Code of Civil Procedure, 1908 (CPC)
Order XIX CPC: Affidavits, Their Essentials and Evidentiary Value
An affidavit is a written statement of facts, sworn or affirmed before a person authorised to administer oaths. It is the standard vehicle for evidence in interlocutory matters and, since the 2002 amendment, for the examination-in-chief at trial. Order XIX of the Code of Civil Procedure, 1908 governs affidavits: when the court may order a fact to be proved by affidavit, when the deponent may be required for cross-examination, and what an affidavit must contain. These notes cover the Order, the essentials of a valid affidavit, the distinction between personal knowledge and information and belief, and the consequences of a defective affidavit.
1. When a Fact May Be Proved by Affidavit: Rules 1 and 2
§ Order XIX Rules 1 and 2, CPC 1908 Rule 1. 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(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. Rule 2(2). Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs. |
Two situations are covered, and they must be kept apart. Rule 1 concerns proof of facts at the hearing of the suit: the court may order a particular fact to be proved by affidavit for sufficient reason, but the proviso protects the right of cross-examination, so where a party bona fide wants the witness produced and he can be produced, no such order is to be made. Rule 2 concerns evidence upon an application, that is, in interlocutory proceedings, where evidence may be given by affidavit as a matter of course, subject always to the court's power, at either party's instance, to order the deponent's attendance for cross-examination.
§ Affidavits at trial after 2002 Order XIX is not the only source of affidavit evidence. Order XVIII Rule 4(1), as amended in 2002, requires the examination-in-chief of every witness to be on affidavit, with the witness then produced for cross-examination. The two provisions work together: Order XVIII Rule 4 makes the chief examination an affidavit as a matter of course, while Order XIX Rule 1 governs the rarer case where the court dispenses with the witness altogether and allows a fact to be proved by affidavit alone. In both, the right of cross-examination is the controlling safeguard, and an affidavit whose deponent is not tendered for cross-examination when properly required carries little or no weight. |
2. Essentials of a Valid Affidavit
§ What every affidavit must satisfy Drawn from Order XIX Rule 3, the Oaths Act, 1969 and the High Court rules: • A competent deponent. The affidavit must be sworn by a person who is competent to depose to the matters stated, that is, who knows them or can properly state the source of his information. • Sworn or affirmed before an authorised person. Before a court, a magistrate, a notary, an oath commissioner or another officer authorised to administer oaths under the Oaths Act, 1969. • Statements of fact, not argument. An affidavit states facts; it does not contain legal submissions, argument or inference. • First person, divided into paragraphs. Each paragraph confined, so far as possible, to a distinct portion of the subject, and numbered consecutively, as the High Court rules and the practice require. • A verification clause. The affidavit must state which paragraphs are true to the deponent's knowledge and which are stated on information received and believed to be true, with the source of the information disclosed. • Signature and attestation. Signed by the deponent and attested by the person before whom it is sworn, with the date and place. |
3. Personal Knowledge, and Information and Belief: Rule 3
§ Order XIX Rule 3, CPC 1908 (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. |
The rule draws the central distinction of this Order. For proof of facts at the hearing, the affidavit must be confined to what the deponent can prove of his own knowledge: hearsay has no place, because the affidavit stands in for testimony that would have to satisfy the same standard in the witness box. For interlocutory applications, where the court is making a provisional order on incomplete material, statements of belief are admitted, but only on condition that the grounds of the belief are stated, that is, the source of the information is disclosed so that the court can assess its weight. Sub-rule (2) adds a costs sanction for affidavits padded with hearsay, argument or copies of documents.
§ Why the verification clause decides the weight An affidavit that does not distinguish between what is true to knowledge and what is stated on information and belief leaves the court unable to tell which parts are evidence and which are second-hand assertion. The consequence, applied consistently in the case law, is that a general or defective verification deprives the affidavit of evidentiary value, so that no order may safely be founded on it, and interim relief obtained on such an affidavit is liable to be set aside. The point is sharpest where the deponent is an attorney or an officer of a company rather than the party himself: he may swear to what he did and what the records show, but not to matters within the personal knowledge of the party, a principle that connects this Order to Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217. |
4. Cross-Examination of the Deponent
The right to test an affidavit is what keeps it evidence rather than assertion, and the Code protects it in three places. The proviso to Rule 1 forbids an order for proof by affidavit where a party bona fide desires the witness for cross-examination and he can be produced. Rule 2(1) allows the court, on either party's application, to order the attendance of the deponent for cross-examination on an application. And Order XVIII Rule 4(2) requires a witness whose chief examination is on affidavit to be produced for cross-examination. Where a deponent is required and does not appear, the practical consequence is that his affidavit loses its weight: the court may decline to act on untested assertions, particularly where they are contested.
5. Defective Affidavits and Their Consequences
Defect | Consequence |
|---|---|
No verification clause, or a general verification not distinguishing knowledge from information | The affidavit is of little or no evidentiary value; an order should not be founded on it, and interim relief so obtained is liable to be set aside |
Statements on information without disclosing the grounds | Excluded by the proviso to Rule 3(1); the belief cannot be assessed and is disregarded |
Hearsay or argument in an affidavit for the hearing | Not admissible under Rule 3(1), and by Rule 3(2) the costs of such an affidavit are borne by the party filing it |
Deponent not competent to depose to the matters stated | The affidavit cannot prove facts within the personal knowledge of another; the party himself must depose |
Not sworn before a person authorised to administer oaths | The document is not an affidavit at all, and cannot be read as one |
Formal irregularity, such as an unnumbered paragraph or a defect in attestation | Curable: the court may permit the affidavit to be re-sworn or re-filed, since a formal defect does not go to the substance |
§ Substance and form The courts distinguish between a substantive defect, such as an absent or general verification or reliance on undisclosed hearsay, which deprives the affidavit of value, and a formal irregularity, such as a defect in attestation or paragraphing, which the court may allow to be cured. The approach follows the Code's general attitude to procedure: an affidavit is a means of putting facts before the court, and a party should not lose on a technicality that can be repaired. But the requirement that the court be able to tell what is sworn to and on what basis is not a technicality, and is not excused. |
6. Affidavits Elsewhere in the Code
i. Section 26(2) and Order VI Rule 15(4). The facts stated in a pleading must be proved by affidavit, and the person verifying the pleading must furnish an affidavit in support of it; in commercial suits Order VI Rule 15A requires a statement of truth.
ii. Order XVIII Rule 4(1). The examination-in-chief of every witness is on affidavit, with cross-examination before the court or a Commissioner.
iii. Order XI Rules 8 and 12 to 13. Interrogatories are answered on affidavit, and discovery of documents is made by an affidavit of documents in the prescribed form.
iv. Order XXXIX Rule 3 and Order XXXVIII. Applications for temporary injunctions, attachment before judgment and similar interim relief are supported by affidavits, which is where Rule 3(1)'s relaxation for statements of belief chiefly operates.
v. Section 25 and Order XXXVII. An application to the Supreme Court for transfer must be by motion supported by affidavit, and in a summary suit the defendant's application for leave to defend is supported by an affidavit disclosing the facts of his defence.
7. Landmark Points on Order XIX
- Order XIX Rule 1, proviso. No order for proof by affidavit where a party bona fide desires the witness for cross-examination and the witness can be produced.
- Order XIX Rule 2. On an application, evidence may be given by affidavit, but the court may at either party's instance order the deponent's attendance for cross-examination.
- Order XIX Rule 3(1). Affidavits are confined to facts within the deponent's own knowledge, except on interlocutory applications, where statements of belief are admitted only 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 are borne by the party filing it.
- Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217. A power-of-attorney holder may depose only to acts done by him and facts within his knowledge, not to matters personal to the principal, a principle that governs affidavits sworn by attorneys.
8. Frequently Asked Questions on Affidavits
When can a fact be proved by affidavit under Order XIX?
Under Rule 1, the court may for sufficient reason order that a particular fact be proved by affidavit or that a witness's affidavit be read at the hearing. But by the proviso, no such order is to be made where a party bona fide desires the production of the witness for cross-examination and the witness can be produced.
What are the essentials of a valid affidavit?
A competent deponent; swearing or affirmation before a person authorised to administer oaths; statements of fact rather than argument; numbered paragraphs each confined to a distinct portion of the subject; a verification clause distinguishing what is true to knowledge from what is stated on information and belief, with the source disclosed; and signature and attestation.
Can an affidavit contain statements on information and belief?
On interlocutory applications, yes, but only if the grounds of the belief are stated, under the proviso to Order XIX Rule 3(1). For proof of facts at the hearing, an affidavit must be confined to what the deponent can prove of his own knowledge.
Can a deponent be cross-examined on his affidavit?
Yes. Under Order XIX Rule 2(1), on an application the court may at the instance of either party order the attendance of the deponent for cross-examination, and under Order XVIII Rule 4(2) a witness whose chief examination is on affidavit is produced for cross-examination in the suit.
What is the effect of a defective verification in an affidavit?
An affidavit with no verification, or with a general verification that does not distinguish what is true to knowledge from what is stated on information and belief, has little or no evidentiary value, and an order should not be founded on it. A purely formal irregularity may be cured by re-swearing or re-filing.
Can a power-of-attorney holder swear an affidavit for the party?
He may depose to acts done by him under the power and to facts within his personal knowledge, but not to matters within the personal knowledge of the principal, such as the principal's own intention or conduct. Janki Vashdeo Bhojwani states the principle, and it applies to affidavits as to oral evidence.
Where else does the Code require affidavits?
In verification of pleadings under Section 26(2) and Order VI Rule 15(4), with a statement of truth in commercial suits; in examination-in-chief under Order XVIII Rule 4; in answers to interrogatories and the affidavit of documents under Order XI; in support of interim applications under Orders XXXVIII and XXXIX; and in transfer applications under Section 25.
9. Related Topics in This CPC Series
- Order XVIII: Hearing of the Suit and Examination of Witnesses
- Orders XVI and XVI-A: Summoning and Attendance of Witnesses
- Order XI: Discovery, Inspection and Production of Documents
- Pleadings under Order VI: Verification and Amendment