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TMI Blog2017 (2) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... erein have been conferred with notarial power as also the power to administer oath. This matter was mentioned before us by Ms. Saha, learned counsel for the appellant bringing to our notice the fact that the department was not registering the stay petition and we sought a report from the department in that regard. In the report furnished before us, the Stamp Reporter, referring to a decision of an Hon'ble Single Judge of this Court in the case of Sudebi Sundari Mondal v. State of West Bengal & Ors. (AIR 1983 Cal. 1), has recorded :- "On this point the undersigned has a doubt, with utmost respect to the amendment taken place, as to whether by an administrative order of amendment of rule, a judicial order passed by an Hon'ble Court can be overrode or not. Be that as it may, again on 7th December, 1999 in G.A. No. 41 of 1999 (Award Case No. 57 of 1994) The Great Eastern Shipping Co. Ltd. v. The Union of India represented by the Food Corporation of India, This Hon'ble Court by its order also excluded the writ jurisdiction of This Hon'ble Court while deciding the applicability of Notarial affidavits in the proceedings of Civil nature." 2. In the judgment of Sudebi Sundari (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time the said judgment was delivered, applications under Article 226 of the Constitution of India were guided by the Rules framed under Article 225 of the Constitution of India, which was notified on 1st November, 1960 under No. 7586G. These Rules did not specifically provide for applicability of the provisions of Civil Procedure Code in relation to proceedings under Article 226 of the Constitution of India even in areas uncovered by the Writ Rules. This fact emerges from the passage of Sudebi Sundari (supra), which we have reproduced earlier in this judgment. 5. In the Full Bench decision of Punjab and Haryana High Court in Teja Singh v. Union Territory of Chandigarh and Others (AIR 1982 Punjab and Haryana 169), the course on which doubt has been expressed by the department on the basis of the ratio in the case of Sudebi Sundari (supra), was held to be permissible. Civil Procedure Code was made applicable to a writ proceeding in that Court in terms of Rules framed under Article 225 of the Constitution of India. This would be apparent from Paragraph 18 of the report of the case of Teja Singh (supra) :- "18. Coming to the point in issue, I find that R. 32, which has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its shall be followed, as far as it can be made applicable, in all proceedings under Article 226 and nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Courts." 7. Clause 36 of the prevailing Writ Rules, inter alia, provides - "36(1). Except as otherwise specified in these Rules :- In respect of "Original Side" applications, the Rules of the Original Side relating to Interlocutory applications, and in respect of "Appellate Side" applications, the Rules of the Appellate Side relating to Civil Revision Cases shall apply mutatis mutandis, in respect of the following matters :- (a) ... (b) ... (c) ... (d) ... (e) ... (f) Affirmation of affidavits. (g) ... (h) ... (i) ... (j) ... (k) ... (l) ..." 8.&em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent." 11. The enactment on which the appellant has placed reliance to sustain his stand that the affirmation of the affidavit in support of the petition is in order for being registered is the Diplomatic and Consular Officer (Oath and Fees) Act, 1948. Specifically, Ms. Saha, has referred to Section 3 of the said Act, which stipulates - "3. Powers as to oaths and notarial acts abroad. - (1) Every diplomatic or consular officer may, in any foreign country or place where he is exercising his functions, administer any oath and take any affidavit and also do any notarial act which any notary public may do within [a State]; and every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in [a State]. (2) Any document purporting to have affixed, impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate of the Consulate General of India in New York for legalisation of the seal of the Clerk of the Country of New York. In that context of law and facts I see no difficulty whatever, legal or otherwise, in admitting this affidavit on the records of this Court." 13. This authority has been later followed by another learned Single Judge of this Court in the case of Alan Kaye v. Recovery Officer, Employees' Provident Fund Organization, W.B.& Ors. reported in AIR 2006 Cal. 158. In the case of Ajit Sanyal v. Basiruddin Mondal [1982(1) CLJ 483], it has been, inter alia, observed and held by a Division Bench of this Court : "It is, however, contended on behalf of the appellants that in view of the amendment of section 141 of the Code of Civil Procedure, the procedure provided in the Code for suits is no longer applicable to the writ proceedings. This contention is without any substance. Even though the procedure regarding suits is not applicable to writ proceedings, there is no bar to the Court adopting such procedure, if thought necessary in the discretion of the Court. The grant of relief under Article 226 of the Constitution is discretionary and in exercise of such discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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