Affidavits and Exemption from Personal Appearance

Rule 3(1) is the rule to state first in any answer: personal knowledge is the standard, belief is the exception, and belief is admissible only on an interlocutory application and only if the grounds are stated. Rule 3(2) supplies the sanction, and it is a real one: a bloated, argumentative affidavit costs the party who filed it.

Affidavit evidence appears throughout the Code, and the cross-references are worth collecting: an application for attachment before judgment and for a temporary injunction is supported by affidavit; Order XI Rule 12 allows an application for discovery without any affidavit, which is the exception that proves the rule; Order XLI Rule 3A requires an application to condone delay in an appeal to be supported by affidavit; and Order XXI Rule 46A(2) requires the application for a garnishee notice to be on affidavit verifying the facts alleged.

Who may administer the oath: section 139

This is a short section that has been asked directly, so learn the list.

Section 139: in the case of any affidavit under this Code:

(a) any Court or Magistrate, or (aa) any notary appointed under the Notaries Act 1952, or (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf,

may administer the oath to the deponent.

Clause (aa) was inserted later and it is the answer MU is looking for when the question is put as "apart from Courts and Magistrates, who may administer the oath": a notary, a person appointed by a High Court, and an officer appointed by a court empowered by the State Government.

Exemption of certain women: section 132

Section 132(1): women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

Section 132(2): nothing in the section exempts such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by the Code.

Read sub-section (2) with section 56, which forbids the arrest or detention of a woman in the civil prison in execution of a decree for the payment of money. See [Arrest and Detention in Execution]. So the position is: exemption from appearance under section 132(1), and a separate and narrower protection from arrest under section 56.

Exemption of other persons: section 133

Section 133(1): the following persons shall be entitled to exemption from personal appearance in Court:

(i) the President of India (ii) the Vice-President of India (iii) the Speaker of the House of the People (iv) the Ministers of the Union (v) the Judges of the Supreme Court (vi) the Governors of States and the administrators of Union territories (vii) the Speakers of the State Legislative Assemblies (viii) the Chairman of the State Legislative Councils (ix) the Ministers of States (x) the Judges of the High Courts, and (xi) the persons to whom section 87B applies

A question asking to "enumerate any two classes" wants two of these, named exactly. The safest pair is the President and Vice-President, or the Judges of the Supreme Court and of the High Courts.

Section 133(3) is the sting, and it is regularly missed: where a person claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays those costs.

So the exemption is from attending, not from giving evidence. The exempt person is examined on commission instead, and if he claims the privilege he pays for the commission himself. See [Commissions], where Order XXVI Rule 1 provides for the examination of a person exempted under the Code from attending Court.

Appearance in person generally: section 30

The background rule is section 30, which gives the Court power, subject to such conditions and limitations as may be prescribed, to make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; to issue summonses to persons whose attendance is required either to give evidence or to produce documents; and to order any fact to be proved by affidavit.

Two things in that section belong to other chapters and are noted here only so the section is not misread: the impounding limb is worked out in [Examination of Parties, Interrogatories, Discovery, Inspection and Admissions] with Order XIII Rule 8, and the summonses to witnesses limb in [Trial, Witnesses and Evidence] with Order XVI.

A worked example

A suit is pending, and an interlocutory application for a temporary injunction is to be heard.

Can the applicant prove his facts by affidavit? Order XIX Rule 1: the Court may, for sufficient reason, order that particular facts be proved by affidavit, on such conditions as it thinks reasonable.

May the affidavit state what he believes rather than what he knows? On an interlocutory application, yes. Rule 3(1): affidavits are confined to facts the deponent can prove of his own knowledge, except on interlocutory applications, where statements of belief are admissible provided the grounds are stated.

The affidavit runs to forty pages of argument and extracts from documents. Rule 3(2): the costs of an affidavit that unnecessarily sets forth hearsay, argumentative matter, or copies of or extracts from documents are paid by the party filing it, unless the Court otherwise directs.

The other side wants to cross-examine the deponent. Rule 2(1): the Court may, at the instance of either party, order his attendance for cross-examination. If the fact were being proved by affidavit at the hearing rather than on an application, the proviso to Rule 1 would prevent the order in the first place, where a party bona fide wants the witness and the witness can be produced.

Who swears him? Section 139: a Court or Magistrate, a notary under the Notaries Act 1952, an officer or person appointed by a High Court, or an officer appointed by a court empowered by the State Government.

The deponent is a Judge of the High Court. Section 133(1)(x): he is entitled to exemption from personal appearance, and by Rule 2(2) his attendance for cross-examination is not required in Court.

How is his evidence taken, then? By commission, and section 133(3) makes him pay the costs of the commission if he claims the privilege, unless the party requiring his evidence pays them.

The witness is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public. Section 132(1): she is exempt from personal appearance. But section 132(2): that does not exempt her from arrest in execution of civil process where the Code does not prohibit it, and the separate protection against arrest for a money decree is section 56.

What it does not mean

An affidavit is not a substitute for a contested witness. The proviso to Order XIX Rule 1 protects the right to cross-examine.

Belief is not generally admissible. Only on interlocutory applications, and only with the grounds stated.

A long affidavit is not free. Rule 3(2) puts its costs on the party who filed it.

Only a Court or Magistrate may not administer the oath. Section 139 adds notaries and appointed officers.

Exemption from appearance is not exemption from giving evidence. The exempt person is examined on commission, and under section 133(3) usually pays for it.

Exemption from appearance is not exemption from arrest. Section 132(2) says so for women; the arrest exemptions are sections 56, 135 and 135A.

Quick revision

Order XIX Rule 1: the Court may for sufficient reason order a fact to be proved by affidavit, or an affidavit to be read at the hearing; proviso, not where a party bona fide desires the witness for cross-examination and he can be produced. Rule 2: on any application evidence may be by affidavit, but the Court may order the deponent's attendance for cross-examination, in Court unless he is exempt from personal appearance. Rule 3: affidavits confined to facts within the deponent's own knowledge, except on interlocutory applications where belief is admissible if the grounds are stated; the costs of an affidavit full of hearsay, argument or extracts fall on the party filing it.

Section 139: the oath may be administered by any Court or Magistrate, any notary under the Notaries Act 1952, any officer or person appointed by a High Court, or any officer appointed by a court empowered by the State Government.

Section 132: women who by the customs and manners of the country ought not to be compelled to appear in public are exempt from personal appearance; but not from arrest in execution of civil process where the Code does not prohibit it.

Section 133(1): exemption from personal appearance for the President, Vice-President, Speaker of the House of the People, Ministers of the Union, Judges of the Supreme Court, Governors of States and administrators of Union territories, Speakers of State Legislative Assemblies, Chairmen of State Legislative Councils, Ministers of States, Judges of the High Courts, and persons to whom section 87B applies. Section 133(3): one who claims the privilege and must therefore be examined by commission pays the costs of the commission, unless the party requiring his evidence pays them.

Test yourself

1. When may a Court order a fact to be proved by affidavit? Under Order XIX Rule 1, at any time for sufficient reason, on such conditions as the Court thinks reasonable; but not where it appears that either party bona fide desires the production of the witness for cross-examination and that the witness can be produced.

2. To what must an affidavit be confined? Under Order XIX Rule 3(1) 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 the grounds of the belief are stated.

3. What is the consequence of an affidavit containing hearsay or argument? Under Order XIX Rule 3(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.

4. Apart from Courts and Magistrates, who may administer the oath on an affidavit? Under section 139, any notary appointed under the Notaries Act 1952; any officer or other person whom a High Court may appoint in this behalf; and any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf.

5. Enumerate any two classes of persons entitled to exemption from personal appearance in Court. Under section 133(1), the President of India and the Vice-President of India. The list also includes the Speaker of the House of the People, the Ministers of the Union, the Judges of the Supreme Court, the Governors of States and administrators of Union territories, the Speakers of the State Legislative Assemblies, the Chairmen of the State Legislative Councils, the Ministers of States, the Judges of the High Courts, and persons to whom section 87B applies.

6. Are women exempt from personal appearance? Under section 132(1) women who, according to the customs and manners of the country, ought not to be compelled to appear in public are exempt from personal appearance in Court. By section 132(2) that does not exempt them from arrest in execution of civil process in any case in which the arrest of women is not prohibited by the Code, and the separate protection is section 56, which forbids the arrest or detention of a woman in execution of a decree for the payment of money.

7. Does an exempt person escape giving evidence, and who pays for taking it? No. He is examined by commission instead. Under section 133(3), where a person claims the privilege of exemption and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays those costs.