Affidavits and Exemption from Personal Appearance

In one line

Some facts may be proved on affidavit instead of in the witness box, some persons need never come to court at all, and the Code says exactly who may swear the deponent.

Why the Code has these provisions

Both halves of this chapter exist for the same reason. A trial run entirely on oral evidence, with every party present in person, would be slower than justice can afford and harsher than dignity allows.

So the Code makes two concessions. It lets an interlocutory or uncontroversial matter be proved by a sworn written statement rather than by a witness in the box. And it excuses a defined list of persons from appearing in court, either because their office makes attendance impossible or because compelling their appearance would be an indignity the law does not require.

Neither concession is open-ended, and the limits are where the marks are.

Affidavits: Order XIX

An affidavit is a statement of facts sworn or affirmed before a person authorised to administer the oath. It is written evidence, and Order XIX says when it may be used.

Rule 1, power to order a 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.

The proviso is the safeguard, and it must be given with the rule: where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that the witness can be produced, an order shall not be made authorising his evidence to be given by affidavit.

So the right to cross-examine defeats the convenience of an affidavit. A party cannot be made to accept written evidence on a contested fact when he genuinely wants to test the witness and the witness is available.

Rule 2, attendance of the 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.

Rule 2(2) is the hinge between the two halves of this chapter: a deponent who is exempt under sections 132 or 133 does not have to attend even for cross-examination.

Rule 3, matters to which affidavits are 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 unnecessarily sets 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 it.