Whether the petition and the
affidavit signed by the Advocate and not by the party is valid. ?
A.P. CIVIL RULES OF PRACTICE
CHAPTER-IV Affidavits
34. (New) Interpretation of words:- The word ‘affidavit’ in
this chapter shall include any document required to be sworn and the words
‘swear’ and sworn’; shall include ‘affirm’ and affirmed’
35. (37) Form:- Every affidavit shall be drawn up in the
first person and divided into paragraphs numbered consecutively and each
paragraph as nearly as may b e, shall be confined to a district portion of the
subject. Every affidavit shall be written or typed or printed and stitched book
wise. The deponent shall sign at the foot of each page of the affidavit. Note:-
For forms of Oath and affirmation refer the Scheduled to the Indian Oaths Act
1969.
36. (38) Description of deponent:- Every affidavit shall be
affidavit shall subscribe his full name, the name of his father age, place of
residence and his trade or occupation.
37. (New) Title of affidavits:- Every person making an
affidavit shall subscribe his full name, the name of his father, his age, place
of residence and his trade or occupation.
38. (34) Before whom may be shorn:- Affidavits intended for
use in Judicial proceedings may be sworn before any court or Magistrate or a “
Member of Nyaya Panchayat constituted under the A.P. Gram Panchayats Act, 1964,
or a Sub-registrar, Nazir, or Deputy Nazir or a member of the State Legislature
or a *Member of Parliament, or a Municipal Councilor or a Member of Zilla
Parishad or any Gazetted officer in the service of the State Government or the
Union Government or a Notary as defined in the Notaries Act, 1952, or a retired
Gazetted Officer receiving pension from Government or a commissioned Military
officer or a Advocate other than the Advocate who has been engaged in such
proceeding or any Superintendent in the Office of the Commissioner for the
Andhra Pradesh Hindu Religious institutions and charitable Endowments.
39. (40) Statement of Officer before whom affidavit is
sworn:- The officer before whom an affidavit is sworn or affirmed shall state
the date on which, and the place where, the same is sworn or a affirmed and
sign his name and description at the end as in Form No. 14 ; otherwise the same
shall not be filed or read in any matter without the leave of the court.
40. (39) Interlineations, alteration, etc:- No affidavit
having in the Jurat or body there of any interlineations, alteration or erasure
shall, without the leave of the court, be read or filed or made use, of unless
the interlineations or alteration (other than by erasure) is authenticated by
the initials of the officer taking the affidavit, nor in the case of an erasure
unless the words or figures, appearing at the time of taking the affidavit to
be written on the erasure, are rewritten and initialed in the margin of the
affidavit by the officer taking it.
1. Newly inserted An officer may refuse to take an affidavit
where, in his opinion, the interlineations or alterations, or erasures are so
numerous as to render in necessary that the affidavit should be rewritten.
41. (New) Deponent to be identified:- Every person making an
affidavit for use in the court shall if not personally known to the person
before whom the affidavit is made, be identified by some one known to him, and
the person before whom the affidavit is made shall state at the foot of the
affidavits, the name, address, and description of the person by whom the
identification was made
42. (New) Identification of a Purdanashin woman deponent:-
Where the deponent is purdanashin woman and has not appeared unveiled before
whom the affidavit is made, she shall be identified by a person known to him
and 9 such person shall the foot of the affidavit certify that the deponent was
identified by him and shall sign his name giving his name and address.
43. (41) Blind or illiterate deponent:- When an affidavit is
sworn or a affirmed by any persons who appears to the officer taking the
affidavit to be illiterate, blind, or unacquainted with the language in which
the affidavit is written the officer shall certify that the affidavit was read,
translated or explained in his presence to the deponent, and that the deponent
seemed to understand it and made his signature or mark in the presence of the
officer, as in Form No. 15 otherwise the affidavit shall not be used in
evidence: Provided that where the deponent, due to physical deformity or any
other cause, is unable to sign or affix his mark on the affidavit, such
affidavit may be received in evidence, if the officer before whom the affidavit
is subscribed certifies, that the contents of the affidavit were read over and
explained to the deponent and admitted by him to be correct.
44. (35) Filing:- Before any affidavit is used it shall be
filed in court but the Judge may, with the consent of both parties, or in case
of urgency, allow any affidavit to be presented to the court and read on the
hearing of an application.
45. (36) Notice of filing:- The Party filing an affidavit
intended to be read in support of an application shall give not less than two
days notice thereof to the other parties, who shall be entitled to inspect and
obtain copies of the same, and to file counter-affidavits and shall give notice
thereof to the applicant, who may inspect and obtain copies of the same; and
file affidavits in reply but except with the leave of the court no further
affidavit shall be filed or read. If any party fails to give notice of filing
an affidavit the court may grant an adjournment of the hearing and order the
party in default to pay the costs thereof.
46. (42) Affidavits not to be filed without proper
endorsement:- No affidavit shall be filed in the court unless properly endorse
with the number and title of the suit or matter, the name of the deponent, the
date on which it is sworn and by whom and on whose behalf it is filed.
47. (New) Description of the person or place:- When in an
affidavit any person is referred to, the correct name and address of such
person and further description as may be sufficient for the purpose of the
identification of such person, shall be given in the affidavit. When any place
is referred to in an affidavit, it shall be correctly described.
48. (44) Affidavit on information and belief:- Every
affidavit containing statements made on the information or belief of the
deponent shall state the source or ground of the information or belief.
49. (43) Affidavit stating matter of opinion:- Every
Affidavit stating any matter of opinion shall show the qualification of the
deponent to express such opinion, by reference to the length of experience,
acquaintance with the person or matter as to which the opinion is expressed, or
other means of knowledge of the deponent.
50. (New) Striking out scandalous matter:- The Court may suo
motu, or on application order to be struck out from any affidavit any matter
with which is scandalous and may order payment of costs of the application, if
any filed for that purpose.
51. (45) Documents referred to in affidavit:- Document
referred to by affidavit shall be referred to as exhibits and shall be marked
in the same manner as exhibits admitted by the court and shall bear the
certificate in Form No. 16 which shall be signed by the officer before whom the
affidavit is taken.
52. (46) Cross examination on affidavit:- The Court may at
any time direct that any person shall attend to the cross-examined on his
affidavit.
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CHAPTER V A-Interlocutory Proceedings;
B-Original Petitions; C-Transfer of Cases A-INTERLOCUTORY
PROCEEDINGS
53. (29) Form of Interlocutory Application:-
Interlocutory applications shall be headed with the cause title of the plaint,
original petition, or appeal, as in Form No. 13.
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.
55. (30) Contents of :- There shall be separate application
in respect of each distinct relief prayed for. When several relief’s are
combined in one application, the court may direct the applicant to confine the
application only to one of such relief’s unless the relief’s are consequential
and to file a separate application in respect of each of the others.
56. (31) May rejected if substantive order is not asked
for:- Every application which does not pray for a substantive order but prays
merely, that any other application may be dismissed, and every application
which prays for an order which ought to be applied for on the day fixed for the
hearing of any suit, appeal or matter, may be rejected with costs.
57. (New) Out of order petition:- Whenever it is intended to
move the application as an urgent (out) of order) application, the copy of the
application served on the Advocate or the party appearing ion person shall
contain an urgent application on the day specified in the endorsement.
58. (32) Service of Notice:-
1. Unless the court otherwise orders, notice of an
interlocutory application shall be given to the other parties to the suit or
matter or their Advocate not less than three days before the day appointed for
the hearing of the application.
2. Such notice shall be served on the Advocate whenever the
party appears by such Advocate.
3. Notice of the application may be served on a party not
appearing by Advocate by registered post “ACKNOWLEDGEMENT DUE, OR BY SPEED POST
OR BY AN APPROVED COURIER SERVICE OR BY FAX MASSAGE OR BY ELECTRONIC MALE
SERVICE OR BY SUCH MEANS” to the address given in the pleading acknowledgement
per-paid and in the event of its non- service on the party by means of summons
to be delivered to the party or in the event of the party being absent or refusing
to receive the same, affixture at his address.
4. Unless the court, otherwise orders, notice of
Interlocutory application need not be given to a party, who having been served
with the notice in the main suit, appeal or other proceedings, has not entered
appearance or to a party to whom notice in the appeal has been dispensed with
under the provisions of Rule 14 of Order XLI of the Code
59. (New) Copies to opposite party:- 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.
60. (33) Proof of facts by affidavit:- Any fact required
to be proved upon an interlocutory proceeding shall unless otherwise
provided by these, rules, or ordered by the court, be provided by affidavit
but the Judge may, in any case, direct evidence to be given orally, and
thereupon the
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evidence shall be recorded, and exhibits marked, in the same
manner as in a suit and lists of the witnesses and exhibits shall be prepared
and annexed to the judgment.
Or.19 - Affidavits
Power to order any point to be proved by affidavit
Any Court may at any time for sufficient reason order
that any particular fact or facts may be proved by affidavit, or that
the affidavit of any witness may be read at the hearing, on such conditions
as the Court thinks reasonable :
Provided that where it appears to the Court that either
party bona fide desires the production of a witness for cross-examination, and
that such witness can be produced, an order shall not be made authorizing the
evidence of such witness to be given by affidavit.
2. Power to order attendance of deponent for
cross-examination
(1) Upon any application evidence may be given by
affidavit, but the Court may, at the instance of either party, order the
attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the
deponent is exempted from personal appearance in Court or the Court otherwise
directs.
3. Matters to which affidavits shall be confined
(1) Affidavits shall be confined to such facts as the
deponent is able of his own knowledge to prove, except on interlocutory
applications, on which statements of his belief may be admitted : Provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall
unnecessarily set forth matters of hearsay or argumentative matter, or copies
of or extracts from documents, shall (unless the Court otherwise directs) be
paid by the party filing the same.
List
Judgments citing this section Download
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AIR 1985 Ori 108
3. ii) Whether the petition
under Order 9, Rule 9 of the Code was presented according to law, and
5. The second point is
technical in nature.The petition under Order 9, Rule 9 of the Code was not
signed bv the petitioner, but by her son Debi Prasad, who appended a
verification thereto stating that he was looking after the suit on behalf of
his mother.
6. The petition under Order 9, Rule 9 was signed by the
petitioner's Advocate Mr. B. Das. Mr. L. Rath, learned counsel appearing for
the petitioner, contended that in the facts and circumstances of the case the
petition signed by the petitioner's Advocate Mr. B. Das was presented in Court
according to law. There being no technical defect as pointed out by the Courts
below, the petition for restoration could not be thrown out on the ground of
mere technicality. If there be any defect in presentation of the petition, it
was a mere irregularity, but not totally illegal.
According to Order 4, Rule 1, a suit is instituted by presenting a
plaint to the Court. Every plaint shall comply with the rules contained in
Orders 6 and 7. According to Order 6, Rule 14, a plaint is required to be
signed by the party and his pleader. There is no such equivalent provision in
Order 9, Rule 9. In other words, a petition for restoration under Order 9, Rule
9 is not required to be signed by the petitioner. It is also not required to be
verified by the party as a plaint is required to be verified under Order 6,
Rule 15.
According to Order 3, Rule 4 of the Code, no pleader shall act for
any person in any Court unless he has been appointed for the purpose by such
person by a document in writing signed by such person or by his recognised
agent or by some other person duly authorised by or under a power-of-attorney
to make such appointment. In this case as already referred to above the
petitioner appointed Mr. B. Das, Advocate of Aska to act on her behalf in the
suit and proceedings arising therefrom within the meaning of Order 3. Rule 4.
In accordance with such authority, Mr. B. Das acted in the proceeding by
signing and presenting the petition for restoration. He did so for the benefit
of and in order to protect the interest of the petitioner. No objection could
be taken to such a petition for presentation of which the petitioner had
implied consent. The aforesaid view is supported by authorities. In a Full
Bench decision reported in AIR 1968 Ker 213, Chengan Souri Nayakam v. A. N. Menon,
it was held that an Advocate in India has inherent authority to enter into a
compromise on behalf of his client and the compromise so entered into would be
binding on him. The implied authority is an actual authority and not an
appendage to his office or dignity added by the Court to the status of the
Advocate. Therefore, even though the vakalatnama did not expressly authorise a
counsel to compromise the suit or confess judgment, if the Court was satisfied
that there was no express prohibition in doing so, it had to assume that
counsel had implied authority to compromise an action or confess judgment. This
was the view taken in an extreme case. An identical view appears to have been
taken is two decisions of the Supreme Court reported in AIR 1975 SC 1632, Employers
in relation to Monoharbahal Colliery Calcutta v. K. N. Mishra and AIR 1975 SC
2202, Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand. If by
virtue of a vakalatnama without having any special authority an Advocate could
compromise a cause and admit the same in Court on behalf of the party he
represents, I see no reason why an Advocate in whose favour a vakalatnama has
been duly executed in accordance with rules prescribed by the High Court cannot
act and present a petition under Order 9, Rule 9 of the Code duly signed by him
on behalf of the party he represents.
7. In view of the above and in disagreement with the Courts below,
I hold that Mr. B. Das. Advocate for the petitioner was authorised to act on
her behalf in the suit and the proceedings arising therefrom. Therefore, the
petition under Order 9, Rule 9 signed and presented by him cannot be said as
being not in accordance with law.
