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Supreme Court of India
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Civil Law
Bare Acts
The Code of Civil Procedure, 1908
Order I-XLVI
Section XIX- AFFIDAVITS (THE FIRST SCHEDULE)

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.

STATE AMENDMENTS

Uttar Pradesh.-For the existing proviso, substitute the following:-

"Provided that if it appears to the Court, whether at the instance of either party or otherwise and whether before or after the filing of such affidavit, that the production of such witness for cross-examination is necessary and his attendance can be procured, the Court shall order the attendance of such witness, whereupon the witness may be examined, cross-examined and re-examined.". [U.P. Act (57 of 1976)].

Madhya Pradesh.-Insert the following rule, after rule 1:-

"1-A. Proof of fact by affidavit in certain cases.-

Notwithstanding anything contrary to rule 1, the Court shall, in a suit or proceeding referred to in sub-rule 3-B of Order 1 and whether or not any proceeding under the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 are pending before the Competent Authority appointed under that Act, call upon the parties to prove any particular fact or facts as it may direct, by affidavit, unless the Court looking to the nature and complexity of the suit or proceeding and for reasons to be recorded in writing deems it just and expedient to dispense with the proof of a fact or facts by affidavits.".

[M.P. Act 29 of 1984].

HIGH COURT AMENDMENT

Allahabad.-

In Order XIX, after rule 1, insert the following rule, namely:-

"1A. Power to permit ex parts evidence on affidavit.-Where the case proceeds ex parte the Court may permit the evidence of the plaintiff to be given an affidavit."

[Vide Notification No. 121/IV-K-36 D, dated 10th February, 1981.]
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.
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 hear say or argumentative matter, or copies of or extracts from document, shall (unless the Court otherwise directs) be paid by the party filing the same.

HIGH COURT AMENDMENT

Allahabad.-

In Order XIX, after rule 3, insert the following rules, namely:-

"4. Affidavits shall be entitled in the Court of........ or ........(naming such Court). If the affidavit be in support of, or in opposition to, an application respecting any case in the Court, it shall also be entitled in such case. If there be no such case it shall be entitled In the matter of petition of.

5. Affidavits shall be divided into paragraphs, and every paragraph shall be numbered consecutively and, as may be, shall be confined to a distinct portion of the subject.

[Vide Notification No. 1953/35 (a), dated 22nd May, 1915; Notification No. 572/35 ia)-(2), dated 18th February, 1928.]

6. Every person making any affidavit shall be described therein in such manner as shall serve to identify him clearly; and where necessary for this purpose, it shall contain the full name, the name of his father, of his caste or religious persuation, his rank or degree in life, his profession, calling, occupation or trade, and the true place of his residence.

7. Unless it be otherwise provided, an affidavit may be made by any person having cognizance of the facts deposed to. Two or more persons may join in an affidavit; each shall depose separately to those facts which are within his own knowledge, and such facts shall be stated in separate paragraphs.

8. When the declarant in any affidavit speaks to any fact within his own knowledge, he must do so directly and positively, using the words "I affirm" or "I make oath and say".

9. Except in interlocutory proceedings, affidavits shall strictly be confined to such facts as the declarant is able of his own knowledge to prove. In interlocutory proceedings, 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, "and verily believe it to be true", and shall state the name and address of and sufficiently describe for the purposes of identification, the person or persons from whom he received such information. When the application or the opposition thereto rests on facts disclosed in documents or copies of documents produced from any Court of justice or other source, the declarant shall state what is the source from which they were produced, and his information and belief as to the truth of the facts disclosed in such documents.

10. When any place is referred to in an affidavit, it shall be correctly described. When in an affidavit any person is referred to, such person, the correct name and address of such person, and such further description as may be sufficient for the purpose of the identification of such person, shall be given in the affidavit.

11. Every person making an affidavit for use in a Civil Court shall, if not personally known to the person before whom the affidavit is made, be identified to that person by some one known to him, and the person before whom the affidavit is made shall state at the foot of the affidavit the name, address, and description of him by whom the identification was made as well as the time and place of such identification.

11A. Such identification may be made by a person-

(a) personally acquainted with the person to be identified, or

(b) satisfied, from papers in that person's possession or otherwise, of his identity.

Provided that in case (b) the person so identifying shall sign on the petition or affidavit a declaration in the following form, after there has been affixed to such declaration in his presence the thumb impression of the person so identified:-

FORM

I................ (name, address and description) declare that the person verifying this petition (or making this affidavit) and alleging himself to be A B has satisfied me (here state by what means, e.g., from papers in his possession or otherwise) that he is A B.

12. No verification of a petition and no affidavit purporting to have been made by a pardahnashin woman who has not appeared unveiled before the person before whom the verification or affidavit was made, shall be used unless she has been identified in manner already specified and unless such petition or affidavit be accompanied by an affidavit of identification and such women made at the time by the person who identified her.

13. The person before whom any affidavit is about to be made shall, before the same is made, ask the person proposing to make such affidavit if he has read the affidavit and understands the contents thereof, and if the person proposing to make such affidavit states that he has not read the affidavit or appears not to understand the contents thereof, or appears to be illiterate, the person before whom the affidavit is about to be made shall read and explain, or cause some other competent person to read and explain in his presence, the affidavit to the person proposing to make the same, and when the person before whom the affidavit is about to be made is thus satisfied that the person proposing to make such affidavit understands the contents thereof, the affidavit may be made.

14. The person before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of the affidavit before him and the time and place when and where it was made, and shall for the purpose of identification mark and initial and exhibits referred to in the affidavit.

15. If it be found necessary to correct any clerical error in any affidavit, such correction may be made in the presence of the person before whom the affidavit is about to be made, and before, but not after the affidavit is made. Every correction so made shall be initialled by the person before whom the affidavit is made, and shall be made in such manner, as not to render it impossible or difficult to read the original word or words, figure or figures, in respect of which the correction may have been made."
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