Code of Civil Procedure, 1908 (CPC)
Affidavits and the Administration of Oaths: Sections 138 to 140 with Order XIX
A great deal of civil litigation is decided on affidavits rather than on oral evidence: every interlocutory application, every injunction, every application for leave to defend. Order XIX of the Code of Civil Procedure, 1908 governs when a fact may be proved by affidavit and what an affidavit may contain; Section 139 says who may administer the oath. These notes cover both, together with Section 138 on the recording of evidence in English and Section 140 on assessors, which complete this part of the Code.
The life of an affidavit, and who may administer the oath
1. Order XIX: When a Fact May Be Proved by Affidavit
§ Order XIX Rules 1 and 2 (in substance) Rule 1: 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 authorising the evidence of such witness to be given by affidavit. Rule 2: power to order attendance of deponent for cross-examination. 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. Such attendance shall be in Court, unless the deponent is exempted from personal appearance, or the Court otherwise directs. |
§ Three points • Affidavit evidence is the exception, not the rule, at a trial. Rule 1 requires sufficient reason, and the proviso protects a party who bona fide wants the witness for cross-examination. • On an application it is the ordinary course. Rule 2 begins by saying that upon any application evidence may be given by affidavit, subject to the power to call the deponent. • The right to cross-examine is the safeguard in both. An affidavit that the other side cannot test carries correspondingly less weight, and the court may order attendance at the instance of either party. |
2. Order XIX Rule 3: What an Affidavit May Contain
§ Order XIX Rule 3 (in substance) (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 it. |
§ Why the rule matters in practice • Own knowledge is the standard. An affidavit that states facts the deponent cannot himself prove is objectionable, and an affidavit sworn by a clerk about matters he never saw carries little weight. • Belief is allowed on interlocutory applications, with the grounds. The concession is necessary, since interim relief is often sought before the deponent can verify everything; but the grounds of belief must be stated, so the court can assess it. • Sub-rule (2) is a real sanction. Hearsay, argument and needless extracts from documents are visited with costs, which is the Code's answer to affidavits that are long on assertion and short on fact. • The Commercial Courts Act added rules giving the court greater control over evidence in commercial suits, consistent with the case management scheme in Order XV-A. |
3. Section 139: Who May Administer the Oath
§ Section 139, CPC 1908 (in substance) 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. |
i. Clause (aa) was inserted in 1976, and is the provision under which most affidavits are sworn in practice, before a notary.
ii. An affidavit not sworn before a competent person is defective, though the defect is ordinarily curable by re-swearing rather than fatal to the proceeding.
iii. The section governs affidavits under the Code. Affidavits required by other statutes are governed by those statutes and by the general law relating to oaths.
4. Sections 138 and 140
Section | What it provides | Why it sits here |
|---|---|---|
Section 138 | The High Court may, by notification in the Official Gazette, direct with respect to any Judge specified in the notification, or falling under a description set out in it, that EVIDENCE in cases in which an APPEAL IS ALLOWED shall be taken down by him IN THE ENGLISH LANGUAGE and in the manner prescribed | It completes Section 137(3), which permits English for everything other than the recording of evidence; Section 138 allows the High Court to require English for the evidence too, in appealable cases before designated Judges |
Section 140 | In any cause of SALVAGE, TOWAGE OR COLLISION, the Court, if it thinks fit, may, and shall on the request of either party, summon to its assistance two competent ASSESSORS, who shall attend and assist accordingly | It is the Code's only provision for assessors, and it sits among these miscellaneous sections on how evidence and assistance reach the court |
5. Where Affidavits Are Required Elsewhere in the Code
Provision | The affidavit it requires |
|---|---|
Section 26(2) with Order VI Rule 15(4) | Facts stated in a pleading are to be proved by an affidavit supporting the verification |
Order VI Rule 15A | In a commercial suit, the pleading is verified by a STATEMENT OF TRUTH in place of the ordinary verification |
Order XXXVII Rule 3 | An application for leave to defend a summary suit is supported by an affidavit disclosing the facts the defendant relies on |
Order XXXVIII Rule 5 and Order XXXIX Rule 1 | The court may be satisfied BY AFFIDAVIT for an attachment before judgment or a temporary injunction |
Order XXXIII Rule 1A and Order XLIV | Applications concerning indigent persons, and the next friend's affidavit under Order XXIII Rule 1(2) |
Order XLI Rule 27(2) | An application for additional evidence in appeal, supported on affidavit where required |
6. Landmark Points
- Order XIX Rule 1. A court may order a particular fact to be proved by affidavit for sufficient reason, but not where a party bona fide desires the witness for cross-examination and he can be produced.
- Order XIX Rule 2. On any application evidence may be given by affidavit, and the court may at the instance of either party order the deponent to attend for cross-examination.
- Order XIX Rule 3(1). Affidavits are confined to facts the deponent can prove of his own knowledge, except on interlocutory applications, where belief is admitted if the grounds are stated.
- Order XIX Rule 3(2). The costs of an affidavit that unnecessarily sets out hearsay, argument or extracts from documents fall on the party filing it.
- Section 139. The oath may be administered by a Court or Magistrate, a notary under the Notaries Act, 1952, an officer appointed by a High Court, or an officer appointed by an empowered Court.
- Section 138. The High Court may direct that evidence in appealable cases before specified Judges be taken down in English.
- Section 140. Assessors may be summoned in causes of salvage, towage or collision, and shall be on the request of either party.
7. Frequently Asked Questions
When may a fact be proved by affidavit?
Under Order XIX Rule 1, where the court for sufficient reason so orders. But an order will not be made where it appears that a party bona fide desires the production of the witness for cross-examination and that the witness can be produced.
Can the deponent be cross-examined?
Yes. Under Order XIX Rule 2, where evidence is given by affidavit on an application, the court may at the instance of either party order the attendance of the deponent for cross-examination, in court unless he is exempted from personal appearance or the court otherwise directs.
What may an affidavit contain?
Facts the deponent is able of his own knowledge to prove. On interlocutory applications, statements of his belief may also be admitted, provided the grounds of that belief are stated.
What happens if an affidavit contains hearsay or argument?
Under Order XIX Rule 3(2), the costs of an affidavit that unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing it, unless the court otherwise directs.
Who may administer the oath on an affidavit?
Under Section 139, any court or magistrate, any notary appointed under the Notaries Act, 1952, any officer or other person whom a High Court may appoint in this behalf, or any officer appointed by another court which the State Government has empowered for the purpose.
What does Section 138 deal with?
Not affidavits, but the recording of evidence. It empowers the High Court to direct, by notification, that evidence in cases in which an appeal is allowed shall be taken down in English by the Judges specified, which complements the language provisions in Section 137.
What is Section 140 about?
Assessors. In a cause of salvage, towage or collision the court may, and on the request of either party shall, summon to its assistance two competent assessors, who attend and assist accordingly.
8. Related Topics in This CPC Series
- Order XIX: Affidavits
- Exemptions and Language: Sections 132 to 137
- Pleadings under Order VI: Verification and Amendment
- Order XVIII: Hearing and Examination of Witnesses