Affidavits

An affidavit is a written statement from an individual which is

sworn to be true. It is an oath that what the individual is saying
is the truth. An affidavit is used along with witness statements to
prove the truthfulness of a certain statement in court.
An affidavit is a voluntary declaration in writing by a person
(the deponent) who executes, swears, verifies, affirms on oath.
Such a person also declares that the contents mentioned in the
said declaration are true and correct and nothing has been
concealed or misstated therein. He also verifies the authenticity
of the same. The deponent has the option to just sign the
affidavit or to sign it in front of a notary public, S.E.M. or Oaths
Commissioner. In Indian law, although an affidavit may be
taken as proof of the facts stated therein, the Courts have no
jurisdiction to admit evidence by way of affidavit. Affidavit is
treated as “evidence” within the meaning of Section 3 of the
Evidence Act.
Contents of affidavits
(i) Every affidavit containing any statement of facts shall be
divided into paragraphs, and every paragraph shall be numbered
consecutively, and, as nearly as may be, shall be confined to a
distinct portion of the subject. (ii) Every person, other than a
plaintiff or defendant in a suit in which the application is made
shall be clearly identified. This is to say, by the statement of his
full name, the name of his father, his profession or trade, and the
place of his residence. (iii) When the person in any affidavit
speaks to any facts within his own knowledge, he must do so
directly and positively, using the words “I affirm” or “I make
oath any say”. (iv) When the particular fact is not within the
person’s own knowledge, but is stated from information
obtained from others, the person must use the expression “I am
informed”, and, if such be the case, should add “and verily
believe it to be true” or he may state the source from which he
received such information. When the statement rests on facts
disclosed in documents, or copies of documents procured from
any Court of Justice or other source, the person shall specify the
source from which they were procured, and state his
information or belief as to the truth of the facts disclosed in such
documents. Filing a false affidavit on oath is a punishable
offence. False information in an affidavit can lead to perjury
charge against a deponent. However if a deponent forgets to
include something or omits something in the affidavit then he
cannot be penalized for such omission.
Completing an affidavit
When completing an affidavit, you must ensure that you set out your
account of the facts/events exactly as they happened. Take care to ensure
that you have read the affidavit to ensure that it is correct.
As the document is accompanied by an oath that is legally binding, it is
imperative to ensure that the facts are clearly and accurately represented.
If any errors are found in the affidavit, they should be corrected before
the affidavit is signed. This is a condition, regardless of whether it is
convenient for the officials taking down the information and witnessing
the document.
If an individual knowingly makes a false affidavit by making a statement
which is false, then they can be found to have committed contempt of
court.
Execution of an affidavit
If an individual is completing an affidavit, then in most cases, the
document must be signed in the presence of a solicitor or other person
commissioned to receive oaths (eg a notary public or another judicial
officer who has administered the oath). The purpose of this is to check
that your signature is valid.
If you sign your affidavit in front of a solicitor, they will usually be
entitled to charge a fee for swearing the affidavit. If this process is done
at court, there will be no charge.
Who can offer an affidavit?
An individual can offer an affidavit, as long as they have the mental
capacity to understand the seriousness of the oath. The contents of an
affidavit reflect the personal knowledge of the individual making the
statement. This means that an individual making an affidavit cannot be
penalised for failing to include information of which they were not
aware.
Personal knowledge can in some circumstances, include personal
opinion rather than fact.
In certain cases, an affidavit can be offered on behalf of somebody else.
This may be the case in relation to the guardianship of an individual who
is severely mentally ill.
When should an affidavit be used?
You are required to use an affidavit in the following circumstances:

 Divorce proceedings, eg that both spouses have agreed to dissolve the

marriage.
 Property disputes, eg how somebody came to inherit or purchase certain
property.
 Debt cases, eg the circumstances leading to the debt and the fact that the
debt is still outstanding.
An affidavit is a required piece of documentation in any dispute before a
court. You will be prompted on their use when the rules of the court
require them.
Case Study
Madras High Court
S.Amutha vs C.Manivanna Bhupathy on 2 February, 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 02.02.2007

Coram

The Honourable Mr. Justice K.CHANDRU

C.R.P. (PD) No. 1076 of 2006

S.Amutha .. Petitioner

Vs

C.Manivanna Bhupathy .. Respondent

Petition filed under Article 227 of the

Constitution of India for the reasons as stated
therein.

For Petitioner : Mr.K.Thilageswaran

For Respondent : Mr.I.C.Vasudevan

ORDER
This Civil Revision Petition has been filed against the order of dismissal
dated 13.4.2006 passed in I.A.No.98 of 2006 in H.M.O.P.No.76 of 2005
on the file of the Principal Sub-Judge, Erode.

2. This is a case of an husband and wife fighting over the matrimonial

cause relating to the dissolution of their marriage before the trial Court
and have put their child on a burner unmindful of its future consequences.
This is not a case where the King Solomon's rule can be applied and ask
the child to be cut by a sword to find out the real mother. But in this case,
the real father and the mother are fighting and the child is called as a
witness to speak about the truth or otherwise of the averments made in the
pleadings filed by them before the trial Court. The father has brought the
minor son and had put him on the witness stand to speak against his
mother and the mother has objected to the same. The trial Court has
brushed aside the objection of the mother (the revision petitioner herein)
and held that the child witness was competent to speak about the dispute
between the wife (petitioner) and the husband (respondent) and taken on
record the sworn affidavit filed by the minor. The question raised in this
Civil Revision Petition is whether such an action is permissible in law.
Illustration

AFFIDAVIT
Herein, I Shri ________ s/o ________, age ________ years, occupation ________,
resident of ________ do hereby state on solemn affirmation as under:
That, Master ________ is my eldest son, who was born on __________ at _________.
The delivery has taken place at ___________.
That, I could not inform the Registrar of Births about the date of birth, etc., within time
because I was medically disabled to travel. Therefore, the delay in informing the birth of my son
is not intentional but bona fide.
I state that ______th ______, 19__ is the date of birth of my son Master ______.
Therefore, for the bona fide reasons enumerated above, the delay may kindly be
condoned and the date of birth of my son Master ________ be registered in the Register of
Births.
This affidavit is made to produce before the Registrar of Births, Belgaum Municipal
Corporation, Belgaum.

DEPONENT
I know the Deponent
(Name of the Advocate)
Advocate
Conclusion
An affidavit is statement of facts which is sworn to (or affirmed) before an officer
who has authority to administer an oath (e.g. a notary public). The person making
the signed statement (affiant) takes an oath that the contents are, to the best of their
knowledge, true. It is also signed by a notary or some other judicial officer that can
administer oaths, affirming that the person signing the affidavit was under oath
when doing so. These documents are valuable to presenting evidence in court when
a witness is unavailable to testify in person. Affidavits may preserve the testimony
of persons who are unable to appear in court due to illness, incarceration, moving
out-of-state, death, etc. Judges frequently accept an affidavit instead of the
testimony of the witness and are used in place of live testimony in many
circumstances (for example, when a motion is filed, a supporting affidavit may be
filed with it).
An affidavit generally consists of statements of fact regarding the issue at hand,
with a section at the bottom for the affiant to swear to the truth of the statements
made and affix his/her signature, which is then notarized in a jurat. A jurat is the
bottom part of an affidavit where the officer certifies that the document was
"sworn" before him. Jurat notarizations are required for transactions where the
signer must attest to the content of the document, such as all affidavits and
pleadings in court. It is a certification on an affidavit declaring when, where and
before whom it was sworn.
In executing a jurat, a notary guarantees that the signer personally appeared before
the notary, was given an oath or affirmation by the notary attesting to the
truthfulness of the document, and signed the document in the notary's presence. It
is always important that the notary positively identify a signer for a jurat, as s/he is
certifying that the signer attested to the truthfulness of the document contents
under penalty of perjury. However, jurat notarizations do not prove a document is
true, legal, valid or enforceable.
Suits
General concept of suit
The term suit is not defined under the in the C.P.C. but by various
decisions it can be said that “Suit ordinarily means a civil proceedings
instituted by presentation of a plaint. Civil suit is the institution of
litigation for enforcement of civil rights (or substantive rights, it may be
against state or individual). A suit is resulted into decree. Without suit
there can not be a decree.
There are four essentials of a suit.
Name of Parties (there must be two opposing parties) – In a suit there
must be at least two parties the plaintiff & the defendant. There is no
limitation with regards to number on either side.
Cause of Actions – it is a set of facts or circumstances that a plaintiff is
required to prove. A person is party to a suit if there is a cause of action
against him. The cause or the set of events or circumstances which leads
or resulted into presentation of a plaint or filing a suit. – lay man language
Legally – The cause of action means every facts which is necessary for
the plaintiff(s) to be proved with a view to obtain a decree in his favour.
Cause of action means all essential facts constituting the right and its
infringement.
Every plaint must disclose a cause of action if not, it is the duty of the
court to reject the plaint – O.7, R.11
Subject matter – there must be a subject matter (with what respect or
aspect civil dispute is).
Section-9. Courts to try all civil suits unless barred. The Courts shall
(subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either
expressly or impliedly barred.
Explanation I: A suit in which the right to property or to an office is
contested is a suit of a civil nature, notwithstanding that such right may
depend entirely on the decision of questions as to religious rites or
ceremonies.
Explanation II: For the purposes of this section, it is immaterial whether
or not any fees are attached to the office referred to in Explanation I or
whether or not such office is attached to a particular place.
Relief claimed by the plaintiff – no court will give relief unless relief is
specifically claimed by the party
Relief is of two types-
1) specific relief and
2) alternative relief.
Various stages of civil suit
1. Institution of suit or commencement of suit.
2. Service of summon.
3. Written statement
4. First hearing and framing of issues.
5. Discovery.
6. Production of evidence and final hearing.
7. Arguments.
8. Judgment.
9. Preparation of decree.
10. Execution of decree.
Every suit shall be instituted by presentation of a plaint and (every plaint shall be
proved by affidavit) by amendment of 2002.- Sec.26
 Every suit shall be instituted by presenting a (plaint in duplicate to the
court) by amendment of 1999.
 Every plaint shall comply the rules contained in O.VI & VII of C.P.C.
 A plaint shall not deemed to be duly instituted unless it complies the
provisions of O.IV R. 1 & 2.
 Particulars of every suit be entered in a book called register of civil suit.
 When a suit has been instituted, a summon may be issued to the defendant
to appear and answer the claim and may be served in prescribed manner
(as described in O.V of C.P.C.) – within 30 days (amendment act of 1999)
– S. 27
Section 6 – No Court Shall entertain any suit, the amount or value of the subject
matter of which exceeds the pecuniary limits of its jurisdiction.- Pecuniary
Jurisdiction (Rule – 1)
Section 9 – The court shall have jurisdiction to try all suits of a civil nature excepting
suits of which their cognizance is either expressly or impliedly barred.- Jurisdiction
relating to subject matter – (Rule 2)
Section 15 – Every suit shall be instituted in the court of the lowest grade competent
to try it. – (Rule -3)
Product where defendant is suing plaintiff
R.3. Where any of the defendants in an interpleader-suit is actually suing the plaintiff
in respect of the subject-matter of such suit, the Court in which the suit against the
plaintiff is pending shall, on being informed by the Court in which the interpleader-
suit has been instituted, stay the proceedings as against him; and his costs in the suit
so stayed may be provided for in such suit; but if, and in so far as, they are not
provided for in that suit, they may be added to his costs incurred in the interpleader-
suit.

Legislative changes
Under the old Code proceedings in another suit by the defendant against the
plaintiff could be stayed only after a decree in the interpleader suit. Under the present
rule, such proceedings can be stayed even on the institution of the interpleader suit.

Scope
Before passing an order of stay under Order 35, Rule 3, the Court has to consider
the applicability or otherwise of the bar contained in Order 35, Rule 5 & Order 35,
Rule 3 in clear terms casts an obligation upon the Court which has seized of an
interpleader suit to inform the Court in which suit against plaintiff is pending that an
interpleader suit inter parties and in relation to suit property is pending. In other
words, the information must come only through Court and none else. O. 35, R. 3 is
not applicable to the proceedings before Rent Controller as the said proceedings are
not proceedings in a suit. But where ejectment was sought against petitioner tenant
of Joint Hindu Family firm by two sets of persons one being sons of landlord to
whom the petitioner paid rent and another being purchasers who claimed to have
purchased property from widow of the karta, interpleader suit at the instance of
tenant petitioner was maintainable and was obligatory on the Court to stay the
ejectment proceedings by the filing of the interpleader suit.

Where in an interpleader suit the original plaintiffs are not claiming any title to
the property and in fact the dispute is between the rival defendants, the rights of
tenant would be safeguarded by holding that he would go on depositing the rent in
the Court, till decision of the suit. An appeal lies from an order under this rule. (O.
43, R. 1 (p).)

Illustration
1, 2, 3, 4 are brothers. They are living at different places like A and B. They are
having their immovable ancestral properties at A, B and C. 1 prefers to file a suit for
partition against 2, 3 and 4. He can file the suit at A, B or C i.e where a portion of
the property is situate. But in such cases, the entire suit claim has to be taken into
consideration for purpose of payment of court fee and pecuniary jurisdiction. In the
above example, no doubt the suit for partition can be filed at A provided the total
value of property situated at A, B and C is less than rupees one lakh. This is so
because only Junior Civil Judge Court is located at A. If the total value of the entire
property is more than rupees one lakh the suit cannot be filed at A. The suit can be
filed at B,, or at C where Senior Civil Judge are located. It is clear from the wording
of Section 17 of Civil Procedure Code which runs as follows :

Suits for immovable property situate within jurisdiction of different courts:- Where
a suit is to obtain relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different courts, the suit may be instituted
in any court within the local limits of whose jurisdiction any portion of the property
is situate:

Provided that, in respect of the value of the subject-matter of the suit, the entire claim
is cognizable by such court. '
Case Study

I intend to examine the law on ‘jurisdiction’ in a composite suit involving

Copyright Act, 1957 (“1957 Act”) and the Trade and Merchandise Marks Act, 1958
(“1958 Act”). The contours of the discussion are limited to the recent Supreme
Court judgment in M/s. Paragon Rubber Industries (“Plaintiff”) v. M/s. Pragathi
Rubber Mills & Ors (“Defendants”) WITH M/s. Pragathi Rubber Mills & Ors
v. M/s. Paragon Rubber Industries (“Instant Judgment”), which was decided on
appeals challenging the judgment of the Kerala High Court. Though the 1958 Act is
no longer in force, the discussion is still relevant for the following reasons: a)
implications on pending disputes involving 1957 Act and 1958 Act and b) the
general principles which are applicable across the board. The Instant Judgment
reiterates the principles laid down in Dhodha House v. S.K. Maingi (AIR 2006 SC
730) (“Dhodha”) and Dabur India Ltd. v. K.R. Industries (AIR 2008 SC 3123)
(“Dabur”).
Facts
The Plaintiff, who is based in Kerala, filed a suit against the Defendants at District
Court, Kottayam, Kerala in 2001, claiming relief under the 1957 Act and the 1958
Act. The Defendant, who is based in Punjab, filed I.A under Order VII, Rule XI of
the Code with a prayer for rejection of plaint for want of territorial jurisdiction. The
District Court dismissed the I.A and held that it enjoyed the jurisdiction to entertain
the suit in view of Section 62(2) of the 1957 Act. The Defendant challenged the
aforesaid Order in the High Court.
On concluding that the instant composite suit encompassing the 1957 Act and 1958
Act would not be maintainable for lack of jurisdiction under the 1958 Act (in spite
of jurisdiction under the 1957 Act), the High Court set aside the aforesaid Order of
the trial court. The Plaintiff was, however, given the liberty to amend the plaint. Both
the Plaintiff and the Defendants appealed against the Order of the High Court.
Issue
Although causes of action under the 1957 Act and the 1958 Act are different, can a
suit encompassing the same be ipso facto maintained on the ground that the Court
enjoys jurisdiction under Section 62(2) of the 1957 Act (in spite of lack of
jurisdiction under the 1958 Act)?
Or
Is a composite suit maintainable when a court enjoys jurisdiction over only one
among the ‘n’ causes of action under ‘m’ distinct statutes? In other words, will
jurisdiction over one cause of action negate the effect of lack of jurisdiction over the
other ‘(n-1)’ causes of action?
Judgment
a) 1957 Act, 1958 Act and the Code
While enacting the 1958 Act, the Parliament was aware of the provisions of the 1957
Act. The Parliament did not choose to provide a similar provision in 1958 Act. Such
an omission was a conscious omission and was, therefore, clear and explicit. On the
other hand, while enacting the Trade Marks Act, 1999 (“1999 Act”), the Parliament
provided for an additional forum by enacting Section 134 (2) of the Trade Marks
Act. It is a settled position that the Court shall not readily presume the existence of
jurisdiction of a court which is not conferred by the statute. The Instant Judgment
held that the Plaintiff could not take advantage of Section 134(2) of the 1999 Act.
[Although, the 1999 Act was enacted on 30th December, 1999, it came into force on
15th September, 2003. Since the suit in this case was filed on 19th March, 2001, it
would be adjudicated under the 1958 Act.]
Order II, Rule 3 of the Code contemplates uniting several causes of action in the
same suit. As held in Dhodha, by necessary implication, the cause of action for
infringement of copyright and the cause of action for infringement of trademark or
a cause of action for passing off are different. Even if one cause of action has no
nexus with another, indisputably Order II, Rule 3 of the Code will apply. However,
the application of Order II, Rule 3 of the Code will not ipso facto confer jurisdiction
upon a Court which it otherwise does not enjoy. In other words, Order II, Rule 3 will
not confer a Court with jurisdiction under 1958 Act when the Court does not enjoy
such a jurisdiction.
 Conclusion
The judgment reiterated the principle that a composite suit will not entitle a Court to
entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Also,
the existence of jurisdiction over one cause of action in a composite suit will not
annul the effect of lack of jurisdiction over the other ‘(n-1)’ causes of action. On a
note of caution, the effect of defective jurisdiction is quite disastrous. [Kiran Singh
and Ors. v. Chaman Paswan and Ors. [1955]1SCR117: “It is a fundamental
principle well-established that a decree passed by a court without jurisdiction is a
nullity, and that its invalidity could be set up whenever and wherever it is sought to
be enforced or relied upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter of the action, strikes at the very
authority of the court to pass any decree, and such a defect cannot be cured even by
consent of parties.”]
I am of the view that the extant appeals were unnecessary in the light of Dabur and
Dhodha. As held by the Supreme Court in Dabur, “a composite suit would not entitle
a court to entertain a suit in respect whereof it has no jurisdiction, territorial or
otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no
reason as to why the same should be ignored. A composite suit within the provisions
of the 1957 Act as considered in Dhoda House, therefore, would mean the suit which
is founded on infringement of a copy right and wherein the incidental power of the
Court is required to be invoked.” (Paragraph 29) In this context, the Appellant
hardly had any case in going for an appeal as the lack of jurisdiction under the 1958
Act was self-evident.
The position of the Defendant was also weak. The SC rightly refused to interfere
with the Order passed by the High Court permitting the Plaintiff to amend the plaint.
The High Court enjoys certain discretionary powers. Unless the exercise of
discretionary power is perverse or erroneous, the Supreme Court doesn’t normally
interfere with it. It observes a certain degree of deference in this regard. The
Defendant had virtually nothing to show that the discretion was exercised in a
perverse or erroneous manner.
Bibliography
https://www.rocketlawyer.com/gb/en/quick-guides/affidavits
https://vakilsearch.com/advice/what-is-an-affidavit/
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_ZA4QC8GF.PDF
https://www.rocketlawyer.com/gb/en/quick-guides/affidavits
https://indiankanoon.org/doc/154222/
https://definitions.uslegal.com/a/affidavits/
https://spicyip.com/2013/12/jurisdiction-in-a-composite-suit-a-case-study.html
https://lawtimesjournal.in/meaning-and-essentials-of-suits/
https://indiankanoon.org/doc/72737127/