Calcutta High Court (Appellete Side)
Dumani Hansda vs Life Insurance Corporation Of India And ... on 3 January, 2020
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
03.01.2020
KC(2)
CAN 3440 of 2017
in
M.A.T. 447 of 2017
Dumani Hansda
-versus-
Life Insurance Corporation of India and Ors.
Mr. Lalratan Mondal,
Mr. Prasanta Behari Mahata,
Mr. Dilip Kumar Sadhu................For the appellant/
applicant.
Ms. Soma Roy Chowdhury............For the respondent
nos. 1 to 3.
Mr. Bishwambhar Jha.................For the respondent
no. 4.
Protik Prakash Banerjee, J. :
CAN 3440 of 2017 is an application taken out for stay of operation of the order dated February 23, 2017 passed in W.P. 3530(W) of 2017, which is the subject matter of challenge in the appeal, being M.A.T. 447 of 2017.
It appears from the records that an affidavit of service, sworn on February 13, 2017 by the clerk of the learned advocate-on-record for the petitioner, was filed before the learned Single Judge. We have called for the records of the writ petition and are satisfied that the said purported affidavit of service was actually an affidavit of dispatch since the affidavit on its face only pleaded the communication of the learned advocate and the postal receipts were annexed 2 thereto and marked as Annexure 'X'; however, though the said affidavit was affirmed on February 13, 2017, it has purported to annex as evidence of service documents showing that the items were delivered on February 15, 2017. There has been no re-affirmation nor any leave granted to tag or stitch the said tracking consignment reports to the purported affidavit of service. Therefore, it is clear that an effort was made to mislead the learned Single Judge to allege service and also allege that the service had been duly brought on record, when on the face of the records the same could not have been affirmed on February 13, 2017 and filed.
Accordingly, the stay application appears to be an abuse of process continuing the initial abuse of process before the learned Single Judge, and, therefore, the same is dismissed.
For the aforegoing reasons and since a person who comes to the court in a Letters Patent appeal must show uberima fides, the appeal also stands dismissed.
Even though we had intended to take steps against the learned advocate- on-record of the appellant, Mr. Mahata, learned advocate tenders unqualified apology and promises that it shall never happen again and this was an aberration, which he shall never repeat in his career.
In such view of the matter, we do not wish to take any steps against Mr. Mahata.
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However, we shall fail to discharge our duty if we part with this matter without dealing with the malaise which has crept in into the procedure and which appears to be adopted by recalcitrant litigants.
Since an affidavit of service is nothing more than an affidavit affirmed by the person who actually served the application and notice by post or their soft copies by electronic mail or as attachment to a Whatsapp post, service is established by annexing the evidence of service to the affidavit itself. In case of registered post with acknowledgment due, it is the acknowledgement card; in case of speed post it is the tracking consignment report issued by the Department of Posts, Government of India; if it's an attachment to a Whatsapp Post, the receipt is shown by two 'tick marks' in blue which can be saved as a screenshot and downloaded/printed out. Similarly, electronic mail can be shown to have been sent by printing out the forwarding e-mail from the "Sent" folder, and where "delivered receipt" is granted by the server in the form of a report, by annexing such report after printing it out. All of these amount to evidence of service.
There appears to be no adequate provision in the Appellate Side Rules to ascertain whether the annexures to an affidavit of service or any other affidavit were part of the affidavit as affirmed or subsequently inserted by tampering with an affirmed document. In this connection we feel it apposite to quote Rule 28 of 4 Chapter IV in Part II of the Appellate Side Rules read with Rule 34, which is as follows:
"Rule 28. When the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant shall use the expression "I am informed," and if such be the case, should add "and verily believe it to be true", and he must also state the source from which he received such information. When the statement rests on facts disclosed in documents or copies of documents procured from any Court of Justice or other source, the deponent shall state what is the source from which they were procured, and his information or belief as to the truth of the facts disclosed in such documents. Copies of documents (other than those on the record of the case) to which it is intended that reference should be made at the time of hearing shall be annexed to the affidavit and shall be marked as an exhibit and shall bear the certificate of the Commissioner before whom the affidavit is made.
And Rule 34. (i) No document being an exhibit to an affidavit or verified petition or forming the materials for any application shall be given back unless the document be an original document in which case it may be taken back on an order of the Registrar, a certified copy of the original document being retained in the file.
ii) When any such document is itself a certified copy it shall not be returned:
Provided that the Registrar may, in exceptional cases, and upon an application supported by an affidavit setting out the grounds upon which the return is asked for order the return thereof upon such conditions as he thinks fit.
So far as the admissibility of the tracking consignment reports are concerned, these are independent third party evidence obtained from an official Website of the Department of Posts of the Government of India. These are ordinarily governed by the Second Schedule to the Information Technology Act, 2000 and that of Section 65A & 65B read with Section 3(2) of the Evidence Act, 1872.
Therefore, it can be assumed that the Rules provide for the manner of authenticating an annexure (being the evidence referred to in Rule 28 above, of records to which reference would be made) by way of a certificate of the Commissioner. If there is no such certificate, it is to be presumed that the said 5 evidence was not annexed to the affidavit at the time of its affirmation and filing. This certificate naturally would contain the date on which it was affixed/issued and would also show whether it was part of the original affidavit or not.
However, the difficulty arises where such a certificate is granted and affirmation is made on a date, but the so-called evidence of service shows that it was generated on a date later than the affirmation of the affidavit, but still the said 'evidence' is made a part of the affidavit of service filed in Court or the department. It is not always practicable or desirable that the Court should stop hearing a matter on merits, and spend precious judicial time going through each page of every affidavit of service, including each annexure and comparing the statements made in the body of the affidavit with each of the annexures and their contents, and then comparing the date of affirmation with the most recent date in the annexures to ascertain whether it was a part of the affidavit when it was affirmed, or not.
Thus, it appears that the Rules are not silent, and Rule 28 read with Rule 34 of Part II, Chapter IV of the Appellate Side Rules provide for a manner in which it can be ascertained whether an annexure formed part of the affidavit as affirmed or not, as shall appear from the said Rules as analysed above. However, the said provisions are not adequate or complete and certain matters still require to be clarified and/or added to, for convenience of the Courts in administering justice which require the Registry, the Oath Commissioners (Commissioners of 6 Affidavits), the department or the Court staff to take additional precautions at the time of affirmation and when allowing the filing of the affidavit.
Let a copy of this order be placed before Hon'ble the Chief Justice to consider the desirability of taking steps in the administrative side for effecting an amendment to the Appellate Side Rules, especially Part II Chapter IV thereof, if His Lordship feels it necessary to do so.
So long the Appellate Side Rules are not amended, in exercise of our inherent powers under the Letters Patent to regulate our own procedure, which has been recognised and protected under Article 225 of the Constitution of India, the following practice direction, being the supplemental protocol to the rules of procedure regulating minor procedural matters, are issued.
The Commissioner of Affidavit shall, at the time of affirmation, ascertain the number of pages including the annexures contained in the affidavit and that the learned advocate in whose chamber the affidavit has been prepared has also certified that the affidavit contains the said number of pages and only after ascertaining the same, the Commissioner shall counter-sign and stamp and certify the said number of pages, as certified by the learned advocate, on the last page of the affidavit without which no affidavit shall be received in the department or the Court and shall not be read in Court.
However, for the present these directions will be restricted to affidavits of service only and not to any other affidavits.
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Registrar Administration (L & O.M.) shall circulate this order to the Oath Commissioners for compliance, forthwith.
(PROTIK PRAKASH BANERJEE, J.) (DIPANKAR DATTA, J.)