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Ravikant Soni (LAWYER IN JAIPUR)     21 June 2010

can a witness depose of affidavit without being present

Can a witness depose of affidavit without being present in the court???



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 16 Replies

Adv Archana Deshmukh (Practicing Advocate)     21 June 2010

An affidavit can be affirmed before a notary and can be submitted in the court, this is valid. But the witness will have to remain present in the court for cross-examination.

Ravikant Soni (LAWYER IN JAIPUR)     22 June 2010

Ms. Archana,

Is chief filing of affidavit enough or witness shall have to present in the court??

regards!!

Adv Archana Deshmukh (Practicing Advocate)     22 June 2010

Affidavit can be filed by the lawyer also, the witness can be called on the next date for cross.

Adv Archana Deshmukh (Practicing Advocate)     22 June 2010

I mean to say filing of the notorised affidavit can be done by lawyer also if the witness is unable to come to the court due to some reason on that date. But he'll have to remain present for cross.

Ravikant Soni (LAWYER IN JAIPUR)     23 June 2010

Thanks Archana. 

Can you refer any apex court rulling??

SRIKANTH MYLAVARAPU (SENIOR OFFICER (LEGAL))     23 June 2010

SIR,

As per the recent ammendment of CPC examination-of-chief must be in the form of affidavit.

if ur request the court isted of filing affidavit it has to be done the chief examination in the court hall if the judge accepts it the examination can be done in court.

once u file an affidavit and the witness wont present before the court the evidence will be eschewed and the contents in the afffidavit will not looked in to

if u get an appointment of an advocate comissioner the witness can present before the commissioner

1 Like

Adv Archana Deshmukh (Practicing Advocate)     23 June 2010

There is no need of any ruling Ravikant, this is a very general common thing.

1 Like

selvambaby (lawer)     25 June 2010

Dear Ravikant Soni,

     The reply is in the affirmative.Refer to sec 139 of CPC.

     It is very clear that a deponent can very well affirm  the affidavit before a Notary Public w.e.f  01.02.1977(1976 amendment) (or) before an officer  or any other person appointed by the High Court of India (or) any officer appointed by any other court which the state govt has generally or specifically empowered in this behalf. Hence,a witness need not necessarily be present before the court to depose an affidavit,if he fulfills the above nditions,but he should cause himself to be necessarily present for the cross.

kranthi (retainer advocate)     25 June 2010

witness has to present  before court to take affirmation, if the witness is not able to come court u can file a  petition to appoint commissioner .

N.K.Assumi (Advocate)     02 July 2010

i agree with Kranti, but with a caution that before commissioner is appointed by the court the court should satyisfy itself that there are grounds for appointing commissioner.

Devajyoti Barman (Advocate)     02 July 2010

The affidavit in chief can not be accepted by the court if at the time of filing or thereafter the deponent does not remain present and depose that it was drafted as per his instruction and it was also duly signed by him.Only after that formality the cross examination happens. This is a mandatory practice in West Bengal.

Uma parameswaran (lawyer)     03 July 2010

At the time of filing the Proof Affidavit the deponent's presents is must.

cyberlawyer (barrister)     21 July 2010

I agree with devajyoti and uma sirs.... Even if the deponent is an advocate, this procedure is strictly followed...


(Guest)

for the absense of witnesses, without being present in court for the purpose of chief or cross examining, the present of witnesss is compulsory or otherwise proceedd under order 26  for examination under commissioner


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