Section 36 BSA: Relevancy and Effect of Other Judgments

Section 36 BSA explains when previous judgments concerning public matters are relevant but do not conclusively prove the facts stated in them.

Introduction

Section 36 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with the relevancy and evidentiary effect of judgments, orders and decrees that do not fall within Section 35. Such decisions are relevant when they relate to matters of a public nature that are relevant to the inquiry before the court.

However, a judgment covered by Section 36 is not conclusive proof of the facts it states. The court may consider the earlier decision, but the underlying matter must be assessed in accordance with the applicable rules of evidence.

For example, a court previously passed a decree recognising a public right of way over certain land. In a later dispute about the same alleged public right, the earlier decree may be relevant, but it does not conclusively establish that the right of way exists.

Section 36 BSA corresponds to Section 42 of the Indian Evidence Act, 1872.

Bare Act: Section 36 of the Bharatiya Sakshya Adhiniyam, 2023

36. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 35.

Judgments, orders or decrees other than those mentioned in section 35 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.

Meaning and Explanation of Section 36 BSA

Section 36 establishes a limited rule concerning the use of previous judicial decisions as evidence. It allows a court to consider an earlier judgment when that judgment relates to a relevant matter of a public nature, while making clear that the judgment does not conclusively prove the facts it records.

The provision has three essential requirements.

1. The judgment must not fall within Section 35

Section 36 applies to judgments, orders or decrees other than those covered by Section 35.

Section 35 deals with specified final judgments in probate, matrimonial, admiralty and insolvency jurisdiction that determine legal character or absolute entitlement and have the special evidentiary effect described in that section.

Section 36 addresses other judgments that relate to relevant matters of a public nature.

2. The judgment must relate to a matter of a public nature

The earlier judgment must concern a matter of a public nature. The fact that a judgment exists, or that it concerns a dispute between private parties, does not automatically make it relevant under Section 36.

For instance, a previous judgment concerning the existence of a public right of way may be relevant in a later dispute about that right. By contrast, a judgment concerning an unrelated private transaction will not qualify under Section 36 merely because it was delivered by a court.

3. The judgment must be relevant to the inquiry

The public matter addressed in the earlier judgment must be relevant to the question the court is deciding in the current proceeding.

Even where a previous judgment concerns a public matter, it cannot be used indiscriminately to prove unrelated facts.

Why Are Judgments Relevant but Not Conclusive Proof?

The distinction between relevance and conclusive proof is the central principle of Section 36.

Relevant evidence is material that the court may consider when deciding an issue. Its weight depends on the circumstances, the applicable law and the other evidence presented.

Also Read: Section 35 BSA: Relevancy of Certain Judgments in Probate Jurisdiction

Conclusive proof, as defined under the BSA, means that the law requires the court to treat the relevant fact as proved and does not permit evidence to disprove it, subject to the scope of the statutory rule.

Section 36 expressly denies this conclusive effect to the judgments it covers.

Accordingly:

• The court may consider the previous judgment if it satisfies Section 36.
• The judgment does not automatically establish the truth of every factual statement it contains.
• The parties may produce other admissible evidence concerning the underlying matter.
• The court must assess the issue in accordance with the applicable law and the evidence before it.

This rule prevents an earlier decision involving different parties from automatically determining the rights of persons who were not bound by that decision.

Explanation of the Statutory Illustration

The illustration to Section 36 demonstrates how the provision works.

Facts

A sues B for trespass on A’s land. B argues that a public right of way exists over the land, while A denies the existence of that right.

In an earlier suit brought by A against C for trespass over the same land, C had also claimed that the same public right of way existed. The court had passed a decree in favour of C.

Legal issue

Can the earlier decree be relied upon in the later dispute between A and B to establish the existence of the public right of way?

Application of Section 36

The earlier decree concerns the same alleged public right of way. Its existence is therefore relevant to the later inquiry.

However, the earlier decree is not conclusive proof that the public right of way exists. The court hearing the later dispute must determine the issue in accordance with the applicable law and the evidence before it.

Principle established

An earlier judgment concerning a relevant public matter may be considered as evidence, but it does not automatically establish the truth of the matter stated in it.

The illustration also demonstrates why the effect of a previous judgment must be distinguished from its mere existence.

Practical Examples of Section 36 BSA

Example 1: A public right of way

A and B dispute whether members of the public have a right to use a path crossing A’s land. A previous suit involving A and C resulted in a decree recognising the alleged public right of way.

Under Section 36, that decree may be relevant to the later dispute. However, it does not conclusively prove that the public right exists.

Example 2: A public boundary dispute

Suppose an earlier judgment discusses the location of a boundary associated with a public road. In a later dispute concerning the same public boundary, the earlier judgment may be relevant if the matter satisfies the requirements of Section 36.

The court must nevertheless assess the judgment’s evidentiary value alongside other admissible evidence. It cannot treat the earlier decision as conclusive proof merely because it addressed a similar issue.

Example 3: An earlier judgment about a private contract

A previously obtained a judgment against B concerning payment under a private contract. In an unrelated later dispute between C and D, one party attempts to rely on that judgment to establish the existence of a different contractual obligation.

The earlier judgment does not become relevant under Section 36 merely because it exists. The party must identify a relevant public matter or establish relevance under another applicable provision of the BSA.

Important Judgments Relating to Section 36 BSA

The following Supreme Court decisions interpret Section 42 of the former Indian Evidence Act, 1872, or discuss the evidentiary effect of previous judgments. They are relevant to understanding Section 36 BSA, but they are not direct interpretations of the new provision.

1. K.G. Premshanker v. Inspector of Police (2002)

Citation: (2002) 8 SCC 87

Also Read: Section 34 BSA: Previous Judgments Relevant to Bar a Second Suit or Trial

Court: Supreme Court of India

The Supreme Court examined the evidentiary effect of judgments delivered in earlier proceedings, particularly when civil and criminal proceedings concerned related matters.

The Court explained that the relevance and effect of a previous judgment must be determined under the applicable provisions of the Evidence Act. It distinguished judgments that fall within the provisions governing previous judgments from those that may be relevant only for a limited purpose.

In discussing Section 42 of the former Evidence Act, the Court recognised that a judgment relating to a matter of public nature may be relevant without being conclusive proof of the matter stated in it.

Legal principle: A previous judgment must first be shown to be relevant under the applicable provision. Its evidentiary effect must then be determined separately. A judgment that is relevant is not necessarily conclusive proof of the facts it records.

This decision is particularly useful for understanding the distinction between Sections 35 and 36 BSA.

2. V. Shankarayya v. N.S. Pattadadevan (1995)

Citation: AIR 1995 SC 2187

Court: Supreme Court of India

This decision is cited in the Law Commission of India’s review of the Indian Evidence Act in connection with Section 42. The case concerned a judgment relating to the validity of nomination and installation to a particular office.

The decision is relevant to the principle that a previous judgment may be considered under Section 42 where it relates to a public matter relevant to the inquiry, without automatically becoming conclusive proof of the matter stated in it.

Legal principle: The evidentiary effect of a previous judgment depends on the statutory provision under which it is considered. Relevance does not, by itself, make the judgment conclusive proof.

The case interpreted the former Evidence Act and should not be described as a direct interpretation of Section 36 BSA.

Difference Between Sections 35, 36 and 37 BSA

Basis	Section 35 BSA	Section 36 BSA	Section 37 BSA
Subject	Specified judgments in probate, matrimonial, admiralty and insolvency jurisdiction	Other judgments relating to relevant matters of a public nature	Judgments not covered by Sections 34, 35 or 36
Relevancy	Relevant when the statutory conditions are satisfied	Relevant if they concern a relevant matter of public nature	Generally irrelevant unless a specified exception applies
Evidentiary effect	Conclusive proof of the matters specified in Section 35(2)	Not conclusive proof of what the judgment states	Depends on the other applicable provision or whether the judgment’s existence is itself in issue
Main principle	Special effect for qualifying final judgments	Limited relevance of judgments concerning public matters	General exclusion of other judgments, subject to exceptions

This distinction is important in examinations. Section 35 provides a special rule for qualifying judgments, Section 36 makes certain other judgments relevant but not conclusive, and Section 37 sets out the general rule for judgments outside Sections 34–36.

Section 36 BSA and Section 42 of the Indian Evidence Act, 1872

Basis	Section 36 BSA	Section 42, Indian Evidence Act
Subject	Relevancy and effect of judgments, orders or decrees outside Section 35	Same subject, referring to judgments outside Section 41
Requirement	The judgment must relate to a matter of public nature relevant to the inquiry	Same requirement
Conclusive proof	The judgment is not conclusive proof of what it states	Same rule
Illustration	Public right of way in a trespass dispute	Substantially the same illustration
Current status	In force from 1 July 2024	Repealed, subject to applicable savings provisions

Section 36 BSA substantially carries forward the rule contained in Section 42 of the Indian Evidence Act, 1872.

Related Legal Provisions

• Section 34 BSA: Previous judgments relevant to bar a second suit or trial.
• Section 35 BSA: Relevancy of certain judgments in probate, matrimonial, admiralty and insolvency jurisdiction.
• Section 37 BSA: Judgments, orders or decrees other than those mentioned in Sections 34, 35 and 36 when relevant.
• Section 11 BSA: Facts that are inconsistent with, or make the existence or non-existence of a fact in issue or relevant fact highly probable or improbable.
• Section 40 BSA: Previous judgments relevant to prevent a second suit or trial in specified circumstances, including matters concerning public rights, as provided by that section.

Important Points for Law Students and Judiciary Exams

• Section 36 BSA concerns the relevancy and effect of judgments, orders or decrees outside Section 35.
• It corresponds to Section 42 of the Indian Evidence Act, 1872.
• The judgment must relate to a matter of a public nature that is relevant to the inquiry.
• Such a judgment is relevant but is not conclusive proof of what it states.
• The statutory illustration concerns a public right of way alleged in a trespass dispute.
• The mere existence of a previous judgment does not automatically make it relevant under Section 36.
• Relevance and evidentiary effect are separate questions.
• Section 35 must be distinguished from Section 36 because Section 35 gives qualifying judgments a special conclusive effect for the matters specified in that section.
• Section 37 provides the general rule for judgments outside Sections 34, 35 and 36.

Frequently Asked Questions (FAQs)

1. What is Section 36 of the BSA?

Section 36 of the Bharatiya Sakshya Adhiniyam, 2023 provides that judgments, orders or decrees other than those covered by Section 35 are relevant if they concern matters of a public nature relevant to the inquiry. However, they are not conclusive proof of what they state.

2. Which section of the Indian Evidence Act corresponds to Section 36 BSA?

Section 36 BSA corresponds to Section 42 of the Indian Evidence Act, 1872.

3. What does “matters of a public nature” mean under Section 36?

The expression refers to matters of a public character that are relevant to the issue before the court. The statutory illustration concerns an alleged public right of way over private land.

4. Is a judgment under Section 36 conclusive proof?

No. Section 36 expressly provides that such judgments, orders or decrees are not conclusive proof of what they state. The court may consider them as relevant evidence but must determine the issue under the applicable law.

5. What is the difference between relevance and conclusive proof?

Relevance means that the court may consider the material when deciding an issue. Conclusive proof means that the law requires the court to treat the specified fact as proved and does not permit evidence to disprove it within the scope of the statutory rule.

6. What is the difference between Sections 35 and 36 BSA?

Section 35 gives specified final judgments in probate, matrimonial, admiralty and insolvency jurisdiction a special evidentiary effect, including conclusive proof of certain matters. Section 36 covers other judgments concerning relevant matters of public nature, but they are not conclusive proof of what they state.

Conclusion

Section 36 of the Bharatiya Sakshya Adhiniyam, 2023 establishes that certain previous judgments concerning matters of public nature may be relevant in subsequent proceedings without conclusively proving the facts stated in them. The court may consider such a judgment, but its existence does not automatically settle the underlying issue. The provision therefore balances the evidentiary value of previous judicial decisions with the need to assess the relevant facts under the applicable law. For examinations, remember the central distinction: a judgment under Section 36 may be relevant evidence, but it is not conclusive proof of the matter stated in it.

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