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Affidavits under Order XIX CPC

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Published on: November 26, 2010

Oxford Dictionary defines Affidavit as a written statement made on oath or faith, intended to be used as a proof in Judicial Proceedings. There are however various definitions of the term “Affidavit” which in crux gives the same meaning. Let’s have a glance at some of these definitions:

1.1: DEFINITIONS – An Affidavit is a statement written and sworn to in the presence of someone authorized to administer an oath, such as a notary public.

§ An affidavit is a formal sworn statement of fact, signed by the author, who is called the affiant or deponent, and witnessed as to the authenticity of the affiant’s signature by a taker of oaths, such as a notary public or commissioner of oaths. The name is Medieval Latin for he has declared upon oath. An affidavit is a type of verified statement or showing, or in other words, it contains a verification, meaning it is under oath or penalty of perjury, and this serves as evidence to its veracity and is required for court proceedings.

§ An Affidavit is a declaration of certain facts made in writing by a person. It can be a statement, or a declaration on oath. It can also be an affirmation before a person having the authority to administer the oath, such as a notary Affidavits are essential for almost all transactions with legal consequences. Very often you will be required to file an affidavit either in a court or before other authorities or tribunals to legally prove certain facts. For example, if you want to change your name then you have to file an affidavit stating that your name is XYZ, that you are of sound mind and that you want to change your name to ABC.

§ An Affidavit is a written declaration made under oath before a notary public or other authorized officer.

§ A written statement of facts signed by an individual and notarized. Affidavits are used in many aspects of the court are often filed with court documents.

§ A written statement, signed before a notary, in which the person swears to the notary that the statement is true.

§ An Affidavit is a document containing information the person swears to be true. Usually sworn to in the presence of a Notary Public.

§ A written statement, usually given while under oath or in the presence of a notary.

§ An Affidavit is a written statement of fact made voluntarily, confirmed by the oath or affirmation of the party making it, and signed before a notary or other officer empowered to administer such oaths. Affidavits generally name the place of execution and certify that the person making it states certain facts and appeared before the officer on a certain date and “subscribed and swore” to the statement.

1.2: SOME COMMON ILLUSTRATIONS

You have lost your University marks sheet and would like to get a duplicate copy, you will have to produce an affidavit stating that you have lost your marks sheet.

You are shifting your residence to another city and you want to transfer your ration card and show your changed address. You will have to file an affidavit with the authorities.

You need a passport urgently and you need to provide proof of your permanent address. You can do so by making a statement through an affidavit.

You want to change your name. You will have to produce an affidavit stating the same.

Affidavits are also used in financial matters within the court, such as bankruptcy financial affidavits and family law financial affidavits. As with any other affidavit, the affiant is swearing to the truth of the content of the affidavit.

A financial affidavit lists the affiant’s income, tax obligations, assets and liabilities. It also lists contingent assets and liabilities. Certain states require both parties to a divorce to file a family law financial affidavit.

Bankruptcy court also requires the filing of a financial affidavit.

1.3: USES OF AFFIDAVIT

§ One use of an affidavit is to allow evidence to be gathered from witnesses or participants that may not be available to testify in person before the court

§ To allow evidence to be gathered from witnesses or participants who may not be available to testify in person before the court, or who may otherwise fear for their safety if their true identities are revealed in court.

§ To obtain a declaration on a legal document, such as an application for voter registration, that the information provided by the applicant is truthful to the best of the applicant’s knowledge. If, after signing such a declaration, the information is found to be deliberately untrue with the intent to deceive, the applicant may face perjury charges.

§ Affidavits are used to support certain complaints or petitions in a court of law. Signing an affidavit and filing it with the court tells the court that you know the facts listed within are, to the best of your knowledge, true and correct.

§ Generally, affidavits have weak evidentiary value as they are considered hearsay under the hearsay rules of evidence.  Even if an affidavit is not opposed by a counter affidavit, it is accepted with caution.  The evidentiary value of an affidavit may go up if an affiant states noting but facts in the affidavit, and later testifies to the same facts in court.

PART II: AFFIDAVIT AND CODE OF CIVIL PROCEDURE

Order XIX of CPC deals with the Affidavit. It lays down the three rules wrt Affidavit which in turn speaks about its essentials, scope, content, admissibility as evidence, etc. Before discussing these features let’s have a glance at the relevant Order in the CPC.

II.1 ORDER XIX -AFFIDAVIT

RULE 1: Power to order any point to be proved by affidavit- Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:

Provided that where it appears to the court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

RULE 2: Power to order attendance of deponent for cross examination- 1) upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross examination of the deponent.

2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court or the court otherwise directs.

RULE 3: Matters to which affidavits shall be confined- 1) affidavit shall be confined to such facts as the deponent is able of his knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

2) the costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

11.2: APPLICATION OF ORER 19

In order to understand the application of this order we need to discuss the individual applicability of the underlying rules.

APPLICATION OF R1: Rule 1 of O 19 is not applicable under all circumstances. It is contrary to the practice to act on affidavit evidence in matrimonial cases. It has been observed that affidavit is not admissible as evidence in execution proceedings, but this is based on the view that this order applies only to interlocutary and not substantive applications. However, principles analogous to this rule are applicable to proceedings under the Rent Control Acts, also to election petitions under the Represenation of the Peoples Act 1951 and to proceedings under S. 146 of the code of criminal procedure, as such proceedings are part of proceedings under s. 145, which in express terms permit evidence by affidavits.

The Calcutta HC in the original side follows the company rules which govern , proceedings under the Companies Act and thus, overrides the general provisions of the CPC. In this case, a verification which is in accordance with those rules is valid, though it does not comply with reference to an affidavit, which is in accordance with rules framed under the Representation of the Peoples Act 1951.

At the same time, an affidavit without verification is not admissible in evidence as it is from verification that the court can find out which facts are proved on affidavit evidence. Statement in affidavit as to which of the paras or part of the para are true to the personal knowledge of deponent and which paras are true on the basis of information and belief will render the affidavit as not affidavit in the eyes of law.

An application for interim maintenance pendent elite under the HMA 1955 can be disposed of on affidavits. The behind s 24 of the HMA is to provide immediate necessary financial support to the party in a matrimonial proceeding. If such proceeding is to be disposed of as a suit after taking evidence under all circumstances, the whole purpose of the provision would be frustrated. Even in the case of affidavit under O 39, r 1, the court can call for cross-examination. However, where the application for cross examination of defendant is filed with the sole object of avoiding early disposal of injunction matter, the same deserves to be rejected.

APPLCATION OF RULE 2: Rule 2 of O19 does not apply to interlocutory applications such as applications for interim injunction under O 39, r1 confers unfettered power on the court to decide such applications on the basis of affidavits and the power is not subject to this rule. The Gauhati HC is of the opinion that affidavits can also be filed for disposal of ad interim applications for injunction. Order 19, r2 does not apply to suits.

APPLICATION OF RULE 3: Applicability to petition for winding up of a company.This rule is relevant and used in writ proceedings.Defect in affidavit as to the form is not fatal.When an affidavit denies an averment the denial carries wit it the inevitable connotation that the denial is based upon knowledge and not merely upon ignorance of true facts. A defective affidavit is not fatal and in proper cases, the petiotner may be allowed to file correct affidavit. A counsel who is verifying the affidavit of his client must check that the facts are true and verified in accordance with the rules contained in O 19 of the code.Facts which are based on legal advise or on record must also be made clear. Return to a rule issued in civil writ cases has to be made on affidavits satisfying requirements of O 19 r3 verification is one of the essentials of affidavit. Unless the affidavit is not properly verified by the deponent, it is against r3.

II.3: DISTINCTION BETWEEN THE R 1 AND R2

distinction between r1 and r2. Affidavits contemplated in r1 are affidavits taken by way of evidence in order to prove a particular fact or facts. Here proof does not mean prima facie proof but the final proof. On the other hand under r2 a discretion vests in the court both in the matter of taking evidence by way of affidavits and also in ordering the attendance of those persons for cross examination. Secondly if r1 contemplates affidavits in proof of facts, r2 contemplates affidavits in support of or against applications. Moreover R1 is a general power and r2 is restricted to ‘any application’. The word ‘any’ here means any and there is no scope to restrict its generality. Under the provisions of r1 and r2, the court has ample power to dispose of any matter including a matter falling under O.39 on affidavits and also other evidences, An application under O 39 can be dealt with only on the basis of affidavits without more. It can be said that in such case r2 applies and not the r1.

PART III. ESSENTIAL CHARACTERSTICS OF AN AFFIDAVIT –UNDER ORDER XIX CPC

From the rules under Order xix, the general meaning of the affidavit and judicial pronouncements following are the major essential features of affidavit:

§ Affidavits are used in a court of law to swear to facts in a document–the document can be a complaint/petition or a motion. A common place where an affidavit is used is a domestic violence case within a divorce case. Sometimes a party does not want to file a restraining order, but wants custody of the minor children because the spouse is allegedly doing something that is not in the best interest of the minor children. An affidavit is used by the accuser to list the facts. Though affidavits are signed, witnessed and notarized, most courts consider them hearsay and require the affiant to testify that he did indeed sign the affidavit and that the allegations contained in the affidavit are true.

§ Affidavits must be either affirmed as true to knowledge or from information received provided the source of information is disclosed, or as to what the defendant believes to be true provided that the grounds for such belief are stated. It is easy to see that the words ‘to the best of my knowledge” means accepted.

§ An affidavit which is not properly verified is not affidavit in the eye of law. An improperly verified affidavit cannot be cured under S.7 of the Oaths Act 1969

§ Affidavit in which there is no invocation of God or reference to solemn affirmation are not affidavits made on oath and therefore, no affidavits at all and as such cannot be admissible as evidence in proceedings Under S.145 of CrPC

§ An affidavit stating that the statements made in the affidavit are true to the knowledge and belief is not a proper affidavit. It must also state the grounds of belief.

§ Swearing is one of the essentials. Affidavit not sworn before but simply attested by judicial officer does not amount to an affidavit of the signatory.

§ Verification of the affidavit is very necessary. Deponent must verify as to which all facts are true to his knowledge and which all he believes to be true. Deponent not clearly stating as to which statement is the statement of knowledge and which is of belief- there is violation of r3 and such affidavit is not acceptable.

§ Declaration before a notary public is not an affidavit. An affidavit can be made on solemn affirmation only.

§ Although proceedings under r2 are not judicial proceedings but Principals of natural justice have to be followed.

PART IV: AFFIDAVIT AS AN EVIDENCE

An affidavit is not evidence unless the person seeking to use it complies with the requirements of 0.19.Affidavits are not included in the definition of evidence in s.3, Evidance Act but on the contrary they are expressly excluded by s.1 of that ACT. That means that affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act. Affidavits can however be used as evidence under O 19, CPC. Under O 19, r1 affidavit evidence cannot be entertained unless the court passes an order for sufficient reason that any particular fact or facts may be proved by affidavits. While passing an order O19 r1 to call for evidence on affidavits, it is necessary to consider compliance with the proviso to r1 and with the requirements of r2 under 0 19 as the circumstances of each case may require. Where affidavits are filed in support of applications and are received by the court, the order receiving the affidavit is tantamount to passing an order under O.19, r1 of the CPC and complies with the law.

Where plaintiff sought to fill up the lacuna in evidence belatedly at the SC stage, it was held that the plaintiff could not be allowed to do so by relying on the affidavit filed in the SC.. It is not open to a party to brush aside the averments of his opponent made in affidavit filed in support of his application merely stating that the allegations were untrue. A statement on oath , whether true or false, has to be met by a counter affidavit in reply, or by challenging the statement by cross examining the deponent. If it is not done it would be presumed that the allegations, if untrue, would have been rebutted by the other side.

The position of affidavits is that of a statement on oath. Their importance is enhanced in proceedings like a writ where no parole evidence is recorded and if a party makes a definite allegation and the other party does not controvert it nor summons the deponent of the affidavit for cross examination, the only conclusion at which court can arrive is that the allegations being uncontroverted and not challenged by cross examination ust be accepted.

The judicial opinion is divided on the question whether affidavit is in itself evidence on which the court could act. One view is that it is not included in the definition of evidence in s3 of the Evidence Act and is excluded from it by s1 and it is, therefore, not evidence unless the parties agree to treat it as evidence or the court makes an order under this rule. As against this, it has been observed that it is an affirmation on oath, which must stand unless it is contradicted and that the right of the opponent is only to call the deponent for cross examination under r2. These decisions were reviewed by HC of Mysore in Munibasappa v Gurusiddaraja, and the law was thus stated that ordinarily, evidence has to be recorded viva-voce in the court as provided by r4 and O18, CPC. The order of attendance of deponent of the affidavit for cross examination is absolutely a discretion of the court. Absolute discretion does not mean arbitrary but judicious discretion having justice oriented approach in summoning the deponent of an affidavit for cross examination. Order of attendance of deponent for cross examination would not ordinarily be made, unless the court is satisfied and convinced that application for summoning the deponent for cross examination is bona fide and summoning of deponent for cross examination is necessary in the interest of justice. Unless both the conditions co exists the subordinate courts have no jurisdiction to summon the deponent for cross examination under O19, r2 of the CPC.

For the purpose of disposal of matters in a suit there cannot be any strict procedural norm for disposal either only on the basis of affidavits of the parties or by recording their evidence. If the parties agree that a particular fact be decided by affidavit, then the court would certainly adopt such a procedure. Even where the parties do not agree, the court may adopt such procedure if it is satisfied that it would afford full opportunity to parties to prove their point.Affidavits per se do not become evidence. Affidavits do not constitute evidence in the case. Yet in another case court held as to when an affidavit is to be treated as evidence- in cases of matter of vital importance; affidavit filed suo moto by party.

However an affidavit does not cease to be evidence of the facts alleged therein merely because the opponent party verbally denies them without any attempt at controversial by a counter affidavit or without request for the attendance of the deponent to go into the witness box voluntarily, though no demand or request has been made from other side.In a proper case, it is permissible for the court to dispose of a matter relating to applications for temporary injunctions on affidavits. The court may also summon deponents for cross examination. Further in appropriate cases court should permit any fact in issue to be proved by affidavits of witnesses, as otherwise such affidavit cannot be taken into consideration for any purpose whatsoever.Averments made in affidavits in support of interlocutory applications may be taken as prima facie proof of facts alleged in the application.Courts have even said that mode of evidence should be by evidence only when allowed..

PART V- CONCLUSION

After going through various definitions of Affidavit we can summaries it as a statement or declaration of certain facts made in writing by a person and made on oath, , signed before a notary, in which the person swears to the notary that the statement is true. O XIX of CPC deals with Affidavit and there are three rules under the said Order. An affidavit on the basis of this order and judicial pronouncements and general practice has certain features like proper verification, invocation of God, application of PNJ, cross examination, truth and knowledge of truth. Controversy exists as whether it can be used as evidence or not? Judicial opinion is divided on this point. Evidence Act strictly debars it as evidence. However still there are cases when it has evidentiary value. Further judicial interference and proper law on this point is required to solve any confusion. Rule or provision should expressly say about its evidentiary value in the court of law separately under various types of matters.

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