This article has been written by Karan Garg, pursuing the course on Introduction to Practical Contract Drafting from LawSikho.
An affidavit is a statement made by a person before the court or an appropriate adjudicating authority, wherein the deponent (the person who makes the statement) states the facts and information related to the matter in dispute, in his knowledge and swears it to be true. There are various provisions in Indian law, which explain what an affidavit is and the proper procedure that must be followed while submitting it before the court.
Indian Civil Procedure Code 1908 : Order XIX (19)
As per Rule 1: A court can at any time, for which reasons can be recorded, order that an affidavit shall be submitted to prove any facts or circumstances as the court may wish and find reasonable.
Rule 3 (1) describes the situation or circumstances which can be explained through an affidavit. It says that affidavits will be confined to such facts that the deponent is able to prove through his own knowledge. However interlocutory applications are excluded from the ambit of this rule and therefore in interlocutory applications, statements of his belief may also be admitted provided proper reasoning and explanation is given for the same.
Importance of an affidavit
As we have seen that an affidavit is the testimony of the deponent, sworn by himself to be true, on the basis of which the court proceeds with trial and examines cases on its merit, hence it becomes very vital that people speak the truth while deposing, therefore, to prevent rampant abuse of process and court resources, any act of lying or giving false evidence under oath is a punishable offence under Indian Penal Code (IPC).
- Accordingly, Section 193 of IPC : Whoever intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for using it in a proceeding, will be liable to be punished with imprisonment up to 7 years.
Essential elements of an affidavit
Certain aspects of an affidavit are of vital importance to be included, so as to validity to the said affidavit.
- The declaration should be made by a legal person,
- Contents of the affidavit should relate and connect with the said facts of the case,
- The declaration must be in writing,
- The language of the said declaration must be in the first person,
- The affidavit must be signed or affirmed, before a Magistrate or other authorised and appropriate officer.
Important case laws regarding an affidavit
- In the case of State of Bombay vs. Purushottam Jog Naik, the Hon’ble Court ruled that verifications should be drafted as per format and guidelines given in Order 19, rule 3, of the Civil Procedure Code. The court also noted that when the facts or information submitted by the deponent is not based on personal knowledge, then it is vital that the sources of information should be clearly revealed by the deponent.
- Further, in the landmark case of Padmabati Dasi vs. Rasik Lal Dhar, the Calcutta High Court analysed the rules governing the affidavit, a brief of which is given below :
In this case, the deponent making the submissions did not reveal the basis on which his testimony stands. It was not revealed what the information was, nor did it reveal the facts on which he is making his submissions. It was a statement that just a mere cursory or general averment to the truthfulness of submissions made in the affidavit is not sufficient. The complete details of what the deponent knows to be true, along with the reasons for such belief and how much information he thinks are correct as per the advice he received, all must be stated specifically and clearly. This rule is laid down so that the judge can safely infer whether the statement made by the deponent is reliable or not.
- In Virendra Kumar vs. Jagjiwan, the court held that the source of information or the belief deposed by the deponent in his affidavit must be clearly and unambiguously revealed.
- In A.K.K. Nambiar vs. Union of India, the Hon’ble Supreme Court ruled and analysed the importance of the verification clause in a general affidavit and said that verification is important because it tests the genuineness and authenticity of allegations/averments made in the petition/affidavit and also to hold the deponent responsible for allegations or statements.
Therefore, essentially, verification enables the court to find out as to whether it will be safe to act on affidavit evidence given by the deponent.
Process of drafting an affidavit
- At the top, write the name of the court, tribunal in which the affidavit is to be submitted, along with the allotted case/suit no.
- Mention the names of parties in brief.
- As a heading/title of the document, mention ‘AFFIDAVIT’ in the bold and underlined font.
- Thereafter give the details of the deponent (the person who is testifying as to the truth of submissions made by him, in the main petition) such as the name of the deponent and his father, age of deponent and his residential address, followed by ‘Do solemnly affirm and declare as under.’
- In the first paragraph after the introduction, the deponent has to mention that he/she is the plaintiff or the defendant (as the case may be) in the suit for which the affidavit is being submitted and he has to make a declaration that he is fully aware and conversant with the facts of the case and can testify for the same.
- In the second paragraph, mention that the petition or submission made in the petition has been drafted by the counsel of the deponent and that the contents have been read over in vernacular language, with detailed explanation made to the deponent, along with consequences of the same, been explained to him.
- Mention in brief the circumstances of the suit or the submission made by the deponent. In case the main petition already contains the details, the same need not be repeated in the affidavit and one can mention that ‘contents of the petition are not being repeated here for sake of brevity and therefore one shall consider the same as a part of this affidavit.’
- Lastly, state that it is the deponent’s true and correct statement, followed by a paragraph about verification, which will state that contents of the affidavit are true and correct to the deponent’s knowledge and that nothing material has been concealed.
IN THE_________ COURT, NEW DELHI
CIVIL SUIT NO._______ OF 2021
IN THE MATTER OF:
I, __________S/O__________, aged _____ years, R/O ______________________, do hereby solemnly affirm and declare as under:-
- That I am the plaintiff in the above-noted suit and fully conversant with facts of the case and able to depose about the same.
- That the accompanying suit/plaint has been drafted by my counsel on my instructions and contents of the plaint have been read over and explained to me in vernacular language and I have understood the meaning and implications thereof and the facts stated therein are correct.
- That the contents of the suit are not being repeated here for the sake of brevity and same shall be considered as part of this affidavit also (Optional but you can also add the details of submissions to be made before the court, to which deponent is testifying to be true to his knowledge).
Verified at New Delhi on this______day of _____May 2021, that contents of the above affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.
As we have seen above, an affidavit forms an essential part of the arsenal of the judicial system, in testing the veracity of the statements made by the deponent and holding them to their truth. In absence of an affidavit, anyone could make false claims with the intention to mislead the courts. Although the drafting of an affidavit would appear to be fairly simple, it is the contents of the affidavit that are of the utmost importance. It must be remembered while drafting that, the affidavit must relate to and connect with the said facts of the case, it should state what the deponent personally knows and it should contain a paragraph on verification, signed in presence of the appropriate authority.
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