TMI Blog2021 (6) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... its own requirements from an affidavit, has framed its own Rules. The very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge - Noting the importance of an Affidavit, courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge. It is trite law that an affidavit shall always be confined to such facts as the deponent has his own knowledge to prove, except on interlocutory applications, on whose statements of his belief may be admitted, provided that the grounds thereof are stated. It is clear that Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate's clerk. This specific exception was made, perhaps, keepin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the above order, the petitioner has approached this Court. 4. Strangely, we find that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate's clerk-in-charge. Curiously enough, the advocate's clerk has sworn that he is looking after the case on behalf of the petitioner. This Court fails to understand as to how an advocate's clerk can swear an affidavit claiming to be looking after a case before this Court in gross violation of the Orissa High Court Rules. 5. An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908. Further, every High Court, in furtherance of its own requirements from an affidavit, has framed its own Rules. The very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge. While it is permissible that if the knowledge is not personal, it can be gathered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n advocate's clerk has falsely signed an affidavit. The most recent instance of the same being the order passed by a coordinate bench of this Court, wherein a show cause contempt notice was served on an advocate's clerk who had sworn an affidavit in a bail application of an accused on the basis of forged medical certificates. 7. The relevance of Affidavit is ingrained in both the procedural codes in India. The word Affidavit has its roots from a Latin word which literally means to pledge one's faith. It is a written statement from an individual which is sworn to be true and the contents of an affidavit reflect the personal knowledge of the individual making the statement. The Civil Procedure Code deals with the issue in the following terms: Civil Procedure Code, 1908-Order XIX-Affidavits: 3. Matters to which affidavits shall be confined. - (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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent's belief.... The Hon'ble Supreme Court of India confirmed the aforesaid position in State of Bombay v. Purushottam Jog Naik AIR 1952 SC 317, wherein a Constitution Bench, while considering the importance of verification of an affidavit, among others, held as under: .We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order 19 Rule 3 of the Civil Procedure Code, whether the Code applies in terms or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit...If the statement of facts is based on information the source of information must be disclosed in the affidavit. 5. The matter does not rest here. The affidavit filed on behalf of the accused in reply to the contempt petition is shocking. The office clerk of the advocate for the accused has filed affidavit on behalf of the accused in reply to the contempt petition. The deponent of the counter-affidavit has verified the affidavit saying that the statements of the case of the accused are true and correct which are based on the records maintained in the office of the advocate and based on the instructions received from the clients. Such an affidavit is wholly improper and inadmissible in evidence and liable to be rejected. What reliance can be placed on an affidavit filed by a person sitting at Delhi and that too a clerk of an advocate practising at Delhi giving reply to the allegations and facts and circumstances existing at Karnataka on the basis of records maintained in advocate's office at Delhi. The practice of clerks of advocates fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Vakalat, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate's clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader's clerk to file an affidavit on behalf of the litigant. Where the Advocate's clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader's office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit. 10. An affidavit is an accepted mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Rules is restricted in its use. In all cases arising out of the original jurisdiction of the Court, including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii), the question of an affidavit being filed by an advocate's clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted. 12. Furthermore, a perusal of Rule 14 and Rule 15 of the Orissa High Court Rules which lays down how an affidavit is to be framed by the declarant, the Court while accepting the affidavit of a declarant casts a strict responsibility on them to make certain disclosures to ensure that the facts, statements, etc. contained in the affidavit are based on personal knowledge or on belief which can be traced back to its sources. Even then, the affidavit will be subject to Rule 26. Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise. It has rightly been left out in the Rules which specify that only the petitioner/declarant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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