Allahabad High Court
Sajjan Kumar S/O Late Sri Laxmi Narayan ... vs Sri C.L. Verma District Inspector Of ... on 5 October, 2005
Equivalent citations: AIR2006ALL36, [2006(1)JCR431(ALL)], AIR 2006 ALLAHABAD 36, 2006 (1) ALL LJ EE 73, 2006 (1) ALL LJ 73, 2006 (2) AKAR (NOC) 172 (ALL), 2006 A I H C (NOC) 4 (ALL), (2007) 1 ACJ 435, (2005) 4 ACC 643, (2005) 3 PUN LR 461, (2006) 1 JCR 431 (ALL), 2006 (2) ALL CJ 836, (2005) 4 RECCIVR 827, (2006) 37 ALLINDCAS 330 (ALL), (2006) 2 CIVLJ 448, (2006) 1 TAC 1016, 2006 ALL CJ 2 836, (2005) 53 ALLCRIC 913, (2006) 2 ALL WC 1083
Bench: V.M. Sahai, Sabhajeet Yadav
JUDGMENT
V.M. Sahai and Sabhajeet Yadav, JJ.
1. We have heard Sri A.K. Gaur, learned counsel for the applicant and Sri O.P. Tripathi appearing for respondent.
2. Counter and rejoinder affidavits have been exchanged between the parties and the case was ripped for final disposal. A supplementary rejoinder affidavit sworn before a notary has been filed by the applicant in the proceeding in question, on account of which a preliminary objection was raised by learned counsel of opposite party to the effect that an affidavit sworn before a Notary cannot be accepted in proceeding before this Court, therefore, it became necessary to dispose of this question as a preliminary issue first before dealing with the main issue. Thus, a question arises for consideration whether an affidavit sworn before the notary is admissible or can be presented in a proceeding before this Court or not? In this connection learned counsel for opposite party has drawn our attention to the various rules contained in Chapter IV of High Court Rules, which deals with affidavits and Oath Commissioners and submitted that in view of provisions contained in various rules set out in Chapter IV of the High Court Rules, the affidavits sworn before the Oath Commissioners appointed by the Chief Justice of the High court or other persons authorised in this behalf under the aforesaid Chapter alone can be accepted by this court and an affidavit sworn before a Notary cannot be presented/accepted in the proceeding before this court. Contrary' to it learned counsel for the applicant Sri A.K.Gaur, Advocate has submitted that affidavit sworn before a notary is acceptable in proceeding before this court and in support of his contention he has placed reliance upon two reported decision of this Court to be referred hereinafter.
3. Now it is necessary to examine the issue in the light of the rival submissions of the parties. Rule 1 of Chapter IV of the High Court Rules deals with the Appointment of Oath Commissioners who are appointed by the Chief Justice of this Court. Rule 3 pertains to maintenance of register by the Oath Commissioners. Rule 4 provides that each affidavit shall have recorded on it the number and the year of the register in which it is entered and the serial number and date of entry. It shall also have the coupon, as supplied by the Court, affixed to it by the Oath Commissioner. A Proviso has also been appended to it, to the effect that affidavit verified by Oath Commissioners of other states, by an Officer of Jail in the State of Uttar Pradesh, by the Superintendent-cum-Accountant of the office of Official Liquidator, High Court, Allahabad and by the Police Sub-Inspector (M) in the office of the Inspector General of Police at Lucknow on whom powers of Oath Commissioner have been conferred can be presented before the Court without such coupons. Under Rule 9 it is provided that an affidavit shall fully describe the person swearing it with such particulars as will ensure his clear identification such as his full name, his age, the name of his father and place of residence in such a manner as to enable for its identity to be clearly fixed. Rule 10 provides that persons who may make affidavits. Rule 11 provides for form of affidavit. Rule 12 deals with facts to be within the deponent's knowledge or source to be stated. Rule 13 provides for identification of deponent. Rule 15 provides that the contents of the affidavit to be explained to deponent. Rule 17 provides that the person administering an oath or affirmation to the person making an affidavit, shall follow the provisions of the Indian Oaths Act, 1873.
4. Thus from a plain reading of the aforesaid provisions it is clear that under Chapter IV of the rules of the court, the provisions have been made for appointment of Oath Commissioners and swearing of affidavits before them by the persons making affidavits but there is nothing to show that these are sole provisions and have been made in exclusions of or in derogation of other provisions of law governing the swearing of the affidavits. Not only this but contrary to it, the proviso contained in Rule 4 of Chapter IV carves out exception to the general rules where the affidavits verified (i) by the Oath Commissioner's of the other states (ii) by an officer of the jail in State of U.P. (iii) by the Superintendent-cum-Accountant of the Office of the Official Liquidator, High Court, Allahabad and (iv) by the Police Sub-Inspector (M) in the office of the Inspector General of Police at Lucknow on whom powers of oath commissioner have been conferred can be presented before the Court without any coupon affixed to it. These provisions clearly go to show that it is not affidavit verified and sworn before Oath commissioners of High court alone can be presented before this Court rather the affidavit sworn before other persons authorised to verify affidavits and administer oath or affirmation can also be presented before this court.
5. Besides this under Section 139 of Code of Civil Procedure the powers to administer oath on affidavits have been given to certain persons as under :
139. Oath on affidavit by whom to be administered.- In the case of any affidavit under this Code-
(a) any Court or Magistrate, or (aa) any notary appointed under the Notaries Act, 1952 (53 of 1952) or
(b) any officer or other person whom a High Court may appointed in this behalf, or
(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent."
6. Thus from bare reading of the aforesaid provisions it is clear that besides the persons appointed as Oath Commissioners of the High Court or district Courts, any notary appointed under Notaries Act 1952 can also administer an oath on affidavit. At this juncture it is necessary to point out that almost in similar situation a learned Single Judge of this Court has considered the question of admissibility of affidavit sworn before notary in a proceeding under U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in case of Kashi Nath Srivastava v. Mrs. G.S.Tiwari and Ors. 1982 A.L.J. 642. In para 6 and 7 of the decision this Court held as under:
7. It was further contended that any affidavit sworn before a notary could not be taken into consideration because of the provisions of S. 34(6) of the Act which reads as follows :-
(6) Affidavits to be filed in any proceeding under this Act shall be made in the same manner and conform to the same requirements as affidavits filed under the Code of Civil Procedure, 1908, (Act No.V of 1908) and may be verified by any officer or other person appointed by the High court under Clause (b) or by an officer appointed by any other court under Clause (c) of S. 139 of the said Code."
7. Under S. 139, as originally enacted affidavits sworn before a notary were not mentioned, though by a recent amendment a specific provision has been made in regard to affidavits sworn before a notary also. I am not impressed by this argument. Under the Notaries Act, vide S. 8(1 )(e), every notary is authorised to verify affidavits. It seems to me that even prior to the recent amendment of S. 139 C.P.C. an affidavit sworn before a notary would have been admissible in a civil Court and the amendment has been made only by way of abundant caution. Normally, no litigant would need to use an affidavit sworn before a notary which is a more expensive affair than an affidavit sworn before an Oath Commissioner appointed by the District Judge but in exceptional circumstances, for instance, as in the present case, where a party is residing outside the State, it may become necessary to swear an affidavit before an Oath Commissioner. The mere fact that S. 139 has now been amended to make an express provision in this behalf does not lead to the necessary inference that an affidavit sworn before a notary would have been inadmissible in a civil Court earlier. Of course, an affidavit sworn before an Oath Commissioner appointed by the District Judge or by the High Court could not be admissible before any executive authority or before a Tribunal of limited jurisdiction, but the converse did not follow. The Prescribed Authority, the appellate authority and the District Magistrate exercising powers under U.P.Act XIII of 1972 were not civil Courts and as such, in the absence of any express provision in that behalf, an affidavit sworn before an Oath Commissioner appointed by the District Judge or by the High Court could (not) be admissible. Affidavits sworn before notaries could alone be admissible. It costs more to swear an affidavit before a notary. It seems, therefore, that it was for this reason that express provision was made by the Legislature to the effect that an affidavit to be filed in any proceeding under this Act may be verified by an Oath Commissioner appointed by the District Judge or by the High Court. The provision in S. 34(6) was thus merely an enabling provision and it could not shut out an affidavit sworn before a notary which in any case would have been admissible even without any express provision in that behalf. Learned counsel for the petitioner has sought to press into service the general principle that where something is required to be done in a certain manner it should be done only in that manner or not at all and all other modes are necessarily forbidden. This principle is applicable primarily in relation to exercise of statutory powers by public authorities and is more rigidly enforced in cases where power is of a drastic nature. But even in regard to exercise of public powers the rule is not of universal application, vide Charles K. Skaria v. Mathew, , (Para 23). No rule of public policy can be imagined for exclusion of affidavits sworn before notaries from proceedings under this Act. On the contrary, public interest and the interest of the litigants clearly require that whenever a litigant finds it more convenient, he presents an affidavit sworn before a notary instead of an affidavit sworn before an Oath Commissioner. Notaries are responsible officers and are readily available all over the country. It would clearly be unfair and oppressive to the litigants to require them to travel long distances to the seat of the Prescribed Authority merely in order to swear an affidavit before an Oath Commissioner. I am, therefore, of the opinion that the affidavits sworn at New Delhi before any notary were clearly admissible and need not have been excluded.
8. Similar view has also been taken by another learned Single Judge of this Court in Bata India Ltd. v. Addl. District Judge, Gorakhpur and Anr. 1999 (1) AWC 112. We are also in full agreement with the views expressed by the learned Single Judges of this Court in decisions referred herein before and further for another simple reason that the provisions contained in Chapter IV of High Court Rules do not exclude either expressly or by necessary implication the presentation of such affidavits sworn before the Notaries in proceedings before High court which are to be disposed of on the basis of affidavits, therefore, it cannot be held that only those affidavits which are sworn before the Oath Commissioners appointed by the Chief Justice of High Court can be presented and accepted in proceeding before High Court. Thus taking pedantic and technical view in the matter would virtually cause great hardship to the public at large and defeat the very purpose of Notaries Act 1952 and resulting which the provisions of aforesaid Act and Section 139 of C.P.C. would be rendered meaningless. Therefore, we have no hesitation to hold that affidavits sworn before Notaries appointed under Notaries Act, 1952 can be presented before the proceedings in question and cannot be excluded for consideration for the reasons aforestated. In the result the objection raised by the learned counsel of the opposite party is not sustainable and liable to be rejected.
Sri Gaur is allowed two weeks and no more time to file supplementary affidavit.