DRAFTING OF PLEADING AND CONVEYANCING
- General Principles of Drafting and Relevant Rules
- Execution Petition
- Memorandum of Appeal and Revision
- Petition under Art. 226 and Art. 32 of the Constitution of India
- Criminal Miscellaneous Petition
- Bail Application
- Memorandum of Appeal and Revision
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
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.
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.