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ACKNOWLEDGEMENT
Any attempt at any level can't be satisfactorily completed without the support and guidance
of learned people. We are overwhelmed in all humbleness and gratefulness to acknowledge
our depth to all those who have helped us to put these ideas, well above the level of
simplicity and into something concrete effectively and moreover on time.
We are very thankful to our guide Ms. Prithpal Kaur for her valuable help. She was always
there to show us the right track when we needed her help. She lent her valuable suggestions,
guidance and encouragement, in different matters regarding the topic. She had been very
kind and patient while suggesting me the outlines of this project and correcting my doubts.
We thank her for her overall supports with the help of which we were able to perform this
project work.
We would also like to thank our colleagues, who often helped and gave us support at critical
junctures during the making to this project. Last but not the least, we would like to thank our
group who worked a lot in gathering different information, collecting data and guiding each
other from time to time in making this project. We put a team effort to complete and make it
a great project.
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INDEX
I. Introduction.................................................................................3-7
i. Scope
ii. Significance
iii. Hypothesis
v. Essentials
II. Origin................................................................................................8-10
IV. Cases...............................................................................................20-24
V. Conclusion.....................................................................................25-26
VI. References......................................................................................27
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CHAPTER I
INTRODUCTION
Though the expression “affidavit” has not been defined in the Civil Procedure Code, it has
been commonly understood to mean “a sworn statement in writing made especially under
oath or on affirmation before an authorised officer or Magistrate”.1
Affidavits are provided for in the Order XIX of Civil Procedure Code.
MEANING
An affidavit is any written document in which the signer swears under oath before a Notary
Public or someone authorized to take oaths, that the statements in the document are true. It 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. An affidavit is a declaration of facts, reduced to
writing and affirmed or sworn before an officer having authority to administer oaths. 2 It is a
written statement of facts voluntarily made by an affiant under an oath or affirmation
administered by a person authorized to do so by law.
An affidavit should be drawn up in the first person and contain statements and not inferences.
An affidavit is voluntarily made without any cross-examination of the affiant and, therefore,
is not the same as a deposition, a record of an examination of a witness or a party made either
voluntarily or pursuant to a subpoena, as if the party were testifying in court under cross-
examination. A pleading—a request to a court to exercise its judicial power in favour of a
party that contains allegations or conclusions of facts that are not necessarily verified—
differs from an affidavit, which states facts under oath.
1
M. Veerabhadra Rao v. Tek Chand, 1984 Supp SCC 571
2
C. K. Takwani, Civil Procedure, Eastern Book Company, Sixth Edition, Lucknow, pg. 34
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SCOPE
1. Business
Generally affidavits are used in business whenever an official statement that others might
rely upon is needed. Statements of the financial stability of a corporation, the pedigree of
animals, and the financial conditions of a person applying for credit are examples of
affidavits used in the commercial world.
2. Judicial Proceedings
Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances.
They are considered a very weak type of evidence because they are not taken in court, and
the affiant is not subject to cross-examination. Their use is usually restricted to times when
no better evidence can be offered. If a witness who has made an affidavit is not available to
testify at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his
or her affidavit is inadmissible except when used to impeach the witness's testimony, or to
help the witness with past recollection of facts.
Affidavits are also used as evidence in ex parte proceedings such as a hearing for the
issuance of a Temporary Restraining Order or an order to show cause. The expeditious nature
of such proceedings is considered to substantially outweigh the weak Probative value of the
affidavits. In addition, there is normally a subsequent opportunity in the course of litigation
for the opposing party to refute the affidavits or cross-examine the affiants.
An affidavit based on the knowledge of the affiant is accorded more weight than one based
on information and belief. When admissible, affidavits are not conclusive evidence of the
facts stated therein.
3. Administrative Proceedings
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SIGNIFICANCE
The implications and applications of an affidavit are important to understand, both for
litigants and everyday consumers.
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 one knows the facts listed within are,
to the best of one’s knowledge, true and correct.
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.
HYPOTHESIS
An affidavit is based upon either the personal knowledge of the affiant or his or her
information and belief. Personal knowledge is the recognition of particular facts by either
direct observation or experience. Information and belief is what the affiant feels he or she can
state as true, although not based on firsthand knowledge. An affidavit should be confined to
such facts as the deponent is able to prove to his personal knowledge. Rule 3(1) of Order 19,
however, allows the deponent to state such facts in interlocutory applications which are based
on belief4.
RELATED TERMS
3
Ibid.
4
C. K. Takwani, Civil Procedure, Eastern Book Company, Sixth Edition, Lucknow, pg. 307
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Affiant/Declarant
Any person having the intellectual capacity to take an oath or make an affirmation
and who has knowledge of the facts that are in dispute may make an affidavit. There is no
age requirement for an affiant. As long as a person is old enough to understand the facts and
the significance of the oath or affirmation he or she makes, the affidavit is valid. A criminal
conviction does not make a person incapable of making an affidavit, but an adjudication of
Incompetency does.
Someone familiar with the matters in question may make an affidavit on behalf of another,
but that person's authority to do so must be clear. A guardian may make an affidavit for a
minor or insane person incapable of doing so. An attorney may make an affidavit for a client
if it is impossible for the client to do so. When necessary to the performance of duties, a
Personal Representative, agent, or corporate officer or partner may execute an affidavit that
indicates the capacity in which the affiant acts. A court cannot force a person to make an
affidavit, since, by definition, an affidavit is a voluntary statement.
Perjury
In court, when experts or witnesses provide information, they generally swear and
oath to tell the truth. To knowingly tell a lie or misrepresent a fact while sworn in is a crime
known as perjury. Lawyers and attorneys can also be liable for perjury. Some courts require
the filing of an affidavit in addition to or in lieu of swearing in. A signed affidavit states that
any information filed or expressed is truthful. Lying on a document or testimony with a
signed affidavit also constitutes perjury. You will not be liable, however, if you fail to
include information that is not within your knowledge or you are unaware of.
ESSENTIALS
There is no standard form or language to be used in an affidavit as long as the facts contained
within it are stated clearly and definitely. Unnecessary language or legal arguments should
not appear. Clerical and grammatical errors, while to be avoided, are inconsequential.
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The affidavit usually must contain the address of the affiant and the date that the statement
was made, in addition to the affiant's signature or mark. Where the affidavit has been made is
also noted. When an affidavit is based on the affiant's information and belief, it must state the
source of the affiant's information and the grounds for the affiant's belief in the accuracy of
such information. This permits the court to draw its own conclusions about the information in
the affidavit.5
An affiant is strictly responsible for the truth and accuracy of the contents of the affidavit. If
false statements are made, the affiant can be prosecuted for perjury.
Any public officer authorized by law to administer oaths and affirmations may take
affidavits. Justices of the peace and magistrates are sometimes authorized to take affidavits.
Unless restricted by state law, judges may take affidavits involving controversies before
them.
An officer cannot take affidavits outside of the particular jurisdiction in which he or she
exercises authority. The source of this authority must appear at the bottom of the affidavit.
An official seal is not essential to the validity of the affidavit but may be placed on it by the
proper official.
5
Ibid. Pg 307
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CHAPTER II
ORIGIN
Around the year 1300 some unidentified scribe sat down and either wrote out or copied from
another document a long romantic poem about King Alfred the Great. This document did not
contain the word affidavit. But it did contain a related word and it is also an example of a
Middle English document with a tale to or two to tell.
Affidavit is such a formal legal term that it feels right that it comes directly from Latin. It
shows up in English in the century after Shakespeare’s death, so almost 400 years ago.
As it has been said it came from Latin and the lawyers of the time were using it because the
literal English translation of the Latin affidavit was “has stated on oath.” It’s the fid in the
middle of affidavit that gives us the oath, or at least a pledge of faith. It’s the
same fid from fidelity.6
Just like English words morph and mutate over time Latin words did too and the
Latin affidavit was really only a late Latin word used in the middle ages after the Romans
had long finished their campaign of world domination. It had grown out of two earlier Latin
words fidum dare.
The related English word that showed up those 700 years ago in the King Alfred poem
was affy—not a word we use any more—and it meant “to trust.”
That Middle English poem was unlike some other Middle English documents.
When Geoffrey Chaucer wrote his Canterbury Tales he was laying out a story intended to be
read from the get-go. It was aimed at educated readers.
6
Viewed at podictionary.com/?p=756
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The poem was called Kyng Alisaunder and it instead was aimed at people who couldn’t read.
You see Kyng Alisaunder was invented in some age before it was ever written down so that it
could be recited aloud.7
The people couldn’t read or write and their oral tradition was helped along because it’s easier
to remember a poem than all the facts of a prose story. In trying to remember it to tell the
next person not only is your memory stimulated by the string of events, but since there is a
certain rhythm and rhyme to a poem, one line more securely connects to the next in your
memory. The story changes less from telling to telling.
So in 1300 or so it was written down. There are only four copies of it left in existence and
these tell us something too.
These were the days before printing presses so each copy was written by hand. If oral poetry
was more faithful than oral prose you’d think that a written reproduction would be even more
faithful. But human failings being what they are we see that in copying out a manuscript the
old scribes sometimes made mistakes, or maybe even added in their own versions of how
they’d heard the poem in their youth.
Then there’s the question of dust to dust ashes to ashes. Four copies exist but we don’t know
if there were more earlier on that just got destroyed or lost. Even the copies that remain are
actually not immune from the dust to dust thing and three of the four are what are
called fragments.
The last little story this old poem has to tell us is the value of paper. Actually these old
documents weren’t written on paper. They were written on specially prepared sheep skins
called vellum or parchment.
Since these materials didn’t grow on trees they were kind of expensive and since they were
expensive they got reused.
7
Ibid.
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One of the fragments of Kyng Alisaunder wasn’t kept safe in a musty library or museum. In
1949 it was found inside another book at the University of St. Andrews; it had been used for
the new book’s binding.
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CHAPTER III
The Indian Oaths Act, 1873 governs the law relating to affidavits in India. Two or more
persons join in an affidavit subject to the conditions that each should dispose separately to
those facts which are within his own knowledge, and such facts should be stated in separate
paragraphs.
Affidavit is a solemn declaration on oath all the relevant material facts must be included in it.
But no fact which is unverifiable by the deponent should be included in it.8
a) Introductory Para:-
In the opening para, name, age, parentage and full address of the deponent
must be given. Besides it must disclose that deponent is making a solemn declaration.
For example, "I Mr/Mrs. XYZ, aged about --- years, son/daughter of..... resident
at......, do hereby solemnly affirm and state that as under:"
b) Declaration of Facts:-
The main body of affidavit is the declaration and narration of facts which the
deponent wishes to swear on oath. Each facts must, clearly yet briefly, be set forth in
separate paras. The parts must be numbered for the sake of convenience and clarity of
expression.
c) Closing Para:-
The closing para of affidavit contains verification. The deponent has to verify
an affidavit.
8
P.M.Bakshi, Law of Affidavits, Butterworths India, New Delhi, 2nd Edition, 2000, Pg 5
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4) The subject matter of swearing each point must be clearly brought out in
separate para.
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 reasonable9:
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 affidavit10.
STATE AMENDMENTS
9
P.M.Bakshi, Law of Affidavits, Butterworths India, New Delhi, 2nd Edition, 2000, Pg 37
10
S. Parmeshwaran , Law Of Affidavits, Universal Law Publishing Co., New Delhi, 2nd
Edition, pg 25
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"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 re-
examined.". [U.P. Act (57 of 1976)].
Notwithstanding anything contrary to rule 1, the Court shall, in a suit or proceeding referred
to in sub-rule 3-B of Order 1 and whether or not any proceeding under the Madhya Pradesh
Ceiling on Agricultural Holdings Act, 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.".
Allahabad.-
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"1A. Power to permit ex parts evidence on affidavit.-Where the case precedes ex parte the
Court may permit the evidence of the plaintiff to be given an affidavit."
(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.
(1) Affidavits shall be confined to such facts as the deponent is able of 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 hear say or
argumentative matter, or copies of or extracts from document, shall (unless the Court
otherwise directs) be paid by the party filing the same.
Allahabad in Order XIX, after rule 3, insert the following rules, namely:-
4. Affidavits shall be entitled in the Co11urt of........ or ........(naming such Court). If the
affidavit be in support of, or in opposition to, an application respecting any case in the Court,
it shall also 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 distinct portion of the subject.12
[Vide Notification No. 1953/35 (a), dated 22nd May, 1915; Notification No. 572/35 ia)-(2),
dated 18th February, 1928.]
6. Every person making any affidavit shall be described therein in such manner as shall serve
to identify him 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.
11
Nand lal, Code Of Civil Procedure, Law Publisher’s India Pvt Ltd, Allahabad, 4th Edition,
pg 283
12
Ibid, pg. 284
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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 be confined 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 purposes 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.
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, be identified to that person by some one
known to him, and 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.
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(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
I................ (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.13
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
13
Ibid.
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the contents thereof, and if the person proposing to make such affidavit states that he has not
read the affidavit or appears not to understand the contents thereof, or appears to be 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 before him and the time and place when and where it was
made, and shall for the purpose of identification mark and initial and exhibits referred to in
the affidavit.
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.14 Every correction so made shall be initialled by
the person before whom 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."
2. Affidavit to be submitted with the application for change of name in the certificate.
3. Affidavit to be submitted with the application to the regional transport authority for
issuance of duplicate driving licence.
14
Viewed at www.vakilno1.com/bareacts/civilprocedure/sORDERXIX.htm
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5. Affidavit to be furnished to the income tax authorities for obtaining income tax
clearance certificate.
7. Affidavit for condonation of delay in filing appeal before the income tax appellate
tribunal.
9. Affidavit with the application for amending the wealth tax return under wealth tax
act, 1957.
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CHAPTER IV
CASES
An Advocate committed forgery by attesting a false affidavit prepared in the name of his
client to facilitate commission of a fraud to the detriment of his client by another person.16
He also made false statement before the Disciplinary Committee of State Bar Council. He
was awarded a reprimand by the Bar Council. The Supreme Court on facts held that the
advocate had committed a serious act of professional misconduct.
The complainant filed in this Court a petition for contempt against the accused for their
failure to comply with the orders of this Court. In paragraph 2 of the affidavit in support of
the petition, the complainant stated that the statements contained in the petition were true
to the best of her knowledge, belief and information. In paragraph 3 she further stated that
the affidavit had been read over, translated and explained to her and she understood the
contents thereof; and that the same were true to her knowledge and belief.
Similarly, in the affidavit on behalf of the accused, which had been filed by a clerk of the
Advocate, the deponent verified the affidavit by stating that the statements of the accused
were true and correct which were based on the records maintained in the Advocate's office
and on instructions received from the clients.
Rejecting the affidavits as not being in accordance with the Supreme Court Rules or Order
19 of Rule of the Code of Civil Procedure, this Court held the following
15
AIR 1985 SC 28
16
Viewed at www.scribd.com/doc/37167495/Lecture-31-34-Revised
17
AIR 1988 SC 1987
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1.1 Affidavit is a mode of placing evidence before the Court. A party may prove a fact or
facts by means of affidavit before this Court but such affidavit should be in accordance
with Order XI Rules 5 and 13 of the Supreme Court Rules.18
1.2 The party stating facts must disclose as to what facts are true to his personal
knowledge, information or belief. If the statement of fact is based on information the
source of information must be disclosed in the affidavit. An affidavit which does not
comply with the provisions of Order.
XI of the Supreme Court Rules has no probative value and it is liable to be rejected.
1.3 In a matter where allegations of mala fides or disobedience of the Court's order are
made against a person or party, it is an the more necessary that the person Filing affidavit
in this regard must take care to verify the facts stated in the affidavit strictly in accordance
with the Rules 5 and 13.
1.4 Of late affidavits are being Filed in this Court in a slipshod manner without having
any regard to the Rules. Affidavits are being filed by persons who could have no personal
knowledge about the facts stated in the affidavit. Deponents of Affidavits pay no attention
to verification.
1.5 The practice of clerks of advocates filing affidavits without a proper verification is
deprecated. As matters before the apex court are determined on the basis of the statements
contained in affidavits it is the duty of the litigants and the lawyers to file affidavits in
accordance with the rules to assist the Court in administering justice.
In the instant case, the affidavit filed by the complainant was clearly vague, general and
defective, and did not indicate as to what facts were true to her knowledge, information
and belief. It did not comply with the requirement of a valid affidavit as laid down in the
Rules 5 and 13 of the Supreme Court Rules.19 Similarly, the affidavit in reply filed on
behalf of the accused by office clerk of the Advocate was wholly improper and
18
Viewed at www.rishabhdara.com/sc/view.php?case=9227
19
Ibid.
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inadmissible in evidence and liable to be rejected. Since both the affidavits did not comply
with the Rules, no reliance could be placed on them. They were accordingly rejected.
Section 1 of the Evidence Act, 1872 states that the Act does not apply to affidavits, but
under Order 19 Rule 1, affidavits can be used as evidence if for sufficient reason, the
Court passes an order under the said Rules. Order 19 Rule 1 permits a ‘Court’ for
sufficient reason to direct, proof of a fact or facts by affidavit at any time except in cases
where the opposite party bona fide requires the witness to be made available for cross-
examination. Order 19 Rule 2(1) permits a party to apply to the Court to produce
evidence by affidavit with permission of Court but the Court may order presence of the
deponent for cross-examination.21 Under Order 19 Rule 1(2), such attendance shall be in
open Court, unless the deponent is exempted from personal appearance in Court or the
Court otherwise directs. Under Order 19, Rule 3, it is stated that affidavits shall be
confined to such facts as the deponent is able to state from his own knowledge (except in
interlocutory applications) or which statements are based on his belief, provided the
grounds thereof are stated.
The SC disallowed cross-examination in this case on the ground that the evidence of
witness was in the form of affidavits and the copies had been made available to the party.
The contention was that the powers of the Commission to order a fact to be proved by
affidavit are subject to the proviso that power cannot be exercised when a party desires the
production of the persons swearing the affidavits for cross-examining them.
20
AIR 1988 SC 1381
21
Nand lal, Code Of Civil Procedure, Law Publisher’s India Pvt Ltd, Allahabad, 4th Edition,
pg 285
22
AIR 1967 SC 122
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The Calcutta High Court considered the scope of application elaborately under Order XIX
of the Code, while considering the application for temporary injunction, and held that
there is a discretion left with the Court and no party can claim an absolute right to call the
declarants of the affidavits for cross-examination, but it has to be determined on the facts
of each case.24
It was held that if contents of affidavits are contradicted, the Court may summon the
deponents of the affidavits for cross-examination.25
"The Court may also treat any affidavit filed in support of the pleadings itself as one
under the said provisions and call upon the opposite side to traverse it. The Court, if it
finds that having regard to the nature of the allegations, it is necessary to record oral
evidence tested by oral cross-examination, may have recourse to that procedure."
Needle I.I. Ltd. & ors. Vs. N.I.N.I.H. Ltd. & ors.27
The Hon'ble Apex Court considered the case under the Indian Companies Act and
observed that " it is generally dissatisfactory to record a finding involving grave
23
AIR 1984 Cal 184
24
A.K.Banerjee, Code of Civil Procedure 1908 Volume II, Dwivedi and Co., Allahbad, 2009,
pg 988
25
AIR 1975 All. 398
26
AIR 1992 SC 700
27
AIR 1981 SC 1298
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consequences to a person on the basis of affidavits and documents without asking that
person to submit to cross-examination." unless the parties have agreed to proceed
with the matter on the basis of affidavits only.
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CHAPTER V
CONCLUSION
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.
Although affidavits may be filed in court proceedings, a deposition should not be mistaken
for an affidavit. A deposition occurs when a person is placed under oath and then cross-
examined to test their recall, bias and veracity. Because of this, depositions are considered
more credible testimony than affidavits.
From the provisions of the Code, it is clear that the purpose of existing provisions as to
verification is to fix responsibility on the party. The affidavit now required to be filed along
with plaint under sec. 26(2) and Order 6 Rule 15(4) has the effect of a solemn statement of
the plaintiff affirming the facts stated in the plaint. The affidavit fixes additional
responsibility on the deponent as to the truth of the facts stated in the plaint.
However, such affidavit now required to be filed along with plaint under sec. 26(2) and
Order 6 Rule 15(4) is not evidence for purposes of trial. The stage of adducing evidence
arises after issues are framed and the plaintiff produces documentary and oral evidence, if
any. Further, section 1 of the Evidence Act, 1872 says that the Act does not apply to
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affidavits. But the Court can make an exception under Order 19 of the Code permitting
affidavit to be treated as evidence.
Nor can the affidavit required to be filed under sec. 26(2) and Order 6 Rule 15(4) along with
the plaint be treated as evidence if the defendant remains ex parte.28 Plaintiff will be required
to produce oral and documentary evidence after the issues are framed. It is pointed out that
chief-examination of a witness cannot be by affidavit as authorized now by Order 18 Rule
4(1). Affidavit cannot be evidence. As stated above, the Court has power under Order 19
Rules 1, 2 to permit affidavits to be filed as evidence.
28
S. N. Singh, Code of Civil Procedure, Central Law Agency, Allahbad, 19th Edition, pg.
212
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AFFIDAVIT Group
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REFERENCES
BIBLIOGRAPHY:
1. Takwani C. K., Civil Procedure, Eastern Book Company, Sixth Edition, Lucknow.
2. P.M.Bakshi, Law of Affidavits, Butterworths India, New Delhi, 2nd Edition, 2000.
3. Parmeshwaran S. , Law Of Affidavits, Universal Law Publishing Co., New Delhi, 2nd
Edition.
4. Nand lal, Code Of Civil Procedure, Law Publisher’s India Pvt Ltd, Allahabad, 4th
Edition.
5. Banerjee A.K., Code of Civil Procedure 1908 Volume II, Dwivedi and Co., Allahbad,
2009.
6. Singh S. N., Code of Civil Procedure, Central Law Agency, Allahbad, 19th Edition
WEBLIOGRAPHY:
1. http://www.rishabhdara.com/sc/view.php?case=9227
2. http://www.scribd.com/doc/37167495/Lecture-31-34-Revised
3. http://www.vakilno1.com/bareacts/civilprocedure/sORDERXIX.htm
4. http://podictionary.com/?p=756
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