It is always stated that the procedure is a handmaid of justice. In the present case, the witness concerned stepped into witness box and on oath he stated that the contents of the affidavit in lieu of examination in chief were true and correct. The learned trial Judge as well as the parties proceeded on the footing that the affidavit tendered by the witness was duly affirmed before the concerned officer. As held by this court in the case of FDC, such affidavit can be treated as an evidence only after the examination of the witness is made on oath and the witness deposes that the contents of the affidavit are true and correct. In the examination on oath of the said witness recorded before the court, he was shown the said affidavit and he stated that the contents thereof were true and correct. In view of the recording of the examination-in-chief of the witness, th
what is stated in the affidavit tendered on 11 April 2009 becomes the examination-in-chief and forms part of the evidence of the said witness. The defects of non signing and not getting the said affidavit affirmed before the learned trial Judge or before any other
officer empowered to administer oath stand cured by the
examination on oath of the said witness on 11 April 2008. In this connection, it will be necessary to refer section 7 of Oath Act which reads thus :
7 Proceedings and evidence not invalidated by omission of oath or irregularity No omission to take any oath or make any
affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. In a case where an affidavit in lieu of examination-in-chief of a witness taken on record by the court is found to be defective on account of failure to affirm it before the concerned officer, by exercising inherent power under section 151 of the said Code, the trial court can always allow the defect to be cured by permitting the affirmation to be made subsequently.
Citation;2010(1) MH L J 396
Bombay High Court
M/S.Miscellany Marketiers ... vs M/S.Sun-N-Sand Hotel Pvt.Ltd on 20 August, 2009
counsel for the parties. The petitioners are the original plaintiffs and the respondents are the original defendants. The petitioners have filed a suit for declaration of tenancy in respect of the suit premises. Recording of evidence commenced in the suit. The petitioners examined their witnesses who were cross examined by the respondents. The respondents filed an affidavit in lieu of evidence of one Gul. R. Advani. The th
said affidavit is dated 11 April 2008. According to the petitioner, it was noticed that the said affidavit was not signed by the said witness and it was not affirmed by him before any officer. It was found that the witness had put his signature below verification clause. After noticing this, the petitioners made an th
application on 18 July 2008 before the trial court by 2
pointing out the aforesaid infirmities in the affidavit. It was contended that the purported affidavit cannot be treated as an affidavit in lieu of examination in chief. The prayer in the said application was that the said affidavit be rejected.
2 The said application was contested by the respondent th
by filing a reply. By Judgment and Order dated 17 November 2008, the learned Trial Judge rejected the application made by the petitioners. The learned Judge observed that the affidavit was not affirmed by the witness but thereafter witness entered the witness box and on oath he stated before the court that the contents of the affidavit were true and correct. The learned Judge observed that the fact that the oral evidence of the witness was recorded was more than sufficient. The learned Judge also observed that an application made for permission to affirm the affidavit was being heard separately. A revision application was preferred by the petitioners for challenging the said order. The revision application was not admitted and was summarily rejected. The Appellate Bench of Small Causes Court held that the impugned order does not affect any substantive rights of the petitioners and therefore, the revision application against a purely procedural order was not maintainable. 3 The learned counsel for the petitioners apart from 3
submitting that the revision application was maintainable has made detailed submissions on merits. She relied upon the decision of this court in the case of F.D.C. Ltd. Vs. Federation of Medical Representatives Association India (FMRAI) and others (AIR 2003 Bombay 371). She submitted that the affidavit under Rule 4 of Order XVIII of the Code of Civil Procedure,1908 (Hereinafter referred to as the said Code) has to be in conformity with the requirements of Rule 3 of Order XIX of the said Code. She placed reliance on the definition of the affidavit under the General Clauses Act. She submitted that the document tendered by the respondents cannot be an affidavit as admittedly it was not affirmed before any competent officer by administering the oath to the witness. She submitted that by no stretch of imagination such document can be termed as an affidavit the same has not been affirmed on oath. Her submission is that unless the affidavit was affirmed before an officer who was authorised to administer oath, the same cannot be treated as an affidavit. She submitted that the affirmation of an affidavit is not an empty formality in as much as in the event a false statement is made by a witness on oath, he can be prosecuted. Her submission is that in absence of affirmation, the document cannot be treated as an affidavit. She also invited my attention to what is held by this court in paragraph 20 and 21 of the decision of 4
this court in case of FDC Ltd. (supra). She submitted that there is no proper verification below the affidavit. The witness ought to have stated as to which facts are true and correct as per his knowledge and which facts are based on information which he has reason to believe. She, therefore, submitted that even on the said count, the alleged affidavit could not have been treated as an affidavit in lieu of examination-in-chief. 4 The learned counsel for the respondents supported the impugned Judgments and submitted that no interference is called for in this writ petition under Article 227 of the Constitution of Indian.
5 I have carefully considered the submissions. It is an accepted fact that the affidavit of the said witness Mr. Advani has not been affirmed either before the learned trial Judge or before a Notary Public or before any other officer who is empowered to administer oath in accordance with section 139 of the said Code. There is a verification clause below the affidavit which is signed by the witness. One more factual aspect which will have th
to be noted is that on 11 April 2009, the said witness stepped into the witness box and his examination-in- chief has been recorded. In his examination-in-chief the witness stated that the contents of the affidavit are true and correct as per his personal information, 5
knowledge and belief. Thus, on oath, the witness has confirmed the correctness of what is stated in the said affidavit in lieu of evidence.
6 It will be necessary to advert to the what is held by this court in the case of FDC Ltd. (supra). The first aspect dealt with by this court is as regards the procedure to be followed after affidavit in lieu of examination-in-chief of a witness is filed. This court also considered Rule 5 of Order XVIII of the said Code. This court observed that a suit where the decree passed will be appealable, mere production of the affidavit of the witness will not sufficient. Such affidavit cannot be treated to be forming a part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature. This court held that the said statement on oath of the deponent has to be recorded by following the procedure laid down by Rule 5 of Order XVIII. As far as the nature of the affidavit is concerned, What is observed in paragraph 20 and 21 of the said decision reads thus :
20 As regards the evidence in the form
of affidavit it is also to be borne in mind that such evidence can only be in relation to the fact or the facts required to be proved by the parties in a suit. Affidavits by very
nature are the statement of facts known to the deponent either on the basis of his personal 6
knowledge or on account of information derived by him from certain records or received from other source and it is necessary for the
deponent in case of statement of facts made on the basis of such information to disclose the source of information otherwise the statement based on information can have no evidentiary value. In fact, the law on the point of the contents of the affidavit is very clear from Rules 1 and 3 of Order XIX of CPC. The Rule 1 read that 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. The Rule 3 (1) thereof provides that affidavit shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statement of his belief may be admitted; provided that the g rounds thereof are stated.
21 In case of evidence in the form of
affidavit in a suit to be considered for the decision on merits, it should confine to the facts known to the deponent either of his
personal knowledge or based on information which the deponent has reason to believe.
Albeit, in later case the source of information as well as the reason to believe has to be disclosed in the affidavit, otherwise, the statement based on information without disclosure of the source and the reason to believe cannot have any evidentiary value. There can also be facts based on belief.
However, grounds of belief are necessarily to be stated with sufficient particulars to enable the Court to Judge whether it would be safe to rely upon the deponent s belief. (Vide bariumChemicals V. Company Law Board, reported in AIR 1967 SC 295 and in M/s.Sukhwinder Pal Bipan Kumar V. State of Punjab reported in AIR 1982 SC 65).
7 Coming back to the facts of the case, as stated th
earlier, the affidavit was tendered on 11 April 2008 and on the very day the deposition of the witness was recorded which is already referred to above. An 7
application raising objection was filed by the th
petitioners on 18 July 2008.
. At this stage, it will be necessary to refer to the decision in case of Dilip S/O Madanlal Jain vs. Smt.Pritam Kaur wd/o Late Dr.M.S.Madan [2008 (5) Mh.L.J. 48]. This was a case where the affidavit in lieu of evidence was filed by the landlady. An objection was raised by the tenants contending that as the landlady did not prove the said affidavit in her evidence, compliance was not made with the decision of this court in the case of FDC Ltd. (supra), and therefore, the affidavit will have to be ignored. After dealing with the decision of this court in case of FDC, in paragraphs 24 to 26, this court held thus :
24. As the affidavit has gone on record
un-objected, it now becomes an objection as to the deficiency in complying with the need of showing to the witness the signature on the affidavit, and have it confirmed from him. 25 The need of reiteration in terms of
the observation contained in the FDC Ltd., case cannot be applied with the same rigour and in retrospective operation as its substantial compliance will be deemed to have been done once the witness is before Court, is administered oath and is cross examined on a foundation that the affidavit in Examination- in-chief is filed furtherance to Rule 4 of Order 18 of Civil Procedure Code without
raising any objection. The failure to elicit from him that it is his affidavit by way of further examination in chief does not vitiate, destroy or nullify his testimony contained in said affidavit.
8
26 In the present case, the fact of
existence of oath on record on the affidavit relied upon for the purpose of evidence by the plaintiff answers and satisfies the requisite compliance of the said affidavit being considered as affidavit of examination-in- chief within the connotation of the term as contemplated by Rule 4 of Order 18 of the Civil Procedure Code.
8 It is always stated that the procedure is a handmaid of justice. In the present case, the witness concerned stepped into witness box and on oath he stated that the contents of the affidavit in lieu of examination in chief were true and correct. The learned trial Judge as well as the parties proceeded on the footing that the affidavit tendered by the witness was duly affirmed before the concerned officer. As held by this court in the case of FDC, such affidavit can be treated as an evidence only after the examination of the witness is made on oath and the witness deposes that the contents of the affidavit are true and correct. In the examination on oath of the said witness recorded before the court, he was shown the said affidavit and he stated that the contents thereof were true and correct. In view of the recording of the examination-in-chief of the witness, th
what is stated in the affidavit tendered on 11 April 2009 becomes the examination-in-chief and forms part of the evidence of the said witness. The defects of non signing and not getting the said affidavit affirmed before the learned trial Judge or before any other 9
officer empowered to administer oath stand cured by the th
examination on oath of the said witness on 11 April 2008. In this connection, it will be necessary to refer section 7 of Oath Act which reads thus :
7 Proceedings and evidence not invalidated by omission of oath or irregularity No omission to take any oath or make any
affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. 9 In a case where an affidavit in lieu of examination-in-chief of a witness taken on record by the court is found to be defective on account of failure to affirm it before the concerned officer, by exercising inherent power under section 151 of the said Code, the trial court can always allow the defect to be cured by permitting the affirmation to be made subsequently. In the present case, by virtue of examination-in-chief of the said witness on oath before the court and by virtue of the statement on oath that what was stated in the 10
affidavit is true and correct, it cannot be said that the said affidavit continues to be defective by virtue of failure of the witness to affirm the same before an officer who is empowered to administer the oath. 10 Now turning to the other defect in the verification, this court in case of FDC has held that the affidavit in lieu of examination in chief in terms of Rule 4 of order XVIII of the said Code has to be in conformity with Rule 3 of Order XIX of the said Code. In paragraph 21 of the said decision, this court has held that if affidavit is to be considered it should confine to the facts of the case of the deponent either of his personal knowledge or based on information which the deponent has reason to believe. In later case, the source of information and the reasons for belief have to be disclosed in the affidavit. The aforesaid aspects can be set out in the body of the affidavit itself. The said decision does not go further and state that the affidavit in lieu of examination-in-chief has to be verified in the manner required by Rule 15 of the Order VI of the said Code. In any event if there is any defect in the verification below the affidavit in lieu of examination-in-chief, the court can always exercise its general power to amend under section 153 of the said Code and permit the correction to be carried out to the verification clause of the affidavit. The defect, if any, in the verification 11
clause of the affidavit will not be fatal and it can always be permitted to be cured. The Civil Court is vested with sufficient power under section 153 of the said Code to allow such inadvertent or accidental defects in the verification clause in the affidavit to be corrected. As far as the failure to affirm the affidavit in lieu of examination-in-chief is concerned, if such affidavit is taken on record, the court has abundant power to permit the witness to get it affirmed at a subsequent stage. The said defect stands cured by recording of examination in chief before the court affirming therein the correctness of the contents of the affidavit.
12 In the circumstances, it is difficult to find fault with the impunged order passed by the trial court. As this court has dealt with the merits of the case, it is not necessary to deal with the issue of maintainability the revision application. There is no merit in the petition and the same is accordingly rejected. 13 The learned counsel for the petitioner prays for continuation of the ad-interim relief. The said prayer is opposed by the learned counsel for the respondent. The trial court will not proceed further for a period of eight weeks from today.
JUDGE
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