Affidavit is a written declaration. on oath. A written statement sworn before a person having authority to administer on oath. An affidavit must be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements as to his belief, with the grounds thereof, may be admitted. Affidavits are required for filing in judicial proceedings before courts or in proceedings before other authorities.
Usually the rules of courts of courts or the
rules governing the proceedings before the authorities prescribe the form and
contents of affidavits. Order XIX of the CPC deals with Affidavits in Civil
Courts. Rule 1 empowers the court to order that any particular fact or facts
may be proved by Affidavits Rule 2 provides power to order attendance of
deponent for cross-examination, and Rule 3 sets out the matters to which
Affidavits shall be confined. The Allahabad High Court has added Rule 405 to
order XIX which prescribe in detail the form, the contents and the male of
execution of Affidavits.
Section 139 of CPC prescribes the authorities
who may administer oaths to the deponent of an Affidavit. Section 3 (2) of the
oath Act 1969 provides; Without prejudice to the powers conferred by
sub-sec.(1) or by or under any other law for the time being in force, any court
judge, Magistrate or person may administer oaths and affirmations for the
purpose of Affidavits, if empowered in this behalf: -
a) By the High Court, in respect of
Affidavits, for the purpose of judicial proceedings,
b) By the state Govt. in respect of other Affidavits.
Oath Commissioners for swearing and
Affidavits have been appointed· for all courts from· the amongst advocates and
members of the staff of the court. Affidavits are chargeable with stamp duty
under Act. 4, schedule I, stamp Act. 1899. But no stamp duty is charged on
Affidavits filed or used in courts. Such Affidavits are liable to payment of
court fee prescribed for the various courts. All Affidavits must strictly
conform to the provisions of order XIX, Rule 3, CPC and in the verification it
must be clearly stated as to which portion are being ,sworn on the basis of personal
knowledge and which on the basis if information received and believed to be
true.
In the latter case the sources of information
are not disclosed, the Affidavits is not in accordance with law and such an Affidavit
is inadmissible in evidence. It is very important and material that the
Affidavit should be properly verified otherwise it cannot be treated as
evidence. Affidavit is an important document and, therefore, it should be
prepared very carefully, furnishing of a false affidavit is punishable under
sections 199 and 200 of the Indian penal code.
An Affidavit is sometimes also required to be
filed in support of an application and in that the facts and grounds etc.
should be mentioned in the Affidavit only. But the application must state that
the facts and grounds in support of the application are being given in the
accompanying Affidavit. Affidavit being and important document requires great
care and skill in its drafting. It may be noted in this connecting that various
High Courts have made it rules and Affidavit should be drafted so as to meet
the requirements of those rule following general guidelines should be following
general guidelines should be followed while preparing an Affidavits : -
a) The person making the Affidavit shall be
fully described in an Affidavit in order to establish his identity clearly. For
this purpose, it shall contain the full name, father's name, his professional status,
occupation or trade and complete residential address.
b) An Affidavit should be divided into
paragraphs and numbered consecutively and each paragraph should be confined to
a distinct fact.
c) The declaring when speaks to any fact
within his own knowledge he should use the words "I solemnly affirm"
or "I make oath and say" or that "the deponent solemnly affirm
and states as under".
d) Affidavit should generally be confined to
matters within the personal knowledge of the declarant. If he verifies a fact
on information received he should make a specific mention to this effect and
use the words, "the information received from so and so which I believe it
to be true".
e) Every person making an Affidavit for use
in a civil court shall, if not personally known to the person before whom the Affidavit
is made, be identified to the person by some one known to him and the person
before whom the Affidavit is made state at the foot of the Affidavit the name,
address and descript of the person the person by whom the identification was
made as well as the date, time and place of such identification. Such
identification. Such identification may be made by a person personally
acquainted with the person to be identified or satisfied from papers in that
person's possession or otherwise of his identity.
f) The person before whom Affidavit is bring
made shall, before the same is made, ask the person proposing to make such
Affidavit if he has read the affidavits and understood the contents thereof and
if the person proposing to make such affidavit stats that he has not read the
affidavit or appears not to understood the contents thereof or appears to be
illiterate, the person before whom the Affidavit is being made shall read and
explain, or cause some other competent person to read and explain in his
presence the affidavit to the person proposing to make the same, and when the person
before whom the affidavit is being made is thus satisfied that the person
proposing to make such affidavit understood the contents thereof, the Affidavit
maybe made.
g) The person before whom an Affidavit is
made shall certify at the foot of the Affidavit the fact of the making of the
affidavit before him and the date time and place when and where it was made and
shall for the purpose of identification mark and initial exhibits referred to
in the affidavit.
h) Any clerical error corrected in the
Affidavit shall be initiated by the person before whom the affidavit is made.
i) Amendment in an Affidavit is not
permitted, but a supplementary Affidavit can be filed with the leave of the
court when any error or mistake is intended to be corrected or any addition is
intended to be made.
j) The Affidavit should contain the following
oath or affirmation at the end. "I swear or, solemnly affirm that my this
declaration is true or, that the contents of this Affidavit are time, and that
it conceals nothing material, and that no part of it is false".
Verification:
An Affidavit must be verified to show the
genuiness and authenticity of facts and allegations made therein and also to
make the deponent liable for the allegation. Verification of an Affidavit must
be done in the lines of order XIX, Rule 3 CPC. The verification must
specifically make a mention with reference to the numbered paragraphs of the
Affidavit as to what he verifies of his personal knowledge and what he verifies
upon information received and believed by him to be time. It has been held that
where an averment is not based on personal knowledge, the source of information
should clearly be disclosed.
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