KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Fraud or Collusion in Obtaining Judgment, or Incompetency of Court (Section 38)
1. Basic Principle of Section 38Under Section 38 of the Bharatiya Sakshya Adhiniyam, the law provides that:
Any party to a proceeding may prove that a judgment, order, or decree (relevant under Sections 34–36) was:

• Delivered by a court lacking jurisdiction, or
• Obtained by fraud or collusion

This allows a party to challenge the validity of a judgment relied upon by the opposite party.

2. Scope of the Provision

• Applies to both civil and criminal proceedings
• Enables a party to attack the validity of a prior judgment
• A judgment may be challenged on grounds such as:
  • Lack of jurisdiction
  • Fraud
  • Collusion
  • Irrelevance (not between same parties, not in rem, etc.)

👉 The section lays down grounds for avoiding or discrediting a judgment.

3. Meaning of Key Terms(i) Incompetent Court

• A court is incompetent when it lacks jurisdiction (territorial, pecuniary, or subject-matter).
• Any judgment passed without jurisdiction is invalid in law.

(ii) Fraud

• Fraud involves deception practiced upon the court.
• Examples:
  • Suppression of material facts
  • Producing false evidence
  • Misleading the court

👉 A judgment obtained by fraud is considered void (nullity).

(iii) Collusion

• Collusion means a secret agreement between parties to deceive the court.
• There is no real dispute, but a fake case is created to obtain a favorable judgment.

4. Evidentiary Value of Such Judgments

• A judgment obtained by fraud or collusion loses all legal value
• It cannot operate as res judicata
• It cannot be enforced or relied upon in subsequent proceedings

👉 Accepting such judgments would encourage unfair and illegal practices.

5. Judicial PrincipleIn A.V. Papayya Sastry v Government of A.P., the Supreme Court held:

• A judgment obtained by fraud is not a judgment in the eyes of law
• It is a nullity (non-existent legally)
• It can be challenged:
  • At any time
  • In any court
  • Even in collateral proceedings

This principle is based on the famous maxim:
👉 “Fraud vitiates all judicial acts.”

6. Key Takeaways

• Section 38 allows a party to challenge a judgment’s validity.
• Grounds include:
  • Lack of jurisdiction
  • Fraud
  • Collusion
• Such judgments are:
  • Void and unenforceable
  • Not binding as res judicata
• They can be challenged anytime and anywhere

7. Opinions of Third Persons (Sections 39–45 Overview)

• General Rule: Witnesses should state facts, not opinions
• Reason: Giving opinions would amount to usurping judicial function

In Mubarik Ali Ahmed v State of Bombay, it was observed that:

• Allowing witnesses to give opinions may amount to delegation of judicial duty

Exceptions to the RuleThe law allows opinions in certain cases:

• Sections 39–40 → Expert opinions
• Sections 41–44 → Non-expert opinions (e.g., handwriting, relationship, custom)
• Section 45 → Grounds of opinion

👉 These provisions create limited exceptions where opinion evidence becomes relevant.

8. One-Line Summary👉 A judgment obtained by fraud, collusion, or without jurisdiction is a nullity and can be challenged at any stage.