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Who Can File An Affidavit - Vinod Kothari Consultants
Who Can File An Affidavit - Vinod Kothari Consultants
What is an Affidavit?
“Affidavit” is a term used very frequently in the common-parlance; however, the consequences it carries are highly
underestimated. People file affidavits being unaware of what its repercussions might be and also unaware of the fact
whether they are at all competent to make the affidavit. Before analysing who can file an affidavit, it is important to
understand the duty bestowed upon a person providing affidavit. Even before that let us first understand what an
affidavit is.
We shall now look through the different components of the different components of an affidavit:
“Written statement”– an affidavit must be a written one. Oral statements sworn before law do not tantamount to
affidavit. An affidavit may be used as an evidence before law and thus, mustbe written.
“Oath or affirmation”– an oath or affirmation is a solemn promise regarding one’s actions, past, present or future.
“Voluntarily”– the most significant consequence of an affidavit is that it has a binding effect on the person making
such affidavit, and thus, an affidavit must be voluntarily and cautiously made. If any aggrieved person proves that
the affidavit was made as a result of coercion or undue pressure, it shall not be valid.
“Affiant or deponent”- an affiant or a deponent is the person who makes an affidavit under oath.
“Notarised”– lastly, an affidavit must be compulsorily notarised, i.e. the genuinity of the affidavit is to be certified by
a notary public appointed by the state or the central government.
“Every pleading shall be signed by the party and his pleader (if any);
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it
may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.”
In Calico Printers’ Association, Ltd. v. Karim and Brothers ILR 55 Bom 151 : AIR 1930 Bom 566[1], after considering
the Privy Council decision, in Delhi and London Bank v. Oldham, 20 Ind App 139 (PC)[2], it was held that
either Order 29, rule 1, or Order 6, rule 14, can be applied to companies.
Further, even if their lies a defect/ irregularity in the petition/ plaint on grounds of an incompetent signature, it shall be
considered as a “procedural irregularity” and will not vitiate the plaint or the suit, as such defect is curable. Here,
Section 99 of the Civil Procedure Code was applied on the view that there was merely a defect or irregularity after the
suit has been properly instituted.
Thus, in case of corporations, an affidavit shall ideally be signed by a principal officer. However due to applicability of
Order 6, Rule 4, it may also be signed by any authorised representative, if need be.
The question that arises here is whether a false affidavit can be regarded as a false evidence?
Answering the question in the matter of Baban Singh And Anr vs Jagdish Singh & Ors.[3], the Hon’ble Supreme Court
held that “swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made
under an oath. The definition of the offence of giving false evidence, thus, applies to the affidavits.”
Consequences of an affidavit
A deponent must have complete or full knowledge of the facts or statements contained in the affidavit as all of it shall
be personally binding on him/ her. Rule 3 of Order 19 of the Code of Civil Procedure, 1908 states that affidavits shall be
confined to only such facts as the deponent is able, of his own knowledge, to prove. Making false has grave
consequences, which we shall understand with the help of the following illustration:
Example:
Mr. A, in his affidavit, knowingly and voluntarily states that he does not know about the whereabouts of Mr. X on say,
02.09.2018, while, he is fully aware of the same. This shall tantamount to a false affidavit.
Provision of law:
A false affidavit is similar to a false evidence, and, thus, shall have the same repercussions.
“Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to
make a declaration upon any subject, makes a statement which is false, and which he either knows or believes to be
false or does not believe it to be true, is said to give a false affidavit”
Consequences:
Section 193 of the Indian Penal Code, 1860 lays down the punishment for false evidence- whosoever intentionally gives
a false evidence for the purpose of being used in a judicial proceeding, shall be punished with imprisonment which may
extend up to 7 years and shall also be liable for payment of fine.