AFFIDAVITS Code of Civil Procedure

PAPER ON

AFFIDAVITS (ORDER XIX)

UNDER THE GUIDANCE OF: Dr. S.R. SUBRAMANIAN

SUBMITTED FOR THE PURPOSE OF INTERNAL ASSESSMENT

CODE OF CIVIL PROCEDURE

SECOND SEMESTER

PREPARED BY:
BALAGA THILAK KUMAR
(17IP63010)
APRIL, 2018.
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AFFIDAVITS Code of Civil Procedure

INTRODUCTION:

The word ‘Affidavit’ originated from the Latin word ‘Affidare’ which means oath. It started
getting used around 16th century.
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent
under an oath or affirmation administered by a person authorized to do so by law.
An affidavit may be written in the first or third person, depending on who drafted the
document. If in the first person, the document’s component parts are typically as follows:
A commencement which identifies the “affiant of truth”, generally stating that everything in
it is true, under penalty of perjury, fine or imprisonment.
An attestation clause at the end certifying the affiant made oath and the date
Signatures of the author and witness.
If an affidavit is notarized or authenticated, it will also include a caption with a venue and
title in reference to judicial proceedings. In some cases, an introductory clause, called a
preamble, is added attesting that the affiant personally appeared before the authenticating
authority.
Affidavits are dealt with order 29 of the Code of Civil Procedure, 1908.

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AFFIDAVITS UNDER ORDER 19 CPC

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 bonafide 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.
The Allahabad high court in its exclusive amendment inserted the following rule after rule
1:
“ 1-A. Power to permit ex parte evidence on affidavit:- Where the case proceeds ex parte,
the court may permit the evidence of the plaintiff to be given on affidavit. “
Several other states also amended this rule.
Madhya Pradesh:- The following amendments were made by Madhya Pradesh Act 29 of
1984,
“1-A. Proof of fact by affidavit in certain cases:- Notwithstanding anything to the contrary in
rule 1, the Court proceeding under the Madhya Pradesh Ceiling on Agricultural Holdings
Act,1960 (No.20 of 1960) are pending before the competent authority appointed under that
Act, call upon the parties to prove any particular fact or facts as it may direct, by affidavit,
unless the court looking to the nature and complexity of the suit or proceeding and for
reasons to be recorded in writing deems it just and expedient to dispense with the proof of
a fact or facts by affidavits.”
Uttar Pradesh amendment:
The following amendments were made by Uttar Pradesh Act 57 of 1976,
“Provided that if it appears to the court, whether at the instance of either party or
otherwise and whether before or after the filing of such affidavit that the production of such
witness for cross examination is necessary and his attendance can be procured, the Court
shall order the attendance of such witness, whereupon the witness may be examined, cross
examined and reexamine. “
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:

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1)Affidavits shall be confined to such facts as the deponent is able to his own 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 filing the same.

Special amendment
Commercial dispute of a specified value.: In its application to any suit in respect of a
commercial dispute of a Specified value, in order 19, after rule 3, insert the following rules,
namely:-
“4. Court may control evidence:-
1) The Court may, by directions, regulate the evidence as to issues on which it requires
evidence and the manner in which such evidence may be placed before the Court.
2) The Court may, in its discretion and for reasons to be recorded in writing, exclude
evidence that would otherwise be produced by the parties.
5. Redacting or rejecting evidence:-
A Court may, in its discretion, for reasons to be recorded in writing-
1) Redact or order the redaction of such portions of the affidavit of examination-in-chief as
do not, in its view, constitute evidence; or
2) Return or reject an affidavit of examination-in-chief as not constituting admissible
evidence.
6. Format and guidelines of affidavit of evidence:-
An affidavit must comply with the form and requirements set forth below:
a)such affidavit should be confined to, and should follow the chronological sequence of, the
dates and events that are relevant for proving any fact or any other matter dealt with;
b)where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or
contains the legal grounds of any party’s case , the Court may, by order, strike out the
affidavit or such parts of the affidavit , as it deems fit and proper;
c) Each paragraph of an affidavit should, as far as possible, be confined to a distant portion
of the subject;
d) An affidavit shall state-
1) Which of the statements in it are made from the deponent’s own knowledge and which
matters of information or belief; and

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2) The source for any matters of information or belief;

e) An affidavit should –
1) Have the pages numbered consecutively as a separate document (or as one of several
documents contained in a file).
2) Be divided into numbered paragraphs.
3) Have all numbers, including sales, expressed in figures and
4) If any of the documents referred to in the body of the affidavit are annexed to the
affidavit or any other pleadings, give the annexures and page numbers if such documents
that are relied upon.”
In a High court amendment Allahabad High Court added the following rules:
4. Affidavits shall be entitled In… the court of…..at…..(naming such court). If the affidavit be
in support of, or in opposition to, an application respecting any case in the court, it shall be
entitled in such case. If there be no such case it shall be entitled In the matter of petition of.
5. Affidavits shall be divided into paragraphs, and every paragraph shall be numbered
consecutively and, as may be, shall be confined to a distant portion of the subject.
6. Every person making any affidavit shall be described therein in such manner as shall serve
to identify hum clearly; and where necessary for this purpose, it shall contain the full name,
the name of his father, of his caste or religious persuasion, his rank or degree in life, his
profession, calling, occupation or trade, and the true place of his residence.
7. Unless it be otherwise provided, an affidavit may be made by any person having
cognizance of the facts deposed to. Two or more persons may join in an affidavit; each shall
depose separately to those facts, which are within his own knowledge, and such facts shall
be stated in separate paragraphs.
8. When the declarant in any affidavit speaks to any fact within his own knowledge, he must
do so directly and positively, using the words “I affirm” or “I make oath and say”.
9. Except in interlocutory proceedings, affidavits shall strictly to such facts as the declarant is
able of his own knowledge to prove. In interlocutory proceedings, when the particular fact is
not within the declarant’s own knowledge, but is stated from information obtained from
others, the declarant shall use the expression ”I am informed”, and, if such be the case, “
and verily believe it to be true”, and shall state the name and address of and sufficiently
describe for the purpose of identification, the person or persons from whom he received
such information. When the application or the opposition thereto rests on facts disclosed in
documents or copies of documents produced from any court of justice or other source, the
declarant shall state what is the source from which they were produced , and his
information and belief as to the truth of the facts disclosed in such documents.

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10. When any place is referred to in an affidavit, it shall be correctly described. When in an
affidavit any person is referred to, such person, the correct name and address of such
person, and such further description as may be sufficient for the purpose of the
identification of such person, shall be given in the affidavit.
11. Every person making an affidavit for use in a civil court shall, if not personally known to
the person before whom the affidavit is made shall state at the foot of the affidavit the
name, address , and description of him by whom the identification was made as well as the
time and place of such identification.

11-A. Such identification may be made by a person-

a) Personally acquainted with the person to be identified, or
b) Satisfied, from papers in that person’s possession or otherwise, of his identity:
Provided that in case b) the person so identifying shall sign on the petition or affidavit a
declaration in the following form, after there has been affixed to such declaration in his
presence the thumb impression of the person so identified.
Form:
11.(name , address and description) declare that the person verifying this petition( or
making this affidavit) and alleging himself to be A B has satisfied me (here state by what
means, e.g. from papers in his possession or otherwise ) that he is A B.
12. No verification of a petition and no affidavit purporting to have been made by a
Pardanashin woman who has not appeared unveiled before the person before whom the
verification or affidavit was made, shall be used unless she has been identified in manner
already specified and unless such petition or affidavit of identification of such woman made
at time by the person who identified her.
13. The person before whom any affidavit is about to be made shall , before the same is
made, ask the person proposing to make such affidavit if he has read the affidavit and
understands the contents thereof , and appears to be a illiterate , the person before whom
the affidavit is about to be made shall read and explain, or cause some other competent
person to read and explain in his presence , the affidavit to the person proposing to make
the same, and when the person before whom the affidavit is about to be made is thus
satisfied that the person proposing to make such affidavit understands the contents thereof,
the affidavit may be made.

14. The person before whom an affidavit is made, shall certify at the foot of the affidavit the
fact of the making of the affidavit the fact of the making –of the affidavit before him and the
time and place when and where wit was made, and shall for the purpose of identification
mark and initial any exhibits referred to in the affidavit.

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15. If it be found necessary to correct any clerical error in any affidavit, such correction may
be made in the presence of the person before whom the affidavit is about to be made, and
before, but not after the affidavit is made, and shall be made in such manner, as not to
render it impossible or difficult to read the original word or words, figure or figures, in
respect of which the correction may have been made.

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ANALYSIS:

Affidavit is a concept which is as old as law.

Rule 1 deals with the power of court. Affidavits have become an important mechanism to
validate and ensure the knowledge of facts of a person. So rule 1 gives court the authority to
do exactly that. But this section makes it clear that either party has desires a witness to
come to cross examination. While providing an affidavit cross examination plays an
important role.
Rule 2. Deals with the attendance of a deponent. This power which is vested in the
honorable court plays an important role because cross examination is a method in which a
witness’s affidavit is scrutinized, examined and questioned by the other party. It gives a
chance for the other party to prove or disprove certain facts that they want to in the
affidavit given by the witness.

Though affidavits are widely used to attest some facts, there is a chance that they can be
blatantly misused. That is dealt with in rule 3 which restricts the matters in which an
affidavit shall be confined.

Only matters which the deponent is able of his own knowledge should be used, the matters
which are based on belief cannot be used. They can be used only in interlocutory
applications after stating the grounds.

After this a special amendment was made in respect of a commercial dispute. Though this
special amendment is related mostly to commercial dispute, the format of the affidavit
described in this special amendment is widely used in all affidavits.

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DEVELOPMENT IN COURTS:

In Ram Ekwal Thakur v. State of Bihar1, the Court may any time adduce evidence by affidavit
on assigning sufficient reasons. This particular case is about a sale deed registered about the
lands in question where the state of Bihar argued that the land belonged to them.

In Sudha devi v. M.P.Narayanan2, the court said affidavits are not included in the definition
of evidence. In this case the plaintiff filed a suit for ejectment of the tenant for default in
payment of rent and also to have wrongfully sublet the flat to the second defendant.

In Marineedi Satyam v Venkataswami3 which is a case about a titled house and site sought
to be recovered by the plaintiff on basis of a sale deed in favor of his father execute , the
court said that affidavit cannot be treated as evidence unless the parties agree.

In Serbanti Goswami v Sagnik Goswami4 which a case for divorce, the court while deciding
the application for maintenance pendent lite, the court can act on documents upon
requisition from the husband’s employer, supported by affidavit. Thus the court considered
affidavit as evidence in this particular case.

In another case Sambit Parija v Surita Parija5 case, the court said an application for interim
maintenance pendente lite can be disposed of on affidavits.

In AKK Nambiar v Union of India6, the court said 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.

In Sukhminder Paul v State of Punjab7, the court said that a person deposing by affidavit
must disclose the nature and source of his knowledge with sufficient particularity.

1
AIR 1994 Pat 107
2
1988 AIR 1381
3
1949 MLJ 434
4
AIR 2002 Cal 48
5
AIR 2002 Ori 22
6
1970 AIR 652
7
1994 SCR 1061

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In a very peculiar case Rural Litigation and Entitlement Kendra v State of U.P8, Supreme
court directed the Union of India to file an affidavit. The affidavit was filed by the secretary
of the Government. It cannot be brushed aside on the ground that the statement therein
indicates the department’s submission to court and not that of the Union of India. In the
circumstances, it could be assumed that the Secretary disclosed the stand of Union of India
with full authority and with the intention of binding the Union of India by his statement.

8
1985 AIR 652

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CONCLUSION:
Affidavits are important instruments of the procedure of judicial process. The have
been an integral part of the present legal system since its beginnings. Affidavits can be used
as evidences with or without the instance of parties on which judicial opinion is varied. The
main form of affidavit should include date, time, place in which the affidavit is being given.
The affidavit in its paragraph should always differentiate what is true to his own knowledge
and what he believes to be true. Different paragraphs must be used for both of these
different portions.
Therefore, a person should be really careful while filing an affidavit.

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