that property.

It is also clear –

  • A life tenant (who has rights only for life) can grant an easement, but it ends with their interest.
  • A co-owner cannot impose an easement on the entire property without consent of the others.

Law does not bar ‘imposition’ of easement accepting consideration

Though the transfer of an easement is not recognized under the provisions of Sec. 54, TP Act, it is noteworthy – the law does not bar ‘imposition’ of easement accepting consideration as pointed out in Saraswatibai Bishwambarlal Charity Trust v. Gopal Traders Pvt.  Ltd., 2023 BHC (AS) 34908 (Bom).

It is also important – though the provisions of the Easements Act address the creation of easements by grant, it is without an explicit requirement for ‘consideration‘, though consideration is a necessary element of a valid agreement under the Indian Contract Act, 1872.

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without an express requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court observed that an ‘easement of grant is a matter of contract between the parties’ (and it may have its own consideration); and that ‘the grant may be either express or even by necessary implication’.

In State of Punjab v. Brig. Sukhjit Singh, 1993-3 SCR 944, the Supreme Court held as under:

  • “Payment of licence fee is not an essential attribute for the subsistence of a licence.”

It is pointed out in Prabhudas Damodar Kotecha and Anr v. Smt. Manharbala Jeram Damodar, AIR 2013 SC 2959, 2013-15 SCC 358, as under:

  • “In Black’s Law Dictionary, Seventh Edition, the word “license” means “a revocable permission to commit some act that would otherwise be unlawful” and the word “licensee” means “one to whom a license is granted or one who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit.“
  • Thus, it is seen that even in popular sense the word “license” is not understood to mean it should be on payment of license fee for subsistence of license. It also covers a “gratuitous licensee”, that is, a person who is permitted, although not invited, to enter another’s property and who provides no consideration in exchange for such permission.””

A Grant Deed with Consideration requires Stamp and Registration

In Subramanyam Chettiar v. Meyyammai Achi, AIR 1943 Mad 522, it was held that the consideration for the grant of the easement was a promise on the part of the grantee to do something of a like kind for the grantor; and the provisions of the Indian Registration Act were quite clear and it could not be doubted that such a deed required registration under Section 17 and so by virtue of Section 49 it could not be admitted as evidence of the creation of the easement.

Implied Grant is Independent Right ; Alternative Way will Not Defeat it

The existence of an alternative way will defeat easement of necessity and quasi-easement. But, it is pointed out in Sree Swayam Prakash Ashramam v. G. Anandavally Amma – alternative pathway ‘does not extinguish the right of easement of grant. It includes the claim of implied grant also. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, the Supreme Court held as under:

  • “28. … Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made.”

Easement by Implied grant and Quasi Easement can be pleaded Alternatively

Easement by (implied) grant and quasi easement can be pleaded alternatively, for they are not mutually destructive, and it is permissible to raise inconsistent pleas (but to confine either of the two at the time of evidence).

Implied Grant can be Inferred from the Circumstances

Grant alone Pleaded ; Not, Implied Grant – Apex Court, allowed Implied Grant

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, Easement of implied grant can be granted in a suit even though “Grant” alone was claimed (Alternatively to easement of necessity). Facts of the case, in a nutshell, are the following –

  • Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
  • “Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
  • Dominant tenement had been separated from the servient tenement.
  • Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
  • The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
  • Defendant alleged that two alternate pathways existed. But, No evidence of any other way to A-schedule property (dominant tenement).
  • The High Court found that there was implied grant of ‘B’ schedule property as pathway.

The Supreme Court upheld the view of the High Court and the Trial Court and held as under:

  • “… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
    • (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
    • (ii) there was no objection also to the use of ‘B’ schedule property …”

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

  • “In Annapurna Dutta vs. Santosh Kumar Sett & Ors., AIR 1937 Cal.661, B.K. Mukherjee, as His Lordship then was observed:
    • “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
  • 26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

  • “… It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

Implied Grant and Quasi Easement

The question of implied grant arises only if the easement is apparent and continuous (that is, there should be a ‘formed road’)

  • Easement of Necessity: even if – no visible sign (not apparent); and even if – never used before (not continuous). E.g., a foot path to a landlocked plot.
    • But, there should have strict necessity.
  • Quasi Easement – must be visible (apparent) and must be functioning without repeated human action (continuous). E.g., water flowing through a pipe or a drainage system.
    • It is based on prior use before land division.
    • It requires only reasonable necessity, not strict necessity.

Implied Grant and Quasi-Easement

  • The question of implied grant (or quasi-easement) arises only if the alleged easement is:
    • Apparent (i.e., visible upon reasonable inspection), and
    • Continuous (i.e., functions without repeated human intervention)
  • E.g., Water flowing through a pipe, A drainage trench, Overhead electric cables.

Conclusion

  • It is the fundamental principle of easement law that every easement is, in theory, rooted in a grant.
  • Indian law clearly permits the acquisition of easements by implied grant. That is, an easement may arise by implication, and the intention to grant can be inferred either from the terms of the grant or from the surrounding circumstances.
  • Though easement by grant is (generally) said to have arisen from a ‘contract’, the provisions of law that deals with the matter do not specifically require ‘consideration’ in the creation of easements by grant.

End Notes 1

Customary Easements under S. 18 of the Easement Act

Section 18 of the Easement Act reads as under:

  • “18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement (long user) are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes the right to take water and earth from a tank, use water for cattle from a tank,  graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc.[Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and not a public right.

End Notes 2

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

  • “17. The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over ‘B’ schedule property by way of grant concurring with the findings of the trial court was sustainable.
  • 18. Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the ‘B’ schedule property stood confirmed. Further they contended that the alternative pathway on the western side of the ‘A’ schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over ‘B’ Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over ‘B’ schedule property stood unaffected by the said conduct.
  • 21. The High Court relied on a number of observations in Katiyar’s Law of Easement and Licences (12th Edition) on law with respect to “implication of grant of an easement.” It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
  • 23. Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both ‘A’ schedule and ‘B’ schedule properties and consequently there was no question of ‘B’ schedule property becoming the servient tenement and ‘A’ schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of ‘B’ schedule property as pathway as can be inferred from the circumstances, namely,
    • i) no other pathway was provided for access to ‘A’ schedule property in the settlement deed and
    • ii) there was no objection to the use of ‘B’ schedule as pathway.
  • 25. We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the ‘B’ Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in ‘A’ Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to ‘A’ Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of ‘B’ schedule pathway for access to ‘A’ schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the ‘B’ schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to ‘B’ schedule property of the plaint for its use as pathway to ‘A’ schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the ‘A’ schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the ‘B’ Schedule property of the plaint. It is an admitted position that both ‘A’ schedule and ‘B’ schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away.
  • In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K. Mukherjee, as His Lordship then was observed:
    • “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
  • 26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

  • “There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… … It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

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