NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
In the partial fulfilment for the requirement of the project on the subject of
Civil Procedure Code, 1908 of B.A.L.L.B (Hons.), fifth semester.
SUBJECT: CIVIL PROCEDURE CODE
FIFTH SEMESTER PROJECT on the TOPIC-:
PRINCIPLE, PRACTICE AND PROCEDURE OF
AFFIDAVITS UNDER ORDER XIX OF THE
CODE OF CIVIL PROCEDURE, 1908
SUBMITTED BY: SUBMITTED TO:
SHUBHAM KAMAL Mr. AMIT PRATAP
SINGH
2019 BA LLB (HONS) 36 Assistant Professor in Business Law
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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
ACKNOWLEDGEMENT
This project has been made possible by the support of various people, my friends, family and
most importantly my respected teachers. I would like to extend a very sincere gesture of
gratitude towards our CPC teacher Amit Pratap singh sir for guiding me throughout the
development of this project and providing me with everything that was needed. I’m very
grateful to the library staff, my parents, my teachers, my seniors and my friend’s for helping
me throughout this time.
SHUBHAM KAMAL
2019 [Link](HONS) 36
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The Civil Procedure Code, 1908 mainly lays down the procedure to be adopted in civil
courts, and its principles may be applicable in other courts, like writ courts, and Tribunals to
the extent the enactments establishing the Tribunals provide for it. It provides for a fair
procedure for redressal of disputes. The other party may know what is the dispute about, what
defence it can take, and how both the parties may proceed to prove their respective cases.
Some of its provisions are substantive in nature and not procedural at all, like Sections 96,
100, 114 and 115 providing for a right of appeal, review and revision. The other provisions
are generally procedural in nature. The purpose of the Civil Procedure Code, 1908 is to
provide a litigant a fair trial in accordance with the accepted principles of natural justice. The
Code is mainly divided into two parts, namely, Sections and Orders. While the main
principles are contained in the Sections, the detailed procedures with regard to the matters
dealt with by the Sections have been specified in the Orders. Section 122 of the Code
empowers the High Court to amend the Rules, i.e., the procedure laid down in the Orders and
every High Court had amended the procedure from time to time making the amendments in
the said Orders. The Code is a codification of the principles of natural justice. Natural justice
means ‘justice to be done naturally’ which is adopted naturally by the habits of every
individual. It does not mean godly-justice or justice of nature. It simply means an inbuilt
habit of a person to do justice. For example, if a child of 1,1/2 years breaks the saucer, the
mother of the child may slap him being furious, but at the time of slapping, she would
repeatedly ask him why he has broken the saucer, though she knows that the child has not
started speaking. As these principles are inbuilt-habit of everyone to ask others for furnishing
the explanation of anything done by them, the same are known as ‘principles of natural
justice’. The two words are repeated everyday in the courts- ‘justice’ and ‘law’. Justice is an
illusion as the meaning and definition of ‘justice’ varies from person to person and party to
party. Parties feel that they have got justice only and only if the case succeeds before the
court, though it may not have a justifiable claim.
The first Code of Civil Procedure was enacted in 1859 by the Committee headed by Mr. John
Romily. It was amended in 1877 and, subsequently, in 1882, however, those amendments did
not serve the purpose, therefore, the present Code of Civil Procedure was enacted in 1908. It
was drafted by the Committee headed by Sir Earle Richards. The Committee before
submitting the draft to the West Minister Parliament travelled India, read its history and
ancient texts and then knew the traditions and culture of this country, and draft legislation
was prepared keeping all such things in view.
Under the Civil Procedure Code, 1908, courts are there to settle the disputes between
individual persons and to declare and establish their rights regarding the matters in dispute.
So whenever persons fail to solve a dispute among themselves, they can approach the Court
by filing a suit. It is called institution of suit. There are various categories of Courts. All
categories can be classified under Courts of First instance and appellate Courts. As per
Section 15 of Civil Procedure Code every suit shall be instituted in the Court of the lowest
grade competent to try it. Every Court has specific pecuniary and territorial jurisdiction. So
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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
we cannot file suits as per our convenience. Rules regarding filing of suits are guided by
various provisions of Civil Procedure Code, 1908. The civil cases, start with the institution of
the case by one party against the another party and the competent court decides the rights and
liabilities of the parties. Word 'party' in a suit means litigant. In other words 'party' in this
sense refers to a person who has part to play in the proceeding of the suit. Order 1 of the
Code of Civil Procedure, 1908 deals with the parties to the suit and also contains provisions
for addition, deletion and substitution of parties, joinder, non-joinder and misjoinder of
parties and objections to misjoinder and non-joinder.
As per the Civil Procedure Code, 1908, broadly, we may say that there are 18 stages of civil
suit, e.g., Presentation of Plaint, Service of Summons on Defendant, Appearance of Parties,
Ex-parte Decree, Interlocutory Proceedings, Filing of written statement by defendant,
Production of documents by parties (plaintiff and defendant), Examination of parties,
Discovery and Inspection, Admission, Framing of issues by the court, Summoning and
Attendance of Witnesses, Hearing of Suits and Examination of Witnesses, Argument,
Judgment, Preparation of Decree, Appeal, Review, Revision, and Execution of Decree.
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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
An affidavit is a willing, written, sworn statement or declaration of fact made by a deponent
under an oath or affirmation before an authorized individual. ‘Affidavit’ has its roots from a
Latin word which means to ‘pledge one’s faith.’ Or he/she has declared upon an oath. An
affidavit is to be signed and verified by a notary authority and is then considered as an oath
that may serve as evidence to its veracity. An affidavit is one’s testimony on paper which can
be admissible in the court of law. Everything on the affidavit has to be absolute truth. Failure
to do so, or any kind of misleading information would lead to the offense of perjury and a
resultant penalty. On the contrary, if one forgets to include something, he/she would not be
penalized. And, if something on the affidavit cannot be verified or can be backed by any
evidence, then in such a case the affiant has to declare it as his/her ‘opinion’.
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 not treated as
"evidence" within the meaning of Section 3 of the Evidence Act. However, it was held by the
Supreme Court that an affidavit can be used as evidence only if the court so orders for
sufficient reasons, namely, the right of the opposite party to have the deponent produced for
cross-examination. Therefore, an affidavit cannot ordinarily be used as evidence in absence
of a specific order of the court1.
Essentials of an Affidavit
As mentioned earlier, an affidavit is a written court testimony, it can be in either first or third
person. The affidavit should have all the information which is nothing but the truth. Failure to
do so would lead to penalty of perjury.
Each testimony containing any announcement of facts will be separated into sections, and
each passage will be numbered sequentially, and, as so might be, will be restricted to an
unmistakable bit of the subject.
Every individual, other than an offended party or respondent in a suit in which the application
is made, making an affidavit, will be portrayed in such way as will serve to recognize him
clearly: that is to state, by the announcement of his complete name, the name of his father, his
profession or trade, and the place of his residence.
When the declarant in any sworn statement addresses any facts inside his knowledge, he
should do so legitimately and positively, utilizing the words, ‘I affirm’. When the specific
reality isn’t inside the declarant’s knowledge, however, is expressed from data acquired from
others, the declarant must utilize the articulation ‘I am informed’
Types of Affidavit
There are two types of affidavit. They are: judicial affidavits used in court cases; and non-
judicial affidavits used “for all other purposes”. The judicial affidavits are submitted for
various purposes including that of evidence or as a support of an application while non-
judicial affidavits are mainly for administrative or commercial purposes.
1
Smt. Sudha Devi vs M.P. Narayanan & Ors, 1988 AIR 1381
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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
Uses of an Affidavit
The affidavit is prima facie treated as ‘evidence’ as its meaning is enshrined under Section #
of the Evidence Act. Since it is a court testimony it can be used to alter essential identity
proofs such as PAN card, credit card, birth certificate, and even one’s name. While the cost of
making one is quite minimal. All one requires is a stamp paper of about rupees ten along with
attestation fees charged by an oath commissioner or a notary public of rupees ten and finally
locate a ‘deed writer’ to type it out. The security features on an affidavit depends on the
genuineness of stamp paper and self-attestation of documents. Self-attestation of an affidavit
can be done by certifying at the foot of the same the fact of making such affidavit by entering
date and one’s signature for verification of identification.
Laws and Cases in India
The law on affidavits in India is governed by Section 139, Order XIX of the Code of Civil
Procedure, and Order XI of the Supreme Court Rules. The Acts governing affidavits are the
Oaths Act, 1969, and Notaries Act, 1952.
The attestation and verification of affidavits is of utmost importance. One of the Supreme
Court case regarding the same is the State of Bombay v. Purushottam Jog Naik, AIR 1952 SC
317. The court observed that the verification of affidavits was defective and hence
consequently lead to the rejection of affidavit. It stated that verification should invariably be
modeled on the lines of Order 19, Rule 3, of the Civil Procedure Code.
On the similar lines, the court observed in the case of Amar Singh vs Union Of India & Ors
on 11 May 2011(SC), that the Registry should scrutinize the affidavits if they are not
consistent with the above-mentioned law as well as Order XI Rules 5 and 13 of the Supreme
Court Rules.
In one of the earlier recorded case in 1910, the case of Padmavati Dasi v. Rasik Lal Dhar, the
then Calcutta High Court laid down that every affidavit should clearly express how much is a
statement of the affiant’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 will be correct to rely on such belief.
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Section 139 in CPC.
PRINCIPLE PRACTICE PROCEDURE OF AFFIDAVIT
Affidavit under Section 139 of the CPC is a statement in writing, made before an officer of
the court authorized to administer oaths. The person making the affidavits known as the
deponent for he ‘deposes’ to the facts contained therein. For instance, interrogatories are
answered by way of affidavit. Where a party is bound to disclose documents in answer to
interrogatories, it is called affidavit of documents. A declaration of facts that have been
reduced to writing and affirmed before an officer competent to administer oaths is an
affidavit.[1]
Simply put, it is a declaration of facts drawn up in first person and states facts alone and not
inference.
An affidavit must contain only such facts that are known to the deponent or such information
that he believes to be correct. Rule 3 of Order 19, CPC provides that 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 the
grounds for the same are state.
Usually, a fact has to be proved by oral evidence as affidavits are not included in definition of
evidence under Section 3 of IEA but a court may order that any fact may be proved by
affidavit.[2] The court may do so of it’s own motion or on application of any party. The court
may also, at the instance of either party, order attendance of the deponent for his cross-
examination, unless he is exempted from personal appearance in Court.
Affidavits are not included within the purview of the definition of “evidence” as has been
given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for
sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure,
1908.[3]
It is generally unsatisfactory to record a finding involving grave consequences with respect to
a person, on the basis of affidavits and documents alone, without asking that person to submit
to cross-examination.[4] Where the deponent is available for cross-examination, and
opportunity is given to the other side to cross-examine him, the same can be relied upon.
[5] Such view, stands fully affirmed particularly, in view of the amended provisions of Order
XVIII, Rules 4 & 5 Code of Civil Procedure.
[1] M Veerabhandra Rao vs. Tek Chand AIR 1985 SC 28
[2] Savitramma vs. Cecil Naronha AIR 1988 SC 1987; Section 30(c) & Order Rule 1
[3]Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Ors. (2013) 4 SCC 465
[4] Needle Industries (India) Ltd. and Ors. v. N.I.N.I.H. Ltd. & Ors. AIR 1981 SC 1298
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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
[5] Standard Chartered Bank v. Andhra Bank Financial Services Ltd. & Ors. (2006) 6 SCC
94
Order 19 in CPC.
[Link]
procedure-rule-1-2-3-affidavits-rule-1-2-3-order-xix-of-cpc-1908-code-of-civil-
[Link]#:~:text=Rule%201%20Order%20XIX%20of%20Code%20of
%20Civil,such%20conditions%20as%20the%20Court%20thinks%20reasonable
%20%3A for amendments.
Rule 1 Order XIX of Code of Civil Procedure 1908 "Power to order any point to be
proved by affidavit"
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 :
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 affidavit.
Rule 2 Order XIX of Code of Civil Procedure 1908 "Power to order attendance of
deponent for cross-examination"
(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 f the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal
appearance in Court or the Court otherwise directs.
Rule 3 Order XIX of Code of Civil Procedure 1908 "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 matters of hearsay or
argumentative matter, or copies of or extracts from documents, shall (unless the Court
otherwise directs) be paid by the party filing the same.
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Order IX of Supreme Court Rules 2013: "Affidavits"
1. The 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:
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 authorising the evidence of such witness to be given by affidavit.
2. 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, and such
attendance shall be in Court, unless the deponent is exempted from personal appearance in
Court or the Court otherwise directs.
3. Every affidavit shall be filed in the cause, appeal or matter for which it is sworn.
4. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs
to be numbered consecutively, and shall state the description, occupation, if any, and the true
place of abode of the deponent.
5. 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 there of are stated.
6. An affidavit requiring interpretation to the deponent shall be interpreted by an interpreter
nominated or approved by the Court, if made within the State of Delhi, and if made
elsewhere, shall be interpreted by a competent person who shall certify that he has correctly
interpreted the affidavit to the deponent.
7. Affidavits for the purposes of any cause, appeal or matter before the Court may be sworn
before a Notary or any authority mentioned in section 139 of the Code or before a Registrar
of this Court duly authorised in this behalf by the Chief Justice, or before an Oath
Commissioner generally or specially authorised in that behalf by the Chief Justice.
8. Where the deponent is a pardahnashin lady, she shall affirm or take oath before a lady
Registrar of this Court which shall include an Additional Registrar, duly authorised by the
Chief Justice, or before a lady Oath Commissioner, and shall also be identified by a person to
whom she is known and that person shall prove the identification by a separate affidavit.
9. Every exhibit annexed to an affidavit shall be marked with the title and number of the
cause, appeal or matter and shall be initialed and dated by the authority before whom it is
sworn.
10. No affidavit having any interlineations, alteration or erasure shall be filed in Court unless
the interlineations or alteration is initialled, or unless in the case of an erasure the words or
figures written on the erasure are rewritten in the margin and initialled, by the authority
before whom the affidavit is sworn.
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11. The Registrar may refuse to receive an affidavit where in his opinion the interlineations,
alterations, or erasures are so numerous as to make it expedient that the affidavit should be
rewritten.
12. Where a special time is limited for filing affidavits, no affidavit filed after that time shall
be used except by leave of the Court.
13. In this Order, 'affidavit' includes a petition or other document required to be sworn or
verified; and 'sworn' includes affirmed. In the verification of petitions, pleadings or other
proceedings, statements based on personal knowledge shall be distinguished from statements
based on information and belief. In the case of statements based on information, the deponent
shall disclose the source of his information, including official records.
Order XI of Supreme Court Rules 2013 : "Notices of Motion"
Unless otherwise ordered, the notice of motion together with the affidavit in support thereof
shall be served on the opposite party not less than seven days before the day appointed for the
motion where such opposite party has entered appearance, and not less than fourteen days
before the day appointed for the motion where such party has not entered appearance.
The affidavits in opposition shall be filed in the Registry not later than five days before the
day appointed for the hearing and affidavits in reply shall be filed not later than two days
before the day of hearing.
The affidavits in opposition or reply shall be served on the opposite party or parties and shall
not be accepted in the Registry unless they contain an endorsement of service signed by such
party or parties.
(2) Leave to serve short notice of motion may be obtained ex-parte from the Registrar upon
affidavit.
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