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Madhya Pradesh High Court · body

2003 DIGILAW 834 (MP)

Jaishree Pillai v. State of M. P.

2003-07-10

K.K.LAHOTI

body2003
JUDGMENT Petitioner has filed present petition challenging the order Annexure P-7. Entire petition is filed on affidavit. The documents annexed to the writ petition are neither attested by the notary nor the counsel appearing for petitioner has attested them as true-copy, though on some pages, such attestation has been done, but it is not due compliance of provision. The writ petitions are being decided on the basis of affidavit. The documents are made part of the affidavit. The orders are passed on the basis of documents filed alongwith the writ petition. Authentication of the document is necessary, so that, those may be treated as correct and complete (copy of document) to safe-guard the interest of the parties appearing in the case. High Court has framed rules for proceedings under Article 226, Constitution of India. Rule 1 of the aforesaid Rules is relevant, which is quoted below: "1. (a) A petition for a direction or order, or writ, including writ in the nature of Mandamus, Prohibition, Certiorari, Quo Warranto, etc. shall be filed in the form prescribed under this rule and shall, as far as possible, conform to the provisions of Order 11, Rule 1, 2 and 3 of the Civil Procedure Code and Rules 2 and 3 of Chapter IV of the Rules of the High Court in the matter of affidavit to be filed in support thereof. (b) The petition shall be accompanied by the order or decision, if any, complained of and an affidavit verifying the facts relied on. The petition shall be presented by the applicant in person or by the duly authorised legal practitioner. The petition alongwith its Annexures shall be presented in two complete sets in paper book form with page Nos. and Index on the first page. (bb) It shall not be necessary to present a separate application to seek interim order or direction if the same is prayed for in the original petition. (c) When a petitioner relies upon a document or documents in his possession or power, he shall file them alongwith his petition. and Index on the first page. (bb) It shall not be necessary to present a separate application to seek interim order or direction if the same is prayed for in the original petition. (c) When a petitioner relies upon a document or documents in his possession or power, he shall file them alongwith his petition. (d) When he relies on any other documents, which are not in his possession or power as evidence in support of his petition, he shall enter such documents in a list to be added or annexed to the petition." The affidavits are to be filed as per rules 2, 3 and 4 of Chapter III of the Rules: "2. (1) Every affidavit shall be headed "In the High Court of Judicature at Jabalpur.' (2) If there be a cause in Court, the affidavit in support of, or in opposition to, an application representing it must also be entitled in the cause. (3) If there be no cause in Court, the affidavit shall be entitled' 'In the matter of the petition of ......" 3. Every affidavit shall be drawn up in the first person and divided into paragraphs, numbered, consecutively, and each paragraph, as nearly as may be shall be confined to a distinct portion of the subject. 4. (1) Except in Interlocutory proceedings affidavits shall strictly be confined to such facts as the declarant is able of his own knowledge to prove. (2) In an interlocutory proceedings, when the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant must use the expression "I am informed" or its equivalent, and must state the name and address of, and sufficiently describe for the purposes of identification, the person or persons from whom he received such information. (3) When the application or the opposition thereto rests on facts disclosed in documents or copies of documents produced from any Court of Justice or other source, the declarant shall state what is the source from which they were produced, and his information and belief as to the truth of the facts disclosed in such documents. (3) When the application or the opposition thereto rests on facts disclosed in documents or copies of documents produced from any Court of Justice or other source, the declarant shall state what is the source from which they were produced, and his information and belief as to the truth of the facts disclosed in such documents. (4) Documents, other than those on the record of the case referred to in the affidavit shall, as far as possible, be annexed to it." It has been observed that the parties are not filing complete affidavit as required by Rules 2, 3 & 4 of Chapter III of the Rules. But the entire petition is being filed on affidavit. When in the petition some documents are referred to and is a part of petition, naturally it is part of affidavit and it has to be annexed to the affidavit. If document is enclosed to the affidavit, it requires attestation by Oath Commissioner/Notary Public, as the case may be. But the aforesaid practice is not being followed and the documents filed alongwith the affidavit are not being attested. If any document is a part of affidavit, it requires attestation, which requirement cannot be waived. But, if any document is not a part of affidavit and is being filed alongwith the petition, then, rule 1 of Chapter II of the Rules for proceedings under Article 226, Constitution of India have to be followed. In the present case or in the other cases filed in the High Court, the aforesaid procedure is not followed. In view of the aforesaid, I find it necessary to direct the Registry to comply with strictly the Rules for proceedings under Article 226, Constitution of India and that in Chapter III of the Rules providing the manner in which affidavit is to be filed. Consequently, the following directions are issued to the Registry: (1) The Registry will strictly enforce the compliance of rule 1, Part II of Rules for proceedings under Article 226, Constitution of India framed by the High Court. (2) Every affidavit filed in the High Court should be strictly in consonance with the rules of Chapter III relating to affidavit. Consequently, the following directions are issued to the Registry: (1) The Registry will strictly enforce the compliance of rule 1, Part II of Rules for proceedings under Article 226, Constitution of India framed by the High Court. (2) Every affidavit filed in the High Court should be strictly in consonance with the rules of Chapter III relating to affidavit. (3) It is made clear that if a document is made a part of affidavit, then, it should be annexed thereto and duly attested by a notary or Oath Commissioner or any other officer empowered to attest the affidavit. (4) If any document annexed to petition is not a part of petition filed as an affidavit, it should be duly attested by the counsel with his signature and seal. (5) If any application is filed for amendment in the petition or for taking documents on record, it should be supported by affidavit, as stated hereinabove. Another application, which has been filed by the petitioner for taking documents on record, is not supported by affidavit. Even the documents sought to be taken on record are not attested even by the counsel. In these circumstances, it will not be proper to pass any order on the basis of these documents. If the petitioner intends to rely on certain documents and if those documents are part of the affidavit, then, it ought to have been attested by Notary or Oath Commissioner, as the case may be, and if the aforesaid documents are not part of affidavit and are being filed with the writ petition, then, counselor some responsible person should attest it as true-copy. The Registry is directed to observe the aforesaid directions and will insist for compliance of the directions by the petitioners-applicants, who are filing petitions-applications. Learned counsel appearing for petition undertakes that he will make the needful during the course of the day. Prayer allowed. If the documents are duly attested during the course of the day, this case be listed on 11.7.2003.