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2019 DIGILAW 2478 (ALL)

Gaurav Kapoor v. State of U. P.

2019-11-05

P.K.S.BAGHEL, PIYUSH AGRAWAL

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JUDGMENT : Piyush Agrawal, J. 1. The petitioner has filed the present writ petition seeking mandamus directing to respondent no. 2 to take appropriate steps on the complaint made by the petitioner on 10.4.2019 alleging that respondents is engaged in commercial activity in the residential area. 2. Sri Shivam Yadav, learned counsel for the respondent has pointed out that affidavit filed in support of the writ petition is being sworn by father of the petitioner but at the relevant place of affidavit, name of the petitioner has been shown. There is defect in the affidavit filed in support of the writ petition. Therefore, the present writ petition is not maintainable. 3. On 24.10.2019, the counsel for the petitioner was granted time to move an appropriate application for correcting the affidavit. Learned counsel for the petitioner has moved an application to amend the said defect. 4. However, our attention has been drawn to Chapter IV, Rule 18 of the Allahabad High Court Rules, 1952; wherein, it is provided that no interlineations, alternations or erasures in an affidavit shall be permitted after swearing has been done. 5. Chapter IV, Rule 18 of Allahabad High Court Rules reads thus: "18. Correction in affidavit - All interlineations, alterations or erasures in an affidavit shall be initialled by the person swearing it and the person before whom it is sworn. Such interlineations, alterations or erasures shall be made in such manner as not to obliterate or render it impossible or difficult to read the original matter. In case, such matter has been obliterated so as to make it impossible or difficult to read it, it shall be re-written on the margin and initialled by the person before whom the affidavit is worn. No interlineation, alteration or erasure shall be made in an affidavit after it has been sworn." 6. In Dwarka Nath vs. Income Tax Officer and Another, AIR 1966 SC 81 , one of the question which comes for consideration before the Supreme Court was that the order of Commissioner Income Tax under Section 33A of the Act was challenged under Article 226 of the Constitution, in which this Court has dismissed the writ petition on the ground that affidavit was defective and it was held that some of the paragraphs were based on perusal of the record and some paragraphs were on deponent's own knowledge. The Supreme Court held that if affidavit was defective in any manner, the High Court instead of dismissing the petition, should have given the appellant a reasonable opportunity to file a better affidavit. The relevant part of the judgment reads as under: "9. The High Court mainly dismissed the writ petition on the ground that the affidavit filed in support of the writ petition was highly unsatisfactory and that on the basis of such an affidavit it was not possible to entertain the petition. In exercise of the powers conferred by Article 225 of the constitution and of other powers enabling it in that behalf of the High Court of Allahabad framed the Rules of Court. Chapter XXII thereof deals with the procedure to be followed in respect of proceeding under Article 226 of the constitution other than a writ in the nature of habeas corpus. The relevant rule is sub-rule (2) of rule 1 of Chapter XXII, which reads: The application shall set out concisely in numbered paragraphs the facts upon which the applicant relies and the grounds upon which the Court is asked to issue a direction, order or writ and shall conclude with a prayer stating clearly, so far as circumstances permit, the exact nature of the relief sought The application shall be accompanied by an affidavit or affidavits in proof of the facts referred to in the application. Such affidavit or affidavits shall be restricted to matters which are within the deponent's own knowledge." 7. We have heard the learned counsel for the petitioner, Sri Anup Trivedi, learned Senior Counsel assisted by Sri Abhinav Gaur for respondent-4, Sri Shivam Yadav, learned counsel for the Development Authority and learned Standing Counsel for the State- respondents. 8. We have carefully perused the judgment of Supreme Court in Dwarka Nath (supra). The said extract shows that the Court has considered the sub rule 2 of Rule 1 of Chapter XXII of Allahabad High Court Rules, which deals with the procedure of writ under Article 226 and 227 of the Constitution. In that case, the dispute was with regard to the verification clause whether the amendment, was made on the basis of personal knowledge or on the basis of perusal of record. Supreme Court has quoted the entire affidavit in its judgment. 9. In that case, the dispute was with regard to the verification clause whether the amendment, was made on the basis of personal knowledge or on the basis of perusal of record. Supreme Court has quoted the entire affidavit in its judgment. 9. In the present case, the matter is in respect of defective affidavit as the deponent's name has wrongly shown in the affidavit. This defect in the affidavit has referable to Chapter IV, which deals with the affidavits and oath commissioners. Chapter IV, Rule 18 deals with the corrections of the affidavit, which is extracted above. A perusal of Rule 18 shows that it clearly provide that no inter lineation, alteration or erasure shall be made in an affidavit after it has been sworn. 10. In our view, the nature of mistake in the affidavit requires correction in the affidavit. It was not a matter of verification of the affidavit. Hence, in view of clear prohibition that after the affidavit sworn, it cannot be corrected. In the present case, Rule 18 of Chapter IV is attracted. Accordingly no correction is permissible, if there is no defect in the affidavit. But as held by Supreme Court in Dwarka Nath (supra) a defect in verification clause whether an affidavit has been sworn on the basis of personal knowledge or on perusal of document, it can be corrected by giving opportunity to the petitioner to rectify the mistake. 11. In view of the said fact, the learned counsel for the petitioner seeks the leave of this Court to withdraw this writ petition to file better affidavit. 12. The leave is granted. 13. The writ petition is dismissed with the liberty to file a fresh writ petition.