Section 38 – Bharatiya Sakshya Adhiniyam (BSA) – Fraud Or Collusion In Obtaining Judgment, Or Incompetency Of Court, May Be Proved.

Code

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 34, 35 or 36, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

 Explanation

Section 38 introduces an important exception: even if a judgment, order, or decree is deemed relevant under Sections 34, 35, or 36, it can be challenged on two specific grounds:

1.  Lack of Competence: The court that delivered the judgment was not legally authorized to do so.
2.  Fraud or Collusion: The judgment was obtained by dishonest or deceptive means.

Essentially, this provision ensures that relevance alone does not make a judgment immune to scrutiny.

 Illustration

Let’s say Party A produces a judgment under Section 35 declaring their legal title to a property. Party B, the opposing party, can argue:

• The court which passed that judgment had no territorial or pecuniary jurisdiction.
• A obtained the judgment by producing false documents or by colluding with a third party.

Such a challenge is valid under Section 38.

 Common Questions and Answers

1. Can I challenge a judgment just because it’s unfavorable?

No. Section 38 allows a challenge only if the court lacked competence or the judgment was obtained through fraud or collusion.

2. Does this section invalidate all judgments that are relevant?

No. It simply permits a party to rebut the effect of a relevant judgment by proving incompetence, fraud, or collusion.

3. Is proving fraud or collusion difficult?

Yes, it typically requires clear and convincing evidence. Courts are cautious in overturning judgments on these grounds.