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1991 DIGILAW 119 (GAU)

Pannalal Ganguly v. State of Tripura and others

1991-06-13

M.SHARMA, MANISANA

body1991
Judgement In the course of the hearing of the writ petition, Mr. Bhattacharjee, learned counsel for the petitioner, argued that the two affidavits, namely, one bearing tender No. 8389/4 to oppose the writ petition and the other bearing No. 8387/2 which is a counter to the rejoinder filed by the peti-tioner, filed on 25-5-91 on behalf of respon-dents 1, 2 and 5 are to be rejected for lack of proper verification. The writ petition was heard at some length. On 11-6-91, the day to which the hearing of the writ petition was adjourned, Shri G. C. Chakraborty, learned counsel for the respondents 1, 2 and 5, prayed that he may be allowed to file an application for leave to re-verify the two affidavits. The prayer was allowed. Accordingly, a petition was filed alongwith two proposed supplemen-tary affidavits with an alternative prayer to allow them to file fresh affidavits. 2. Paragraph 26 of the affidavit bearing tender No. 8389/4 runs : "26. That the statements made in this counter-affidavit in paras - 1 and 2 - are true to my knowledge, those made in paras 3, 6 and 7 to 25 are true to my belief and those made in paras 4 and 5 are matters of records which, I firmly believe to be true.". Paragraph 18 of the affidavit bearing tender No. 8387/2 reads : "18. That, statements in this counter-affi-davit in paras 1 and 2 are true to my know-ledge, those made in paras 1 to 4 and 6 to 15 and 17 are true to belief and those made in paras 5 and 6 are matters of records which firmly believe to be true.". The first part of the verification in each of the original affidavits quoted above indicates that the statement made in paragraphs-1 and 2 of each of the original affidavits are true to the knowledge of the deponent. On perusal of paragraphs 1 and 2 of each of the original affidavits, it appears, that the statements are introductory in nature. But in the second part of the verification of each of the original affidavits, sources of information have not been disclosed. 3. In State of Bombay v. Purushottam, AIR 1952 SC 317 , (1952 Cri LJ 1269) it has been held : "The verification however states that every-thing was true to the best of his information and belief. But in the second part of the verification of each of the original affidavits, sources of information have not been disclosed. 3. In State of Bombay v. Purushottam, AIR 1952 SC 317 , (1952 Cri LJ 1269) it has been held : "The verification however states that every-thing was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly dis-closed." (Emphasis added) 4. The above principle was reiterated in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 . In AKK Nambiar v. Union of India, AIR 1970 SC 652 : (1970 Lab IC 566) the Supreme Court has held : "The importance of verification is to test the genuineness and authenticity of allega-tions and also to make the deponent re-sponsible for allegations. In essence verifi-cation is required to enable the Court to find out as to whether it will he safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence." (Emphasis added) 5. In Sukhwinder Pal v. State of Punjab, AIR 1982 SC 65 , the Supreme Court has held : "Under Order XIX, Rule 3, of the Code of Civil Procedure, 1908, it was incumbent upon he deponent to disclose the nature and source of his knowledge with sufficient particular-ity. ". 6. In Savitramma v. Naronha, AIR 1988 SC 1987 , The Supreme Court has summa-rised the principles laid down in the earlier cases referred to above. 7. Rule 26 of the Chapter IV of the Gauhati High Court Rules (for short the Rules) relates to verification of affidavit when the declarant speaks about any facts within his knowledge. ". 6. In Savitramma v. Naronha, AIR 1988 SC 1987 , The Supreme Court has summa-rised the principles laid down in the earlier cases referred to above. 7. Rule 26 of the Chapter IV of the Gauhati High Court Rules (for short the Rules) relates to verification of affidavit when the declarant speaks about any facts within his knowledge. Rule 27 of the Rules provides that when the statement rests on facts disclosed in the documents, the de-ponent shall state the source of the documents and his information or belief as to the truth of the facts disclosed in such documents; and that when the matter deposed to is not based on personal knowledge the sources of infor-mation should be clearly disclosed. In this Court, evidence in support of the statements contained in the writ petition is accepted in the form of affidavits filed by the parties concerned. In the light of the decisions referred to above, we are of the view that the principle underlying Rule 27 is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the Court to know as to what facts are based on the personal knowledge, information and belief this is relevant for the purpose of appreciating the evidence before the Court in the form of affidavit. It is only on the basis of verification, it is possible to decide the genuineness and authenticity of the alle-gations and the deponent can be held re-sponsible of the allegations made in the affidavit. It is, therefore, necessary that Rule 27 should he complied with strictly. 8. Coming to the verification in question, it has already been concluded that the first part of the verification of each of the original affidavits are only introductory in nature and, therefore, if thy are excluded from consideration it would not affect the result. It has also been concluded that in the 2nd part of each of the original affidavits, the deponent has not disclosed the source of information as is provided under Rule 27, and as such, the verification is defective and such slipshod verifications of affidavit may lead to their rejection. 9. Mr. Bhattacharjee, learned counsel for the petitioner, has contended that such re-verification by filing proposed supplementary affidavits cannot be allowed as it would amount to amendment of the affidavits, which amendment cannot be allowed. 9. Mr. Bhattacharjee, learned counsel for the petitioner, has contended that such re-verification by filing proposed supplementary affidavits cannot be allowed as it would amount to amendment of the affidavits, which amendment cannot be allowed. Mr. G. C. Chakravorty, learned counsel for the respondents 1, 2 and 5 has contended that it is not an amendment of the statement made in the affidavit but it is only to re-verify by disclosing sources of information. 10. The question which arises for consi-deration is whether allowing of the proposed supplementary affidavit by way of re-veri-fication would amount to amendment. In each of the proposed supplementary affi-davits, it is stated that the proposed verifica-tion therein be read in place and instead of paragraph relating to verification in each of the original affidavits. Amendment means to alter by addition, substitution, or omission. If re-verification in the manner sought is allow-ed, it will alter the original affidavits, either by addition or substitution. Therefore, it would amount to amendment of the original affi-davits so far it concerns the verification. 11. The question then is, - Whether verification of an affidavit can be allowed to be amended ? An affidavit is statement of facts in writing made voluntarily before an officer authorised to administer oaths. An affidavit is different from a plaint. As already stated, in the writ petition, evidence in support of facts in the petition is accepted in the form of affidavit. But the allegations in the plaint are to be proved by producing evidence, unless they are admitted by the defendant. An affidavit which is not properly verified cannot be treated as an affidavit in the eyes of the law. When there is no original affidavit in the eyes of the law, the question of amending it does not arise because amendment is referable to an existing one. In Dwarka Nath v. Income-tax Officer, AIR 1966 SC 81 , the Supreme Court has held, that, if an affidavit is defective in any manner, instead of rejecting it a reasonable opportunity is to be given to the party concerned to file better affidavit complying with the requirements of law. The above decisions indicates that, if an affidavit is defective for lack of proper verification, an opportunity must be given to the party concerned to file a properly verified affidavit. The above decisions indicates that, if an affidavit is defective for lack of proper verification, an opportunity must be given to the party concerned to file a properly verified affidavit. This shows impliedly that amendment of verification of affidavit cannot be allowed but the party concerned must be given an oppor-tunity to file a properly verified affidavit. For these reasons, the verification of affidavit cannot be amended. 12. In the facts and circumstances of the case and keeping in view the decision of the Supreme Court in Dwarkas case (supra), we propose to give the respondents 1, 2 and 5 and opportunity to file properly verified affi-davits. But Mr. Bhattacharjee has contended that no such opportunity can be given to the respondents 1, 2 and 5 at this stage. He has advanced the following submissions - (a) the application has been filed belatedly for, in the rejoinder filed by the petitioner, it has already been raised that affidavits have not been properly verified and the writ petition has been heard at some length dealing with the affi-davits; and (b) if another affidavit is allowed to be filed in the nature of supplementary affidavit, it would be to the prejudice of the petitioner as it will change the character of the original affidavits. With regard to clause (a) it appears from the application filed by the respondents 1, 2 and 5 that the defect was through inadver-tence and it was not intentional. It also appears to us that the defect was due to bona fide mistake of the drafting Advocate. Be-cause of the defect caused by the draftsman, respondents 1, 2 and 5 should not suffer. In respect of clause (b), as stated earlier, an affidavit which is not properly verified cannot be treated as an affidavit in the eyes of the law. Therefore, question does not arise for consi-deration of what learned counsel has argued. However, the petitioner may raise just objec-tion at the time of the hearing of the petition. We cannot, however, ignore that the writ petition has been heard at some length. 13. Therefore, question does not arise for consi-deration of what learned counsel has argued. However, the petitioner may raise just objec-tion at the time of the hearing of the petition. We cannot, however, ignore that the writ petition has been heard at some length. 13. Considering the overall facts and circumstances of the case, we are of the opinion that it would meet the ends of justice if the respondents 1, 2, 5 and are given an opportunity to file a properly verified affi-davits complying with the relevant provisions of the rules without changing the contents of the original affidavits except the relevant paragraphs relating to verification. It is ordered accordingly. Order accordingly.