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Gulshan Tanwar (Advocate)     19 January 2010

Affidavit

In an Application filed under the provisions of CPC, 1908 and it is not supported by an Affidavit and the Application is decided by the Hon'ble Court and later upon inspection .i.e. after the expiry of limitation period, what are the pros and cons of such application and how it can be set aside?



 11 Replies

Devajyoti Barman (Advocate)     19 January 2010

An order can not be set aside merely on the ground that the related application was not supported by affidavit. An affidavit is a technical procedure and the absence of it is not damaging unless it could be shown that the other party was prejudiced by it.

1 Like

Y V Vishweshwar Rao (Advocate )     20 January 2010

usually Affidavit will be filed  in Support of a Petition , the Grounds will be mentioedn in the Affidavit  for the relief in thge petition . In the given case the orders are passed with ut any supportign affidavit  annexed to Petition. The grounds on which the Court passed the order is to be  considered , if the order is supported by reasonable grounds - facts  already on record , it is supported by Record , otherwise , CMA/or/ other applicabel proceedigns/ can be taken  against  such order ! 

 

Gulshan Tanwar (Advocate)     20 January 2010

Dear Rao,

 

Thanks for the reply and problem is that the respondent lawyer is not appearing b4 the Hon'ble Court and had filed frivolous applications without any affidavits and even without the signatures of the respondent :) even the court knows this and today it was the date of the case, again same thing lawyer didnt appeared. Orders had been passed for the notice and the matter will be taken again on next date. :)

Adesh Kumar Sharma (Senior Associate Lawyer)     21 January 2010

Dear Mr. Tanwar,

This in reference to your quarry, I would suggest you to go through the provision under Order 6, Rule 14 and 15 of Code of Civil Procedure Code, which mandate that every pleading shall be signed by the party and his Pleader (if any).  

Rule 14.  Pleading to be signed

Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

1.  sub Rule 4 is inserted by Act No. 104 of 1976, sec. 56 (w.e.f. 1-2-1977).

15. Verification of pleadings

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

1[(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.]

 

Therefore you please see case laws and research on the issue involved herein, surely you will find something in your favour.

I hope, this would be helpful to you.

Thank you

 

Gulshan Tanwar (Advocate)     22 January 2010

Dear Adarsh,

 

In this regard I would like to say please go through Order 19 Rule 2 (2) and also rule 20. :)

Adesh Kumar Sharma (Senior Associate Lawyer)     22 January 2010

Dear Mr. Tanwar,

The Order 19 Rule 2 and sub Rule 2 does not apply on supporting affidavits of a plaint or other application, however it applies where the evidence has to be given by affidavit in support of an interlocutory application under the order of the Court.

You please see “AIR 1988 Supreme Court 1381, (1988) 2 SCJ 422, AIR 1990 Raj 87 (90)”, wherein it was held by the Supreme Court that affidavits are not included in definition of “Evidence” under section 3 of Evidence Act and can be used as evidence only if for sufficient reason court passes order under Order 19 Rule 1 or 2.

Now coming up, as to what is the meaning of the word “Application” used in the Order 19 Rule 2, “An “application” in this rule, means interlocutory application  such as an application under order 9 Rule 13 of the code or an application for injunction, attachment before judgment, appointment of a receiver etc.  See AIR 1968 Madh Para 33 and 35, AIR 1967 Guj 214 (218) DB.

Execution application is an original proceeding and not interlocutory and Rule 2 does not apply. See AIR 1963 Andh. Para 445 (447), ILR (1961) Andh. Para 515 (523).

Now other holdings of the court: “An application under the Succession Act 1925 for probate or letters of administration remains an application so long as it is not contested as the provision of Rule 2 will apply. But if it is contested, the procedure to be followed is that of a suit and consequently Rule 1 should be applied and not Rule 2. See “AIR 1967 Guj 214 (217, 218) (DB)”.

Other holdings of the Court: When the affidavit was filed in support of petition and not by way of evidence, the petition under Order 19 Rule 2 for grant of permission to cross examination of the deponent is not permissible. See (1998) 1 Mad. LJ 665 (666), (1998) 1 CTC 280.  

My dear Friend in the Code of Civil Procedure 1908, which applies on the National Capital Territory of Delhi, there are only 3 Rules. Therefore I cannot say that as to what has been laid down under Order 19 Rule 20. There may be State amendment which does not apply on Delhi Court. So I cannot comment on Rule 20.

Thanking You.

 

  

Gulshan Tanwar (Advocate)     22 January 2010

Dear Adersh,

Thanks for the light on the subject, this I Had told to the court, but dont know why the Judge is not listening to the arguments made in this regard.

thanks and regards

Adesh Kumar Sharma (Senior Associate Lawyer)     23 January 2010

Dear Mr. Tanwar,

I would again suggest you to make some research under Order 6 Rule 14 sub rule 4; surely you will find something in your favour. However as per my knowledge, it is merely a technical error that can be cure at any stage of proceeding. If there is some objection by the opposite party, one opportunity would be granted to the party to cure the said defect, but the proceedings cannot be dismissed on this ground alone.

The defect in signing and verifying the pleadings can be cured by subsequent filing of copy of the pleading dully signed. See (1973) 2 Andh. WR 112 (115).

An application for restoration of a suit dismissed in default, signed by the plaintiff’s Advocate alone, but who has knowledge of the facts causing default is in sufficient compliance with the Order 6 Rule 14 sub rule 4. See (1990) 1 Gauhati LR 375 (382).

Pleadings –signing of memorandum – counsel signing it on behalf of his client - cannot be questioned by opposite party on the ground that it was not signed by the party. See 1996 AIHC 5005.

There is no difference between Vakalatnama, Affidavits and pleadings as to the procedure by which they can be signed. See AIR 1928 Mad. 175 (DB).

Substitution of Legal representative – application for – advocate filing vakalatnama authorised to sign application and other pleadings for and on behalf of plaintiff – application signed by Advocate along with verification clause by plaintiff cannot be held illegal. See 1995 AIHC 4568 All.

I would suggest you to see the contents of vakalatnama, whether there is any clause in vakalatnama, whereby the Advocate is dully authorized to sign pleadings on behalf of his client.  And in absence of such clause you can take this objection otherwise cannot.   

Other views of the Courts.

In case where the plai9nt contains the allegation of fraud which must be false or true to the knowledge of the plaintiff, the defendant can insist on the plaintiff himself signing the plaint. See (1887) 9 All 505 (DB).

The irregularity in the signature or verification of plaint is a matter of substance and the suit cannot be said to be validly instituted if the plaint does not comply with the provision of this Rule or Rule 15. See (1967) 69 Pun LR 238.

The word “acquainted” contemplates personal acquaintance or at any rate, something more than instruction received by the counsel from his client. See 1967 ALL WR (High Court) 475.

Judges are bound to see that the pleadings are signed properly or not. See AIR 1914 Low Bur 198.

 

 You cannot take this objection that the application has not been signed by the party and is not with supporting affidavit. Because both the defects are curable at any stage of proceedings.

It has been held by the Various High Court and Supreme Court that if   there are some judgments of the High Courts, that if the a Lawyer has been dully authorised by executing a Vakalatnama in his favour, then, the said Lawyer can verify the Pleadings on behalf his Client.  

 

Parveen Kr. Aggarwal (Advocate)     30 January 2010

Dear Adesh
With regard to use of word "pleadings" in Order 6, Rule 14/15, I would like to draw your attention towards the provision of Order 6, Rule 1 of the CPC which says that "Pleading", shall mean plaint or written statement. That being so, any application filed in a suit may not be covered in pleadings used in Rules 14 and 15 of Order 6.

Bidesh Sinha (Advocate)     11 August 2011

In my case written Statement was filed admitting the case of the plaintiff but that written statement is not supported with affidavit and the person filed written statement died, now his legal heirs filed a misc. case u/o 23 rule 3A of C.P.C. challenging the judgement alleging that the signature of person filed W.S. is not genuine and it is forged by some one. Is there any case law

Mani (land owner)     22 February 2018

U/O 11 r 12 of C P C Application can be filed without affidavit.


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