Last Updated on June 19, 2021 by Administrator
The Orissa High Court in the case of Thabir Sagar v. State of Odisha has held that the practice of Advocate’s clerks filing affidavits on behalf of parties on original side is unacceptable as it is in gross violation of Rule 26 of the Orissa High Court Rules.
The court observed that an affidavit is an affirmation of truth; a willing declaration made in writing which is signed by a deponent and accompanied by an oath to prove the veracity of its contents.
Therefore, the very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the “best of his knowledge”.
Further it stated that “In all cases arising out of the original jurisdiction of the Court, including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii), the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”
The Bench observed that:
o An affidavit must strictly be restricted to the facts which are true to the knowledge of deponent
o In interlocutory applications, if the deponent chooses to rely on other sources of belief, the details of such person, document, etc. must clearly be stated and explained;
o An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;
o If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and
o Any affidavit not in complete compliance with the provisions shall not be used.
The court directed its Registry to ensure that steps are taken so that the practice of accepting such affidavits by clerks which form part of applications under court’s original jurisdiction be stopped.
By Team SLC