Counter Affidavit
2017 P L C (C.S.) 878
[Supreme Court (AJ&K)]
Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja
Saeed Akram Khan, JJ
Maj. (Rtd.) MAJID HUSSAIN, DIRECTOR ESTATE, MIRPUR UNIVERSITY
OF SCINCE AND TECHNOLOGY (MUST), MIRPUR and 52 others
Versus
VICE-CHANCELLOR MIRPUR UNIVERSITY OF SCIENCE AND
TECHNOLOGY (MUST) MIRPUR and 49 others
10. Another most heated argument advanced on behalf of the appellants is that as
no counter affidavit has been filed by the respondents with their written statement
before High Court, thus, under the principle of law laid down by this Court in the case
reported as Ehtezaz Asgher and others v. Ch. Muhammad Sajawal and 2 others [2012
YLR 1580] it will be deemed that the whole case of the petitioners/appellants has been
admitted by respondents, both on facts and law. In our opinion, this argument is
partially misconceived. According to celebrated principle of law, there is no estoppel
against law nor mere non-filing of counter affidavit can be treated as a valid reason to
frustrate the spirit of law. According to statutory provisions and principle of law, the
affidavits are normally accepted regarding the question of fact which otherwise cannot
be established from record or other evidence. Even an affidavit cannot be given
preference over record or the documents. The principle of law laid down in the referred
judgment is neither absolute and unqualified nor is of universal application. It depends
upon the factual and legal propositions of each case as to regarding which of the
propositions and to what extent an affidavit is admissible. Therefore, we are unable to
agree with the opinion of learned counsel for the petitioners/appellants that mere non-
submission of counter affidavit amounts to admission of whole case of the
petitioners/appellants. Therefore, this argument stands repelled.
2017 Y L R Note 336
[Sindh]
Before Muhammad Junaid Ghaffar, J
NIRMAL DAS GE HANI---Plaintiff
Versus
TEKCHAND and another---Defendants
Civil Procedure Code (V of 1908)---
----[Link] Rr. 2 & 3---Attendance of the deponent for cross-examination---Scope---
Plaintiff while arraying subsequent transferee of suit property as defendant sought his
attendance being deponent for cross-examination--- Plaintiff/petitioner alleged that
said other defendant had made certain averments in his affidavits and counter-
affidavits which were an attempt to controvert the facts which were actually related to
defendant---Other defendant contended that interlocutory application was to be
supported by affidavit(s) and the person(s) swearing affidavit(s) were not required to
be cross-examined and he dubbed the application of plaintiff for cross-examination as
a trial within a trial---Validity---Order XIX, R.2, C.P.C. empowered the court to order
attendance of deponent for cross-examination---Leading of evidence had been
permitted by the court---Court, at the instance of either party could order the
attendance of deponent of affidavit for cross-examination---Such rule was only
attracted in case where evidence was being permitted by the court through affidavit as
against leading evidence directly by appearing in the witness box---Once such
evidence through affidavit was permitted, an opponent could make an application for
attendance of such witness for cross-examination but the present case did not fall in
that rule---Rule 3 of [Link], C.P.C. provided that all affidavits were to be confined to
such facts as the deponent was able to prove, of his own knowledge, except on
interlocutory applications, on which statements his belief might be admitted; provided
that the grounds thereof were stated---Application of the plaintiff appeared to be
misconceived as it related to the facts for which affidavit had been sworn in respect of
interlocutory application and that was not an affidavit for giving evidence in the
matter---By filing of affidavits and counter-affidavits, the facts in dispute were
not being finally decided, which ultimately had to be done after completion of the
exercise of evidence---In the present case, neither the plaintiff nor the other
defendant, by swearing affidavits and counter affidavits, had sought final
adjudication of the matter or some fact was being proved finally---Affidavits
which had been sworn by the other defendant were based on the averments of the
plaintiff as described and disclosed in the plaint---Plaintiff had also been unable to
point out any material portion in the counter affidavits, as apparently to specify
contradiction and ambiguity on which he intended to question the other defendant---In
such a manner, application of plaintiff was if allowed, there would always be a mini-
trial within a full-fledged trial in every suit, resulting in delay and un-necessary
proceed-ings which were to be deprecated---Application was dismissed accordingly.
[Paras. 5, 6, 7, 8 & 11 of the judgment]
Abdul Hamid v. Malik Karam Dad PLD 1966 (W.P.) Lah. 16; Aquil Usman
Dhaduk v. Jamil Akhtar Kiyani 2004 YLR 122; Bank of Credit and Commerce
International (Overseas) Ltd. v. Karachi Tank Terminal Ltd. PLD 1988 Kar. 261 and
Abdul Sattar Shah Zaidi v. University of Karachi PLD 1989 Kar. 71 ref.
2013 P L C (C.S.) 934
[Supreme Court (AJ&K)]
Present: Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR
through Chief Secretary and 2 others
Versus
MUJAHID HUSSAIN NAQVI and another
d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss. 42 & 44---Azad Jammu and Kashmir Supreme Court Rules, 1978, Rr.4 & 8---
Appeal to Supreme Court---Non-filing of counter-affidavit by appellants in the High
Court---Effect---Respondent had raised objection that no counter affidavit had been
filed by the appellants, in the High Court as well as in Supreme Court---Validity---In
the absence of a counter-affidavit, the uncontested affidavit could not be believed---
Uncontroverted affidavit had to be believed, if there was no material to the contrary
on the record---Written statement and the original file summoned from the Services
and General Administration Department was available before the High Court---
Objection raised by the respondent that the affidavit was uncontroverted, had no force,
in circumstances.
Necessity of Cross-Examination
2010 S C M R 1915
[Supreme Court of Pakistan]
Present: Javed Iqbal, Muhammad Sair Ali and Tariq Parvez Khan, JJ
MUHAMMAD BASHIR and others---Appellants
Versus
Mst. LATIFA BIBI through LRs---Respondent
c) Affidavit---
----Contents of affidavit---Proof:--Deponent, non-appearing before court---
Effect---Where deponent could not be cross-examined
regarding Contents of affidavit, it cannot be equated to that of evidence and such
affidavit swron in would have no substantial bearing on merits of the case having
little evidentiary value.
Mst. Khairunisa and 6 others v. Malik Muhammad Ishaq and 2 others PLD 1972
SC 25; Nazeer Ahmed Khan and 2 others v. Muhammad Ashraf Khan and 3
others PLD 1975 Kar. 598; Malik Muhammad Ishaq v. Messrs Erose Theatre and
others PLD 1977 SC 109; Messrs Shalimar Ltd. Karachi v. Raeesuddin Siddiqui
and 3 others 1979 CLC 338; Muhammad Yousaf Ishaq v. Abdul Majid Khan and
5 others 1984 CLC 243; Abdul Karim Qureshi v. Abdul Khaliq 1984 CLC 259;
Mst. Sakina and another v. Hussain and 5 others 1986 CLC 288; Ataullah Khan
Malik v. The Custodian, Evacuee Property (West) Pakistan and 5 others PLD
1964 SC 236; The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585;
Rehmatullah v. Tufail Hussain and others 1987 CLC 792 and Zafar Mirza v,
Naushina Amir Ali PLD 1993 Kar. 775 rel.
1989 M L D 1894
[Supreme Court of India]
Present. A.P. Sen. and L.M. Sharma, JJ
Sort. SUDHA DEVI---Appellant
versus
M. P. NARAYANAN and others---Respondents
a) Evidence Act (I of 1872)----
---S.3--Civil Procedure. Code (V of .1908), OXIX, Rr. 1 & 2--Affidavit- Evidentiary
value--Affidavits are not included en the definition of `evidence' in S: 3 of the
Evidence Act and can be used as evidence only if for sufficient reason Court passes an
order under [Link], R. 1 or 2 of the Civil Procedure Code.
In the instant case the plaintiff was not allowed to fill up the lacuna in evidence
belatedly by filing affidavit at the Supreme Court stage.
2003 Y L R 2708
[Lahore]
Before Farrukh Lateef, J
MUHAMMAD SHABAN---Petitioner
Versus
JUDGE FAMILY COURT and others---Respondents
Writ Petition No.2904 of 2003, decided on 9th July, 2003.
(a) Affidavit---
---- Document of affidavit without certificate of the Oath Commissioner certifying
that its contents were deposed before him on oath or solemn affirmation and the
executant of the said document was either known to him or was identified before him
by a person who was known to him, could not be deemed as affidavit and thus had no
evidentiary value and could be ignored.
P L D 2004 Lahore 21
Before Muhammad Sair Ali, J
MUHAMMAD NAWAZ---Petitioner
Versus
BARKAT ALI --- Respondent
Civil Revision No.689 of 2003, heard on 24th September, 2003.
(d) Civil Procedure Code (V of J908)-----
----O. XIX, R.3---Affidavit---Admissibility---Procedure---Filing of counter-
affidavit---Effect---Affidavit, ipso facto is not admissible in evidence and its contents
cannot be accepted ipsi dixit without cross examination of deponent---Immaterial
whether a counter-affidavit is filed by opposite side or not---Duty of Court is to call
for record, direct cross examination of deponent and take evidence to form opinion.
2014 M L D 1206
[Lahore]
Before Muhammad Farrukh Irfan Khan, J
Mst. IQBAL BIBI---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
West Pakistan Family Courts Act (XXXV of 1964)---
----Ss.5, Sched. & 11---Qanun-e-Shahadat (10 of 1984), Art.133---Constitution of
Pakistan, Art.199---Constitutional petition---Family court decreed the suit without
recording evidence of the parties---Effect---Affidavit without production of the
deponent in the court and without giving an opportunity of cross-examination to the
other side by the court would have no evidentiary value---Party against whom an
affidavit was produced was entitled to cross examine the person who sworn the
affidavit, about the contents thereof---If the deponent was not produced for cross-
examination, his affidavit in such circumstances would loose all its force as probative
piece of evidence and could not be acted upon---Constitutional petition was allowed,
matter was remanded to the Family Court with direction to record evidence of parties
and then decide the suit afresh in the light of evidence adduced by the parties.
P L D 2004 Lahore 290
Before Mrs. Fakhar-un-Nisa Khokhar, J
Mst. SHAHNAZ BEGUM---Petitioner
Versus
MUHAMMAD SHAFI and others---Respondents
(b) West Pakistan Family Courts Act (XXXV of 1964)---
----S.5 & Sched.---Civil Procedure Code (V of 1908), [Link], R.1--Qanun-e-Shahadat
(10 of 1984), Art.133---Affidavit without production of the deponent in Court and
without giving an opportunity of cross-examination to the other side by the Court will
have no evidentiary value---Mere affirmation or denial of a fact in written statement
would not be legal proof of fact---Party against whom an affidavit is produced is
entitled to have deponent put in witness-box and to cross-examine him--If the
deponent is not produced for cross-examination, the affidavit, in such circumstances,
loses all its force as a probative piece of evidence and cannot be acted upon.
Zafar Mirza v. Mst. Naushina Amir Ali PLD 1993 Kar. 775; Atta Ullah Khan Malik
v. The Custodian, Evacuee Property West Pakistan and others PLD 1964 SC 236; The
President v. Justice Shaukat Ali PLD 1971 SC 585 and Rehmat Ullah v. Tufail
Hussain and others 1987 CLC 792 fol.