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This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad. This article discusses the documents trail Order 11,12,13 and 19 of the Civil Procedure Code, 1908  in detail.

Introduction

One of the essential elements of the rule of law is its procedures. To run a fair trial, equal opportunities shall be given to both parties to access the documents related to the case. In the Civil Procedure Code, 1908, separate chapters are provided so that a fair trial is attainable by both the parties of the suit. After the plaint has been filed by the plaintiff and written statement by the defendant, if the parties feel that proper facts were not disclosed in the suit, either of them can ask for the documents to obtain proper facts of the case.

Before we go further, we need to understand that there are two types of facts:-

  1. ‘Facto probanda’ – the facts which constitute a party’s case.
  2. ‘Facto probantia’ – the facts which will be considered as evidence if proven.

Under the procedure of discovery, only Facto Probanda can be asked by the parties.

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Discovery – Order 11

Under Civil Procedure Code, 1908 discovery basically means a pre-trial procedural aspect wherein each party is given an opportunity to obtain evidence from the opposite party or parties. In other words, we can say that it is a formal process wherein the parties get a chance to exchange information regarding the witnesses and evidence which will be presented before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that means there shall not be any ambiguity between parties while the trial is going on. Both the parties shall be clear about the plaint made and issues thereby.

There are various types of discovery:-

1) interrogatories; 

2) requests for production of documents and inspection; 

3) requests for admissions; 

4) depositions; 

5) subpoenas duces tecum; 

6) physical and mental examinations.

Nature and scope

The scope of this section is basically determined by the extent of discovery which can be made by the party with the intervention of the court. The information which is obtained during the discovery is not needed to be admissible in court. As per the requirement, parties can obtain an order from the court for the discovery of required facts/ documents from the opposite party to understand the purpose of the case. Thereby, the scope or extensibility of applying this section depends upon the nature of the case and material which is asked by the other party. So it is the discretion of the court to decide whether the application is covered as per the scope provided to the section under the code or not.  

But there are certain limits to the extensibility of the discovery of the documents. If they are redundant or overly burdensome, they are not called for discovery.

Therefore, it is understood that this procedure is provided to compel the other party to produce documents on which they are relying on, other than the evidence. When such particulars regarding the case are asked through questions, then they are termed as interrogatories. And if the other party is requesting documents then it is the discovery of documents.

Interrogatories

Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories. When, with the leave of the Court, parties administer a set of questions on the other party then it is called ‘Interrogatories’. Interrogatories shall be confined to the facts, it shall not be conclusions of law, construction of words or documents, or inference from facts. Under CPC, this is known as the ‘right to obtain information’ by the parties. The party to whom the set of questions were administered shall give reply to another party in writing and under oath. ‘Discovery of interrogatories’ means when the party, while giving answers to the interrogatories, discloses the nature of the case, with affidavit .  

As per the provisions of the code, any party in a suit can file an application to obtain an order from the court to ask interrogatories from the other party. So after filing the plaint, when the written statement is filed by the defendant and when the court sends summons to parties for the first hearing, if any party feels that there is a gap in the facts, then they can file an application under this section and ask order from the court.

Objective

The objective of the interrogatories are:-

  1. To determine the nature of the case when it is not clear from the suit filed.
  2. To make own case stronger by making the other party do admissions.
  3. To destroy the case of the opponent.

Procedure

The willing party to deliver interrogatories shall apply for leave to the court and shall submit the proposed interrogatories to the court. As per Rule 2, the court shall decide the matter within 7 days of filing the application by the party. 

While deciding the matter the court shall take into consideration the following points:

  • Any offer which may be sought by the party to be interrogated to deliver particulars;
  • To make an admission; 
  • To produce documents associated with the matters in question; or
  • Any of them.

Further, the court shall consider whether it is necessary in a particular matter, to dispose of the suit fairly or for saving costs. After one set of interrogatories are served, the parties can not serve another set without the permission of the court. The set of questions shall be the ‘question of fact’ rather than the ‘question of law’. Interrogatories shall not be allowed at the premature stage of the case.

Within 10 days of the service, the affidavit to answer shall be filed by the party to whom the interrogatories were administered. If the party fails to comply with such order of the court:-

  1. the suit will be dismissed if the party is the plaintiff; and
  2. if he is the defendant, his defence can be struck off.

Who may administer interrogatories?

Any opposite party can apply for an order for allowing the party to deliver interrogatories to another party/ies in the suit. This means that the plaintiff can apply for an order from the court  to be administered to the defendant. The defendant can also do the same. In some cases, the plaintiff/ defendant can administer the interrogatories to the co-plaintiff/ co-defendant.  

Against whom interrogatories may be allowed?

As per Rule 5 of Order XI, any party to a suit which can be a:- 

(i) Corporation; or

(ii) Body of persons;

which may be incorporated or not incorporated; empowered by the law to sue or to be sued; on its own name or giving any other person responsibility to sue or any officer, against whom interrogatories can be filed.

If a body corporate is a party to the suit, then in interrogatories it shall be specifically mentioned that to which person or the officer the questions are to be served. 

Form of interrogatories

Interrogatories are filed as per the form provided in Appendix C Form No. 2 of CPC, with required variations as per requirement.

The reply to interrogatories is filed with an affidavit in the form provided in Appendix C Form No. 3 of CPC, with required variations as per need.  

Objections to interrogatories

Objections can be raised by the parties on the following grounds:-

  1. Questions are scandalous;
  2. Questions are irrelevant;
  3. Questions are not exhibited bona fide;
  4. Matters which are inquired into are not sufficiently material at this stage;
  5. On the ground of privilege; or
  6. Any other ground. 

Rules as to interrogatories

While replying to the interrogatories, if the opposite party does not give sufficient answer, or ignore to give an answer, then the party who administered the interrogatories can apply for an order from the Court for ordering the other party to reply sufficiently, or reply further as the case may be. The Court shall pass such an order to the other party after giving them sufficient opportunity to be heard. If the party who fails to reply is the plaintiff, then the suit can be dismissed for want of prosecution. If the party is the defendant, then it will be considered that the fact has not been defended.  

As per Rule 22 of Order XI, the opposite party can use the answers to the interrogatories as evidence, partly or in whole. But at the same time, the court shall check whether the part of the answer which has been considered as evidence by the party is connected to the whole answer, or is it adverse in nature.

As per Rule 6, the parties can object some of the interrogatories but not all. If the parties want to object to the interrogatories, then within seven days of service of such interrogatories, the party shall file the application of the opposition as per Rule 7 of the Order XI of the Code. 

At the same time as per Indian Evidence Act, 1872, if the parties refuse or object to produce any particular document or information in the court, then while using it as an evidence they shall inform the court and other parties. Without the consent of the court, such documents or information which were refused initially can not be used as evidence later, unless it is lawful to do so.

Interrogatories allowed

Interrogatories which are made to be related to “any matters in issue” can be questioned to another party. By “matter,” it means a question or an issue which is related to the dispute in the suit. It need not be an issue which arises from the dispute.

Interrogatories shall not be disallowed or discarded merely on the ground that there are other ways to prove the fact in question. Interrogatories are not the same as pleading. They need not be material facts on which party will be relying, they can be evidence by which parties want to establish a particular fact at the trial.

Interrogatories not allowed

Interrogatories are used when the facts laid down in the suit are not clear. However, under certain circumstances the discovery of the facts can not be applied if:-

  1. it constitutes evidence of the opposite party;
  2. it involves the disclosure of public information or interests; 
  3. it contains any privileged or confidential information. 

Interrogatories which are in the nature of fishing or roving enquiries are not allowed. Questions in the nature of cross-examination shall not be asked. Questions of law are not permitted. Questions which are not bona fide or irrelevant to the case shall not be asked.

Setting aside and Striking off Interrogatories can be made on the following grounds (Rule 7):

  • Unreasonably or vexatiously exhibited;
  • Prolix, Oppressive, Unnecessary or Scandalous.

The Application for setting aside or striking off interrogatories shall be made within 7 days after service of interrogatories.

Cases 

In the case of Govind Narayan and Ors. vs. Nagendra Nagda and Ors., the Rajasthan High Court observed the importance of interrogatories and the time period in which it shall be filed by the party. The court held the following:

  • Reading section 30 with Order XI Rule 1 of the Code, it makes clear that the courts have the discretion to allow service on interrogatories at any stage of the suit. The court confers wide discretion, at the same time the discretion shall be exercised judiciously. 
  • The information asked under interrogatories shall have nexus with the dispute in question.
  • The stage of the suit shall be significantly considered by the court. At the same time, it is to be understood that the main purpose of this procedure is to save time and cost by encompassing the issues or narrowing down the disputes.    

In a recent case of 2018, Samir Sen v Rita Ghosh, the petitioner filed an application under Order XI after five months of the closure of the plaintiff’s – respondent’s evidence in the trial court. Because of the delay, the lower court dismissed the application for which an appeal has been filed by the aggrieved. The Jharkhand High Court observed that as per the scheme laid down for the trials in the Order XIII CPC, it requires parties to produce their original documents as per their claim founded during the time of presentation of the plaint or filing of the written statement. And because of this, the interrogatories are given under Order XI of the Code. And held that the defendant failed to file the application on time, thereby the order of the trial court was right and the writ petition was dismissed.

Appeal and revision

There is no appeal allowed in the cases where an order for granting or rejecting prayer to administer interrogatories to the other parties pronounced by the trial court. The order which is granted or rejected under this provision is not considered as ‘decree’ and therefore, are not appealable.

The revision under this section is not encouraged normally by the High Courts. As per section 115,  the matter decided by the court is at the discretion of the court and said to be ‘case decided’. The High Court interferes only when the order is clearly illegal or wrong.

Discovery of documents

When the adversary party is simply compelled to disclose the documents which are under its possession or power, then that is called as the discovery of documents. The discovery of documents is covered under the Rule 12-14 Order XI of the code.

Who may seek discovery?

Any party to a suit under oath may apply for an order from the court for the discovery of documents which are related to the matter in question of the suit from the adversary party.

Against whom discovery may be ordered?

An appropriate court can order any party of the suit to dispose of the documents which are in its power or possession to the asking party. However, the party need to be related to the suit.  

Conditions

While the discovery of documents is being asked, two conditions need to be taken care of by the court:-

  1. The discovery ordered is necessary for the fair disposal of the suit.
  2. The discovery will save costs.

Objection against discovery

The party can raise an objection if the documents required to submit comes under the purview of the privileged documents. However, objecting by filing an affidavit would not be enough, the party who is objecting also needs to give proper reasoning behind such objection. The proper reasoning will enable the court to decide the objection raised by the party. It is open to the court to inspect the documents and check the viability of the objection raised by the party. Another objection which can be filed is that discovery is not necessary at this stage of the suit. 

Admissibility of document

The documents which are asked under the discovery of documents are not always admissible in court. The documents may be admissible in the case if they are relevant to the case and which may have some impact on the issues dealt under the case.   

In Gobinda Mohun v. Magneram Bangur & Co, it was held that:

Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to obtain discovery of an adversary’s documents is a very wide one and is not limited merely to those documents which may be held to be admissible in evidence when the suit is ultimately tried.

It is true that in a suitable case a defendant may object to the production of a document on the ground that it relates solely to his title, but if on the other hand, that document may have some bearing in support of the plaintiff’s title, such objection cannot be validly raised. If an order for discovery is made under  Rule 12 of Order 11 all the documents relating to the case should be embodied in the affidavit of documents by the person against whom the order for discovery is made. If however, the defendant considers that he is entitled to protection in respect of the production of any particular documents which may be entered in the affidavit under Order 11, Rule 13 of the Code, he will be at liberty to raise such objection at the proper stage of the proceedings if and when he is ordered to produce such documents under Order 11, Rule 14 or to give inspection of them under Order 11, Rule 18.

The Calcutta High Court sought to distinguish the Judgment of the A.P. High Court in P. Varalakshmamma v. P. Bala Subramanyam 1958 wherein it was held that:

It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency of any suit to order the production of a document. The words “at any time” are very significant and important. Rule 14 does not require that the order for production should be made only after an order of discovery is obtained under Order 11 Rule 12 C.P.C.”.

Documents disclosing evidence 

The document which is related to the evidence of the adverse party can not be ordered by the court. Such orders can be detrimental to the administered party which is restricted under the code. 

Affidavit  of documents

The documents under this rule are provided with the affidavit as under the Form No. 5 in Appendix C with required variations as per circumstances.

Privileged documents

Privileged documents are covered under “crown privilege” which is based on the doctrine of “public welfare is the highest law”. However, even if this doctrine is given the importance, it does not mean that justice shall not be paramount. Thereby when parties use it as an umbrella of defence, then under such circumstances, the court has the right to verify the admissibility of such defence. After checking the document, the court can decide on the matter. Mere assertion by the party will not be entertained or accepted by the court.

Oppressive discovery

While ordering the discovery of the documents it shall not be an oppressive order by the court. The court while using its discretion power shall consider two questions:

  1. Whether it is important to order such discovery;
  2. Whether it is impossible for the administered party to give the documents ordered under discovery.

Rules as to discovery

The general rules for the discovery of the documents are as follows:

  1. Any party can get an order from the court for the discovery of the documents or for inspection of documents. 
  2. It is the discretion of the court to pass such an order.
  3. The court can use its power any time during the suit, either suo moto or by the application of the party.
  4. The court shall not pass an order for the discovery, inspection or production until the written statement has been filed by the defendant.
  5. No such order shall be passed if the application is made by the defendant until he has not filed a written statement.
  6. Discovery of the document shall not be made if the court is not of the opinion that this order will lead to fair disposal of the suit or useful for saving cost.
  7. A party to whom an order of discovery of documents has been passed, as a general rule, shall produce all the documents which are under his possession related to the suit.  
  8. If the parties are taking any legal protection under the privileges provided under the code, then the court shall verify such documents and give the protection.
  9. Failure to comply or default from the side of the parties to the order for discovery, production or inspection,  can lead to adverse inference on the party. 

Inspection of documents

Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided. As per Rule 12 of the code the party can compel other parties to produce the documents without filing an affidavit to apply to the court, relating to any matter of question-related to the suit. However, such documents need not be admissible in court unless they give out some connection in a matter of controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two categories:

  1.  The documents which are referred to in the affidavits or pleadings of the parties.
  2. The documents which are not referred to in the pleadings of the party but are in the power or possession of the parties.

And the parties are allowed to get the inspection of the former category documents, not the latter one.

Privileged documents

Privileged documents are :

  1. Public records;
  2. Confidential communication;
  3. Documents which have exclusive evidence of the parties’ title.

Such mentioned privileged documents are protected from the production. So to get benefit from this privilege and to avoid the risk of repetition, the court can order the parties to produce the document to the court. And the court can inspect such documents and ascertain the validity of the claims which were made to make that set of documents underprivileged.

Premature discovery

As per Rule 20, a discovery is termed as premature discovery or inspection:

1) When the right to discovery is based on the determination of any issue or question in dispute; or 

2) For any reason, it is desirable that any issue or question in a suit should be determined before deciding upon the right of discovery.

Non-compliance with order of discovery or inspection

As per Rule 21, the order of the court is binding in nature, and the parties who do not comply shall be liable to pay the penalty. Hereby, we can understand that the intent of the legislature to provide such provision is: 

  1. To compel the parties to disclose all the material documents and facts on oath.
  2. To restrict the parties from coming up with new documents which are actually in power or possession of the party during the trial. 

The court has the discretion to postpone a premature inspection or discovery. Under such circumstances the first thing court shall do is to determine that question or issue and afterwards, deal with the discovery. The main logic of this provision is to enable the court to distinguish between the difference of deciding an issue in suit from deciding the suit itself. However, it needs to be kept in mind that this provision will not work if the discovery in itself is necessary for solving the issue or question.

The importance of such provision is that if the defendant denies complying with the provision it will be deemed that the defense from the defendant’s side will be struck off and that will restore the position of the defendant to where he had been as if he has not defended. In the case, if the plaintiff does not comply to the provisions then it will lead to an adverse effect that means the plaintiff will disentitle to file a case as a fresh suit on the same cause of action and res judicata will be applicable. Therefore, non-compliance will impact the case adversely.

Admissions – Order 12

Admission basically means the voluntary acknowledgement made by the person against his own interest. It can be an important piece of evidence against a person. It can either be in oral, electronic form or documentary in nature. Admissions are different from the confession which is made under the criminal law. Admission is weaker than confession because the parties have the right to prove that admission made earlier was false. 

However, assertions are different from admission. It can be made in favour of themselves. It can be true or false, therefore assertions are not considered as an important piece of evidence which can be used against a person. 

Importance

As per the case of  Bharat Singh And Anr vs Bhagirathi, the Supreme Court held that:

Admissions are substantive evidence by themselves. But as per section 17 and section 21 of the Indian Evidence Act, they are not conclusive in nature. However, if admission is proved beyond doubt and duly proved, then irrespective of the fact if the witness appeared in the witness box or not, the admission can be considered admissible. 

In the case of Biswanath v Dwarka Prasad, the Apex Court observed that:

  1. The admissions are made by the maker against himself unless otherwise proved or explained.
  2. The admissions are considered as proprio vigore that means a phrase which by its own force. 

In another case of Supreme Court, Bhogilal Chunilal Pandya vs The State Of Bombay, it has been stated that even if admissions made are not communicated to the other person, then also that can be used against him. For example: if the person has written in the accounts book regarding debt, then if such evidence is available then that will be considered as an admission even if the debt was not communicated to other people.

Kinds of admissions

Under the Code, the admissions are admitted in three ways:-

  1. By agreement or by notice;
  2. Actual admissions, oral or by documents;
  3. The express or implied admissions from the pleadings or by non-traverse by agreement.

Conclusiveness of admission

The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions made can be withdrawn or explained away. It can be proved wrong. The context of the admission can be made after hearing the pleadings in entirety. Oral admissions prevail over documentary or records of rights. Even the admission, if made earlier, can be proved to be collusive or fraudulent. And one more important thing is, if the admissions are made by the co-defendant then that can not be used against other defendants.

Notice to admit case

As per Rule 1, any party to the suit can admit the whole or part of the case of the other side in writing.

Notice to admit documents

Within seven days of the notice served by the other party to admit the documents, the party shall respond to the notice. If not responded on the mentioned time then the party which fails to do so will be liable to answer the delay and the costs of providing them. 

Every document which was called upon to admit if:

  1. Not denied specifically or by necessary implication, or
  2. Not stated to be admitted by the party in their pleading, or
  3. Not replied during the reply to the notice;

shall be deemed to be admitted.

One exception to the above provision is the person under disability.

If a person without any valid reason refuses or neglects to admit documents then that person shall be penalised and will be made to pay to the opposite party. The court can suo moto call the party to admit the documents. The form of the notice to submit the documents shall be in Form No. 9 in Appendix C, with variations as per requirement.

Notice to admit facts

Any party in the suit can call the other party to admit facts of the case by giving them notice which shall not be later than nine days before the day fixed for the hearing.

And the other party if refuses or neglects to admit the facts then within six days after service of notice or as per the time prescribed by the court, shall be informed to the court. However, the costs of proving such fact or facts shall be paid by the party.  

Further admissions shall be used only for the purpose of the suit for which it has been made. It shall not be used against the party on any other occasion or in favour of any person other than the party giving the notice.

The form of the notice shall be as per Form No.10 in Appendix C and the admissions made thereby shall be in Form No. 11 in Appendix C, as per the requirements needed. 

Judgment on admissions

As per Rule 6 Order 12, Judgment on admissions can be read as-

Where admissions are made during: 

  1. Facts or pleading or otherwise;
  2. May be in oral or in writing;

The court at any stage of the suit- 

  1. Either on the application or of its own motion;
  2. Without waiting for the determination of questions by parties;  

can give out judgment as it may think fit, with regard to such admissions.

The relief which is provided under this section is discretionary in nature. It gives wide discretion to the court by giving it the power to give decree in the suit and at the same time, it is not bound to pass a decree in a reasonable and proper manner. Even the court can call for evidence before passing such decree. But if averments are made in the written statement which leads to trivial issues then under such circumstances the decree under this provision shall not be passed. In case of R.K. Markan vs. Rajiv Kumar Markan, wherein it was observed as under:-

“For passing a decree on the basis of admission of the defendants in the pleadings, the law is well settled that the admission has to be unequivocal and unqualified and the admission in the written statement should also be taken as a whole and not in part….”

While we talk about judgments which are relied upon by the court passing decree, those must be clear, unequivocal and categorical, it shall not be vague and conditional. 

However, in the case of Razia Begum v. Sahebzadi Anwar Begum, the Apex Court discouraged the courts to pass a decree under this provision which not only affects the parties but which also affects the generations.

The court observed that while passing a decree under Rule 6 Order 12, the judge should also look at Rule 5 Order 7 of the code. By reading both sections at the same time it shall be concluded that decree passed under Rule 6 is applicable to commercial transactions only, not otherwise where the claim is based on documents which need proof. So in the matters of will, gift, sale or coparcenary documents admissions can be proved to be erroneous, hence, they shall not be treated as proved on the basis of such admissions.

Production, impounding and return of documents- Order 13

Production of documents

As per Rule 1 of Order XIII, the parties or their pleaders shall produce the documents at or before the settlement of disputes. 

Admission of documents

Subject to the provisions of the Code the admission of the documents are allowed as evidence in the suit when the following particulars are made:

  1. The number and title of the suit,
  2. The name of the person producing the document,
  3. The date on which it was produced, and
  4.  A statement of it having been so admitted;

The endorsed documents shall be signed by the Judge.

Where the admission of documents in evidence is:

  • An entry in a letter-book or a shop book; or
  • Other accounts which are in current use, or
  • Entry in a public record produced from the public office or by a public officer, or 
  • An entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced; under such circumstances, the person can produce a copy of the document, after the proper examination, comparison and certification as per Rule 17 of Order VII of the Code.  

Further, the documents admitted into evidence shall be part of the record of the suit.

Return of documents

If any party to the suit or not is having the desire to receive back any of the documents submitted by him in the suit which is placed on the record is entitled to receive the documents unless it is impounded by the court under Rule 8

The court can return the documents on the following grounds:-

  1. Where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and;
  2. where the suit is one in which an appeal is allowed when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or if an appeal has been preferred when the appeal has been disposed of;
  3. During the pendency of the suit, the party can receive the documents if the following conditions are fulfilled:
  • the party is substituting the original document with a certified copy from a proper officer;
  • Undertakes to produce the original copy if required.

While returning the document which has been admitted in evidence, a receipt shall be given to the person who is receiving it. 

Rejection of documents

Rule 3 gives the discretion to the court to reject the documents on the basis of inadmissibility or irrelevance of the document. The court while rejecting the documents shall also mention the grounds of such rejection.

Impounding of documents

The court can order the parties in the suit to produce any documents or book before the court as per Rule 8 notwithstanding Rule 5 or Rule 7 of  Order 13 or Rule 17 of Order 7 of the code. 

The documents or books impounded by the court shall be in the custody of an officer of the court, for such period with subject to conditions if required. 

Affidavits – Order 19 

Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the facts and circumstances which has been taken place. The person who makes and signs is known as ‘Deponent’. The deponent makes sure that the contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the document, the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It must be paragraphed and numbered properly. 

Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing made specifically under oath or affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:

  1. It must be a declaration by a person.
  2. It shall not have any inferences, it shall contain facts only.
  3. It must be in the first person.
  4. It must be in writing.
  5. It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate. 

Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true to his personal knowledge. However, interlocutory applications can be filed wherein he can admit his belief. 

Evidence on affidavit

As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a need to prove the facts, oral evidence is normally taken into consideration by the court. However, Rule 1 Order 19 is invoked by the Court when it finds that it is necessary to make an order for any particular fact which may be proved by affidavit. If a person provides evidence under the affidavit then the opposing counsel has the right to cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which he has true personal knowledge. If he gives a statement, not to his personal knowledge then in such case he shall mention the true source. The counsel shall advise the deponent to make sure that he puts facts which he knows rather than what he believes.

The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At the same time court can also give an opportunity to the party to file the affidavit properly. 

In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.

False affidavit

Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient view will undermine the value of the document and it will harm the proceedings and will provide no justice to the parties. Criminal contempt of court proceedings can be initiated by the court against the person who files false affidavits in the court of law. Strict actions are taken against public officials who files false affidavits.

As per section 193 of the IPC:

  • a person who intentionally gives false evidence or fabricates false evidence during a judicial proceeding, he shall be punished with seven years of imprisonment and fine; 
  • and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Conclusion

The procedures provided under the CPC are so important, that if not followed properly, can adversely affect the parties. The court has discretionary powers under Order 11, 12, 13 and 19 to pass such order which it deems fit to adjudicate matter fairly. The parties shall also follow the procedures provided within the time frame, so that the case can be disposed off quickly and effectively.

References


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