Andhra HC (Pre-Telangana)
G. Krimana Murthy vs Hemalatha Chit Funds Pvt. Ltd. And Ors. on 6 April, 2006
Equivalent citations: AIR2006AP398, 2006(4)ALD42, 2006(3)ALT416, AIR 2006 ANDHRA PRADESH 398, 2007 AIHC NOC 121, (2006) 4 ANDHLD 42, (2006) 3 ANDH LT 416
ORDER D.S.R. Varma, J.
1. Despite service of notice, in this Civil Revision Petition, as substitute service, by publishing the notice in 'Eenadi', Telugu Daily Newspaper, Warangal District Edition, under the date-line 3-7-2005, none appears on behalf of Respondent No. 1 and there is no representation on his behalf.
2. Respondent Nos. 2 to 7 are not necessary parties as per the cause-title in the Civil Revision Petition.
3. Heard the learned Counsel appearing for the petitioner.
4. The question that we are called upon to answer in this Civil Revision Petition, as referred by a learned single Judge of this Court, is- "whether an affidavit can be signed by any person, including the Advocate, other than the party to the proceedings"?
5. In this context, it is to be seen that the A.P. Civil Rules of Practice, which were formulated by this Court with the approval of the Governorof Andhra Pradesh, are relevant. Among those Rules, Rules 59, 54 and 48 are relevant in this regard.
6. We may usefully notice Rules 59, 54 and 48 of the A.P. Civil Rules of Practice, which are thus:
Rule-59: (New) Copies to opposite panty:
Every interlocutory application shall be supported by an affidavit and true copies of the application, affidavit and the documents, if any, which the applicant intends to use or on which he intends to rely, shall be furnished to the opposite party or his advocate, unless otherwise ordered, not less than three clear days before the hearing date.
Rule-54: (30) Contents of:
Except where otherwise provided by these rules or by any law for the time being in force, an interlocutory Application shall state the provision of law under which it is made and the order prayed for or relief sought in clear and precise terms. The application shall be signed by the applicant or his Advocate, who shall enter the date on which such signature is made. Every application in contravention of this rule shall be returned for amendment or rejected.
Rule-48: (44) Affidavit on information and belief:
Every affidavit containing statements made on the information or belief of the deponent shall state the source of the information or belief.
7. From a bare perusal of the abovementioned provisions, it is absolutely clear that there is no postulation anywhere to the effect that the affidavit shall be signed only by the person who made the application, but, on the contrary, Rule 54 of the Civil Rules of Practice envisages that an application can be signed either by the applicant or by the Advocate. When an application is permitted to be signed either by the party himself or by the Advocate by necessary implication, the affidavit, which is filed in support of such an application, can also be signed by the party himself or by the Advocate.
8. Rule 48 contemplates that the affidavit containing the statements made on information or belief of the deponent is only enjoined to state such source or ground of information or belief.
9. It is to be noticed from the above provision i.e., Rule 48 of the Civil Rules of Practice that the expression 'deponent' is not defined anywhere in Civil Rules of Practice.
10. Therefore, it can be understood that the 'deponent' may be any person, even other than the Advocate, or the party himself. For e.g., an Advocate's clerk can make statements in the affidavit, provided the source, or ground of information or belief is stated in such application.
11. Truth shall not be allowed to be suppressed by any person who is directly or indirectly connected with the suit proceedings. Therefore, the affidavit can be permitted to be given in the following order of priority-firstly by the party to the proceedings, secondly by the Advocate, and thirdly by the Advocate's Clerk, who will be in a better position than the party himself to furnish such information, or by any person who has knowledge of the facts stated in the affidavit, provided the source of such information is furnished.
12. It is needless to say that the said order of priority may vary from case to case, depending upon the facts and circumstances of each case.
13. In similar circumstances, in Gadiraju Vidyulatha v. India Venkateswarlu , a learned single Judge of this Court (C.Y. Somayajulu, J.) observed as under:
Since Rule 59 of the Rules does not mandate that the application has to be supported by the affidavit of the concerned petitioner and since there is no provision In the Rules which mandates that the applications filed without the affidavit sworn to by the party concerned should not be entertained, the fact that the respondent did not swear the affidavit in support of the application is not of any consequence.
14. The learned single Judge (C.Y. Somayajulu, J.), however, noticed the judgment of another learned single Judge of this Court (R.M. Bapat, J) in Pasupuleti Subba Rao v. Nandavarapu Anjaneyulu , and observed that "the practice of Advocates swearing the affidavits in all types of applications, without rhyme or reason should be deprecated." The said observation was made without deviating from the view expressed by the learned single Judge of this Court (R.M. Bapat, J.) in Pasupuleti Subba Rao's case .
15. Yet, another judgment, in similar circumstances, has been rendered by another learned single Judge of this Court (T.Ch. Surya Rao, J.) in G. Satyanarayana v. M. Shankai .
16. The view expressed by the learned single Judge (T.Ch. Surya Rao, J.) in G. Satyanarayana's case is quite similar to the view expressed by us in the earlier paragraphs.
17. We may usefully notice the observations of the learned single Judge (T.Ch. Surya Rao, J.) while dealing with G. Satyanarayana's case3 (at paragraph No. 11), which run thus:
There is no legal bar in giving the affidavit by the Pleader's clerk himself in support of the petition filed in this case seeking to set aside the ex parte decree. There is no legal bar, as discussed supra, to give the affidavit either by the Counsel or by his clerk or by some third party, on behalf of the party, who is filing the petition. Who should give the affidavit in support of a particular interlocutory application, of course, depends upon the facts peculiar in each case. Therefore the observation of the Court below that the affidavit has not been filed by the party himself and in consequence thereof, the petition should fail, cannot, therefore, legally be sustained....
18. The learned single Judge (T.Ch. Surya Rao, J), however, relied on a decision in Hussaini Begum v. B. Ramachandraiah 1976 (1) An.W.R. 325, wherein it was held thus:
A combined reading of the Rules 59, 54 and 48 of Civil Rules of Practice prescribed by the High Court with the previous approval of the Governor of Andhra Pradesh, shows that the interlocutory application need not necessarily be signed by the party himself. It can either be signed by the party himself or his Counsel. Every interlocutory application shall be accompanied by an affidavit, which affidavit should contain the statement of facts made on information or belief of the deponent and the source or ground of such information or belief. Nowhere, it has been mentioned that the affidavit filed in support of the petition shall be given by the party himself. Anybody, who is conversant with the statement of facts, which are necessary to be furnished for maintaining an interlocutory application can, therefore, give the affidavit.
19. In Pasupuleti Subba Rao's case (2 supra), the learned single Judge (R.M. Bapat, J) observed as under:
The practice of Advocate filing his affidavit in a petition filed under Order 9, Rule 9, CPC is totally wrong and illegal. Such practice has to be deprecated. Order 9, Rule 9 or Order 9, Rule 13, CPC contemplates that the application has to be filed by the party concerned only and not by the counsel. The counsel only is permitted to represent his client: he cannot step into the shoes of a client. Admittedly this order passed by the learned Judge is totally wrong and illegal. But any way this practice is prevalent in the State of Andhra Pradesh. Therefore, as an exception this time the order is sustained. All concerned should note the law laid down by this Court. Under these circumstances only this Court does not wish to interfere with the said order.
20. Nevertheless, another learned single Judge of this Court (T.Ch. Surya Rao, J) in G. Satyanarayana's case (3 supra), observed that an affidavit can be filed by a person, may be, an Advocate or the party himself, in order to explain the laches or lapses on his part.
21. We are of the considered view that the abovementioned observations of the learned single Judge of this Court (R.M. Bapat, J) in Pasupuleti Subba Rao's case (2 supra), are, in fact, not relevant inasmuch the A.P. Civil Rules of Practice, which are referred to above, were not considered. Therefore, the observations made by the learned single Judge of this Court (R.M. Bapat, J) in Pasupuleti Subba Rao's case (2 supra) are of no consequence, since, despite those observations the learned single Judge, as a special case in the particular fact-situation obtaining in that case, eventually accepted the affidavit signed by the Advocate.
22. It is well settled that the procedural laws are handmaid to justice. Technicalities and formalities should not be allowed to defeat the interests and ends of justice. What is required to be done by a Court is to do substantial justice to the parties, that too, on merits, de hors trivial technicalities and formalities.
23. From the above, it is clear that all the interlocutory applicationsneed not necessarily be signed by the party himself or herself and an affidavit can be signed either by the party himself or by an Advocate or anybody, including the clerk of an Advocate, who is conversant with the statement of facts, which are necessary to be furnished for maintaining an interlocutory application.
24. The reference is accordingly answered.