In the legal framework of India, affidavits hold significant importance in both civil and criminal proceedings. An affidavit is a written statement confirmed by oath or affirmation, used as evidence in court. The “evidence by way of affidavit” plays a crucial role in legal proceedings, especially under the Civil Procedure Code (CPC), 1908, where it is frequently employed in civil cases to present facts before the court. This article explores the concept of affidavit evidence, its legal standing, and its usage in court proceedings, particularly under Indian law.
Table of Contents
What is Evidence by Way of Affidavit?
An affidavit is a voluntary statement made under oath or affirmation, signed by the deponent (the person making the affidavit) before a magistrate or an officer authorized to administer oaths. The statement must be made with honesty, as it carries legal obligations. Affidavit evidence is often used to support petitions, applications, or motions in court.
In civil proceedings, especially in interlocutory matters, the court permits parties to file their affidavit in CPC to submit evidence. This affidavit is sworn under oath, containing all material facts that support the party’s case.
Affidavit Under the Civil Procedure Code (CPC)
The concept of an affidavit in Indian law is governed by Order XIX of the Code of Civil Procedure (CPC), 1908. Under this order, the court may permit evidence to be given by affidavit in interlocutory applications. This is a quicker method compared to oral testimony, allowing the court to expedite proceedings. Some key provisions under Order XIX include:
- Order XIX Rule 1 CPC: It allows a party to any civil suit to present evidence by affidavit, subject to the court’s discretion.
- Order XIX Rule 2 CPC: It empowers the court to order the attendance of the deponent for cross-examination if necessary.
These provisions make affidavits a crucial tool for civil litigation, especially in matters requiring immediate or temporary relief.
Is an Affidavit Considered as Evidence?
A common question that arises is, “why affidavit is not evidence?” The answer lies in a critical distinction made by the law: while an affidavit is a written statement on oath, it is not considered substantive evidence by itself unless the deponent is subject to cross-examination.
According to the Indian Evidence Act, 1872, affidavits are not treated as formal evidence in most cases, particularly in trials. Section 3 of the Evidence Act defines evidence as all statements made by witnesses in court (or affidavits under exceptional circumstances), but for an affidavit to be accepted as evidence, the court usually requires the deponent to appear for cross-examination.
In the case of Khandesh Spg. & Wvg. Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh (1960), the Supreme Court of India ruled that affidavits cannot be treated as substantive evidence unless specifically provided for by law. Therefore, affidavits generally serve as documentary evidence in interlocutory applications or proceedings, where quick resolution is necessary.
Affidavit of Examination-in-Chief
In civil and criminal trials, the examination-in-chief refers to the primary questioning of a witness by the party who called them. With changes in procedural laws, especially under the CPC, affidavits of examination-in-chief are now often submitted in writing, replacing oral testimony.
An affidavit of examination-in-chief format usually includes the following elements:
- Introduction of the witness: Stating the identity, occupation, and relationship with the parties.
- Statements of facts: A chronological narration of the facts relevant to the case.
- Verification clause: The deponent affirms the truthfulness of the affidavit.
- Oath or affirmation: It must be sworn before a judicial officer or magistrate.
This affidavit allows the witness to state their version of facts directly. However, the opposing party has the right to cross-examine the deponent, as affidavits are only accepted as evidence when tested in court. Failure to cross-examine may result in the affidavit being accepted as evidence.
Proof Affidavit
A proof affidavit is another form of affidavit used in civil cases where the deponent submits facts supporting their case. It is different from an affidavit of examination-in-chief in that a proof affidavit is often filed after the completion of pleadings, summarizing the factual evidence in support of the party’s claims.
In such cases, the affidavit must align with the pleadings (written statements submitted to the court), ensuring that it does not introduce new facts that are not already part of the litigation.
Why Affidavit is Not Treated as Substantive Evidence?
The Indian Evidence Act, 1872 does not recognize affidavits as substantive evidence, except under specific circumstances. This is because:
- Absence of cross-examination: The other party does not get the opportunity to challenge the statements in the affidavit unless the deponent is present for cross-examination.
- Hearsay rule: Since affidavits are written statements, they may contain hearsay information, which is not permissible as evidence.
- Veracity of the statements: Affidavits are usually prepared by the legal counsel, and the court requires the deponent to affirm these statements through cross-examination to test their truthfulness.
In cases where affidavits are permitted as evidence, they must be corroborated with other forms of evidence, or the deponent must be available for questioning by the opposing party.
Importance of Affidavit Evidence in Summary Procedures
Though affidavits are not regarded as substantive evidence during trials, they play a vital role in summary procedures or applications for interim relief. Courts allow affidavits to present documentary evidence in cases such as:
- Injunctions
- Temporary restraining orders
- Summary judgments
For instance, if a party files for an interim injunction to prevent the opposing party from taking certain actions, the affidavit serves as primary evidence for the grant of such relief.
Key Court Rulings on Affidavits as Evidence
Several rulings from Indian courts highlight the significance and limitations of affidavits in legal proceedings:
- Smt. Sudha Devi v. M.P. Narayanan (1988): The Supreme Court ruled that an affidavit is not “evidence” within the meaning of Section 3 of the Indian Evidence Act. It can be used as evidence only if the law allows it, and it must be corroborated by other evidence.
- A. Sanjeevi Naidu v. State of Madras (1970): The court emphasized that affidavits can only be used in interlocutory applications and cannot replace oral evidence.
- M. Veerbhadra Rao v. Tek Chand (1984): In this case, the court ruled that affidavits cannot be considered as evidence unless the deponent is available for cross-examination.
Affidavit Evidence: Practical Considerations
When drafting an affidavit, particularly for court proceedings, the following points must be considered:
- Truthfulness: Every statement in the affidavit must be true and made in good faith. False statements made under oath may attract penalties for perjury.
- Relevant facts: Only facts relevant to the case should be included. Unrelated or hearsay information should be avoided.
- Legal guidance: It is essential to consult legal professionals when preparing an affidavit. Kanoon360, for instance, offers expert legal consultations to ensure that your affidavit meets all legal requirements and stands up to scrutiny in court.
Conclusion
While affidavit evidence plays an essential role in many legal proceedings, it is critical to understand its limitations. Affidavits, although valuable for interlocutory relief and summary procedures, cannot be treated as substantive evidence in trials unless the deponent is available for cross-examination. Affidavit in CPC, as governed by Order XIX, remains a useful tool, especially for presenting proof affidavit and affidavit of examination-in-chief.
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Legal professionals, such as those at Kanoon360, can provide essential guidance in preparing affidavits and presenting evidence in court. With the right legal support, affidavits can serve as a powerful tool in advancing your case efficiently and effectively.
Citations:
- Code of Civil Procedure, 1908.
- Indian Evidence Act, 1872.
- Khandesh Spg. & Wvg. Mills Co. Ltd. v. Rashtriya Girni Kamgar Sangh, AIR 1960 SC 571.
- Smt. Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381.
- M. Veerbhadra Rao v. Tek Chand, AIR 1984 SC 119.
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