DEPARTMENT OF LAW

ASSIGNMENT
Code of Civil Procedure, 1908

Guided By- Submitted By-

Mr. Sudeep Sarwan Khulesh Sahu
Asst. Prof. B.B.A., LL.B. Semester X
Department of law
Table of Contents
Que. Analyze Order XIX of Code of Civil Procedure, 1908........................................................................1

Introduction.............................................................................................................................................1

What is an Affidavit?...............................................................................................................................1

What Order XIX Says?............................................................................................................................2

Affidavit as “Evidence”...........................................................................................................................2

Consequences of Filing a False Affidavit................................................................................................7

Conclusion:..............................................................................................................................................8
 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Mr. Sudeep Sarwan
(Asst. Prof. Law Department), who gave me a wonderful opportunity to do this project of Civil
Procedure Code, 1908 on Affidavit as an assignment. After completion of this assignment I felt
that I came to know about many new things and it also contributed to add something new to my
research skills.
I am also thankful to my family and friends who co-ordinated me to finalizing this
assignment within the limited time frame.

Khulesh Sahu
B.B.A.LL.B.
Semester X
Que. Analyze Order XIX of Code of Civil Procedure, 1908.

Introduction
We often come across a situation when government departments and various other authorities
such as the electricity department, water department, regional passport authorities, banks, or
institutions ask for an affidavit declaring a certain statement such as date of birth, marriage,
change of place of residence, etc. and we submit the required one to the authority. We will
analyze the technical phase of the Affidavit which is given under Order XIX of the Civil
Procedure Code, 1908.

What is an Affidavit?
An affidavit is a sworn statement of facts by a person who knows that such facts and
circumstances have taken place. The person who makes such statement and signs it is known as a
deponent. An affidavit is a written document signed by the deponent, confirming that the
contents of the affidavit are true and correct to his knowledge and he has concealed nothing
material therefrom. It is duly attested/ affirmed by the Notary or Oath Commissioner. Such
Notary/ Oath Commissioners are appointed by the Court of Law. The duty of the Notary/ Oath
Commissioners is to ensure that the signature of the deponent are not forged. Hence, the
deponent himself needs to be present before the Notary/ Oath Commissioner during the
attestation of the affidavit.

The affidavit must be paragraphed and numbered. The person making the affidavit (the
deponent) must sign the bottom of each page in the presence of an authorized person, such as a
lawyer. Further, the affidavit must contain the full name, address, occupation and signature of the
person (deponent) making such affidavit and the date & place where such affidavit is made. The
affidavit must contain facts and circumstances known to a person and must not set out the
opinions and beliefs of the deponent. Further, one should avoid referring to facts that are based
on information received from others (known as hearsay evidence). However, if the person is
giving evidence as an expert; for instance, a psychologist or licensed valuer, then his opinion
might be stated in the affidavit.

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What Order XIX Says?
Order 19 contains 3 rules related to “Affidavit and power of courts related to affidavit” within it
which are as follows:

Rule 1: 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: Power to order attendance of deponent for cross-examination.—

(i) 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.

(ii) Such attendance shall be in Court, unless the deponent is exempted from personal appearance
in Court or the Court otherwise directs.

Rule 3: Matters to which affidavits shall be confined.—

(i) 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.

(ii) 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.

Affidavit as “Evidence”
Affidavit is treated as “evidence” within the meaning of Section 3 of The Evidence Act.
However, in the matter of Khandesh Spg & Wvg Mills CO. Ltd. Vs Rashtriya Girni Kamgar
Sangh1, it was held by the Supreme Court that an affidavit can be used as evidence only if the

1
1960 AIR 571 - 1960 SCR (2) 841.
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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 Court.

Further, the law pertaining to affidavits is covered under Section 139 and Order XIX of Code of
Civil Procedure, 1908 along with Order XI of Supreme Court Rules. Order XIX of Code of
Civil Procedure, 1908 empowers the Court to order at any point of time, any particular fact or
facts to be proved by affidavit. But the Court shall not make such order, where it appears to the
Court that either party desires the production of a witness for cross-examination and that such
witness can be produced.

The Supreme Court in Amar Singh v. Union of India and Others 2 has issued directions to the
courts registry to carefully scrutinize all affidavits, petitions and applications and reject those
which do not conform to the requirements of Order XIX of the Code of Civil Procedure and
Order XI of the Supreme Court Rules. The Supreme Court has highlighted the importance of
affidavits in this judgment and has discussed various judicial pronouncements on the aspect. The
importance of affidavits strictly conforming to the requirements of Order XIX Rule 3 of the Code
has been laid down by the Calcutta High Court as early as in 1910 in the case of Padmabati Dasi
v. Rasik Lal Dhar3. An erudite Bench, comprising Chief Justice Lawrence H. Jenkins and
Woodroffe, J. lay down:
“We desire to impress on those who propose to rely on affidavits that, in future, the provisions
of Order XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how
much is a statement of the deponent’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 would be sage to act on the deponent’s belief.”

This position was subsequently affirmed by Constitution Bench of this Court in State of Bombay
v. Purushottam Jog Naik4. Vivian Bose, J. speaking for the Court, held:

2
(2011) 7 SCC 90.
3
(1910) ILR 37 Calcutta 259.
4
AIR 1952 SC 317.
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“We wish, however, to observe that the verification of the affidavits produced here is defective.
The body of the affidavit discloses that certain matters were known to the Secretary who made
the affidavit personally. The verification however states that everything was true to the best of his
information and belief. We point this out as slipshod verifications of this type might well in a
given case lead to a rejection of the affidavit. Verification should invariably be modeled on the
lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not.
And when the matter deposed to is not based on personal knowledge the sources of information
should be clearly disclosed. We draw attention to the remarks of Jenkins, C. J. and Woodroffe, J.
in Padmabati Dasi vs. Rasik Lal Dhar5 and endorse the learned Judges’ observations.”

In Barium Chemicals Limited and another v. Company Law Board and others6, another
Constitution Bench of this Court upheld the same principle:
“The question then is: What were the materials placed by the appellants in support of this case
which the respondents had to answer? According to Paragraph 27 of the petition, the proximate
cause for the issuance of the order was the discussion that the two friends of the 2nd respondent
had with him, the petition which they filed at his instance and the direction which the 2nd
respondent gave to respondent No. 7. But these allegations are not grounded on any knowledge
but only on reasons to believe. Even for their reasons to believe, the appellants do not disclose
any information on which they were founded. No particulars as to the alleged discussion with the
2nd respondent, or of the petition which they said two friends were said to have made, such as its
contents, its time or to which authority it was made are forthcoming. It is true that in a case of
this kind it would be difficult for a petitioner to have personal knowledge in regard to an
averment of mala fides, but then were such knowledge is wanting he has to disclose his source of
information so that the other side gets a fair chance to verify it and make an effective answer. In
such a situation, this Court had to observe in State of West Bengal vs Kesoram Industries Ltd.
And Ors7, that as slipshod verifications of affidavits might lead to their rejection, they should be
modeled on the lines of Order XIX, Rule 3 of the Civil Procedure Code and that where an
averment is not based on personal knowledge, the source of information should be clearly

5
37 Cal 259.
6
AIR 1967 SC 295.
7
1952 SCR 674: AIR 1952 SC 317
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deposed. In making these observations this Court endorses the remarks as regards verification
made in the Calcutta decision in Padmabati Dasi v. Rasik Lal Dhar8.”

Another Constitution Bench of this Court in A. K. K. Nambiar v. Union of India and another 9,
held as follows:
“The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit
was verified. The affidavits which were filed in answer to the appellant’s petition were also not
verified. The reasons for verification of affidavits are to enable the Court to find out which facts
can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to
knowledge or allegations may be true to information received from persons or allegations may be
based on records. The importance of verification is to test the genuineness and authenticity of
allegations and also to make the deponent responsible for allegations. In essence verification is
required to enable the Court to find out as to whether it will be safe to act on such affidavit
evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of
proper verification with the result that the affidavits should not be admissible in evidence.”

In the case of Virendra Kumar Saklecha v. Jagjiwan and others10 this Court while dealing with an
election petition dealt with the importance of disclosure of source of information in an affidavit.
This Court held that non-disclosure will indicate that the election petitioner did not come forward
with the source of information at the first opportunity. The importance of disclosing such source
is to give the other side notice of the same and also to give an opportunity to the other side to test
the veracity and genuineness of the source of information. The same principle also applies to the
petitioner in this petition under Article 32 which is based on allegations of political motivation
against some political parties in causing alleged interception of his telephone. The absence of
such disclosure in the affidavit, which was filed along with the petition, raises a prima facie
impression that the writ petition was based on unreliable facts.

8
(1910) ILR 37 Cal 259
9
AIR 1970 SC 652
10
(1972) 1 SCC 826
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In case of M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others 11, a three
Judge Bench of this Court in dealing with petitions under Article 32 of the Constitution held that
under Order XIX Rule 3 of the Code it was incumbent upon the deponent to disclose the nature
and source of his knowledge with sufficient particulars. In a case where allegations in the
petition are not affirmed, as aforesaid, it cannot be treated as supported by an affidavit as
required by law.

The purpose of Rules 5 and 13 of the Supreme Court Rules, set out above, has been explained by
this Court in the case of Smt. Savitramma v. Cicil Naronha and another 12. This Court held, in
para 2 at page 1988, as follows: “…In the case of statements based on information the deponent
shall disclose the source of his information. Similar provisions are contained in Order 19, Rule 3
of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party
may prove a fact or facts by means of affidavit before this Court but such affidavit should be in
accordance with Order XI, Rules 5 and 13 of the Supreme Court Rules. The purpose underlying
Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to
whether it would be safe to act on such evidence and to enable the court to know as to what facts
are based in the affidavit on the basis of personal knowledge, information and belief as this is
relevant for the purpose of appreciating the evidence placed before the Court, in the form of
affidavit….”

In the same paragraph it has also been stated as follows:

“…If the statement of facts is based on information the source of information must be disclosed
in the affidavit. An affidavit which does not comply with the provisions of Order XI of the
Supreme Court Rules, has no probative value and it is liable to be rejected…”

Supreme Court of India has made it very clear that perfunctory and slipshod affidavits which are
not consistent either with Order XIX Rule 3 of the CPC or with Order XI Rules 5 and 13 of the
Supreme Court Rules should not be entertained by the Courts.

11
[(1982) 1 SCC 31]
12
AIR 1988 SCC 1987
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In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik 13, Barium
Chemicals Ltd.14, and A.K.K. Nambiar15 and in several other judgments pointed out the
importance of filing affidavits following the discipline of the provision in the Code and the said
rules.

Consequences of Filing a False Affidavit

A false affidavit is one in which a person deliberately swears false and frivolous statements to be
true, correct and accurate in an affidavit and signs it, in order to deceive and mislead the Court.
This causes inordinate delay in proceedings and is a clear misuse of the judicial process. Filing
of false affidavit is an offence of perjury under the provisions of the Indian Penal Code. It is a
criminal offence under Section 191,193,195,199 of Indian Penal Code, 1860 to make false
affidavit in one’s pleadings or filing false affidavit or false document in evidence before court of
law. Further, criminal contempt of court proceedings can be initiated against the person filing
false affidavit.

Criminal proceeding may be initiated against the guilty by making an application under section
340 Read with section 195 of Code of Criminal Procedure, 1973 before the criminal or civil
court for giving false evidence.

When false affidavit or false documents are given in any quasi-judicial or administrative
proceedings, then a private complaint can be filed under Section 200 of the Code of Criminal
Procedure, 1973 before the competent magistrate. Section 193 of the Indian Penal Code deals
with the Punishment for false evidence. Whoever intentionally gives false evidence in any stage
of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of
a judicial proceeding, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to 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.

13
(supra)
14
(supra)
15
(supra)
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Conclusion:
Hence, at the concluding note, we can say that an Affidavit is a document that includes
affirmation and declaration in the case of persons by law allowed to affirm or declare instead of
swearing. It is a voluntary statement that includes a person's declaration in writing that is signed
by a deponent and accompanied by an oath. In Latin, Affidavit means to pledge ones faith. It is
necessary that the affidavit is witnessed and signed by a notary authority, along with the sign of
the affiant. Affidavit is taken to be sort of a written court testimony.

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