Whether the petition and the affidavit signed by the Advocate and not by the party is valid ?
A.P. CIVIL RULES OF PRACTICE
- (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’
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- 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.
- (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
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (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.
- (46) Cross examination on affidavit:- The Court may at any time direct that any person shall attend to the cross-examined on his affidavit.
CHAPTER V A-Interlocutory Proceedings;
B-Original Petitions; C-Transfer of Cases A-INTERLOCUTORY PROCEEDINGS
- (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.
- (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.
- (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.
- (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.
- (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.
- (32) Service of Notice:-
- 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.
- Such notice shall be served on the Advocate whenever the party appears by such Advocate.
- 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.
- 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 affidavitand 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.
- (33) Proof of facts by affidavit:-Any fact required to be proved upon an interlocutory proceeding shallunless 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
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.
- 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 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 as PDF
AIR 1985 Ori 108
- ii) Whether the petition under Order 9, Rule 9 of the Code was presented according to law, and
- 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.
- 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.
- 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.