Affidavit

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Introduction
An affidavit is a written statement of fact sworn or affirmed to be true by the person making it (the deponent) before a competent authority. In Indian litigation and quasi-judicial practice, the affidavit is the workhorse of procedure: it supports interim applications, verifies pleadings, furnishes documentary narratives, and often substitutes for oral evidence where the procedure permits. Its central importance is twofold: (1) it converts a party’s assertions into sworn statements subject to penal consequences for falsity; and (2) it shapes the documentary record on which courts decide interlocutory and, at times, final relief.

Core Legal Framework
– Oaths Act, 1873: The Act supplies the statutory basis for administering oaths and affirmations in India and thereby underpins the legal effect of an affidavit. Practitioners should read the Act together with local rules about who may administer oaths (Magistrates, Notaries, certain officers, etc.) and the effect of affirmation where religious oaths are declined.
– Code of Civil Procedure, 1908 (CPC): Orders dealing with pleadings and examination of witnesses are relevant in practice. See in particular:
– Order VI (pleadings) – verification of pleadings (verification/verification clauses are provided for in the rules relating to pleadings, and courts expect a verification clause or an affidavit verifying pleadings where required by rules or practice directions).
– Order XIX (examination of witnesses) – courts’ power to summon witness testimony; affidavits may not substitute for oral examination where cross-examination is necessary unless the court permits otherwise.
– Indian Penal Code, 1860:
– Sections 191–193 (and related provisions) criminalise giving or fabricating false evidence and prescribe punishments for perjury and false statements made under oath. An affidavit containing knowingly false material may therefore attract criminal consequences.
– Indian Evidence Act, 1872: The Act governs what constitutes admissible evidence, the weight of documentary evidence, and the limits of written statements submitted by parties. Affidavits are documentary evidence but their evidentiary weight depends on how they are tendered and whether the opposing party has an opportunity for cross-examination.
– Court rules and practice directions: Supreme Court Rules (2013) and the relevant High Court Rules and district court practice directions prescribe affidavit format, pagination, annexure practice, and attestation requirements. These rules frequently override general practice and must be checked.

Practical Application and Nuances
1. Functions and forms
– Verification of pleadings: Most plaints, written statements and certain applications must be verified by an affidavit attesting to the truth of the averments and the deponent’s belief in them. The verification is not a mere formality; it is the deponent’s oath to the truth of those averments.
– Evidentiary affidavit: Affidavits accompany applications (interlocutory or final) to set out facts and refer to annexures (documents). Where parties rely on affidavit evidence (for interlocutory matters, urgent applications, or where oral testimony is impracticable), the affidavit serves as the direct evidence of the deponent, subject to cross-examination if the court directs.
– Procedural affidavit: Affidavits accompany petitions under statutory schemes (e.g., affiliation, insolvency petitions, company filings) certifying compliance with statutory conditions or procedure.

  1. Drafting essentials (practical checklist)
  2. Jurat: The concluding clause must clearly state date, place and before whom the oath/affirmation was made (“Sworn/Affirmed before me at [place] on [date] by [name]”).
  3. Identity and capacity: The deponent’s name, age, occupation, address, and capacity (plaintiff, director, power-of-attorney holder) must be stated at the start. If deponent is not the party (e.g., an agent), explain authority and produce instrument of authority as annexure.
  4. Personal knowledge and source of information: Distinguish statements made from personal knowledge and those made from information and belief. Affidavits relying on “information and belief” should state the source and reasons for the belief.
  5. Precise chronology and numbering: Number paras; refer to annexures with exhibit markers (Annexure A/1, A/2…) and describe documents in the body of the affidavit (date, signatory, relevance).
  6. Avoid unnecessary argumentation: Affidavits should state facts; argumentative narration, legal submissions, or rhetorical language weakens credibility and invites strike-down on procedural grounds.
  7. Annexures: All annexed documents should be properly authenticated (signatures traced where necessary), and the affidavit should state how the annexures were obtained.

  8. Signature and witnessing: Deponent’s signature (or mark if illiterate) must appear and the attestation by Magistrate/Notary/Oath Commissioner must conform to local rules.

  9. Evidence and cross-examination

  10. Affidavits as evidence: An affidavit is documentary evidence of the statements contained in it. If an affidavit is relied upon as evidence-in-chief, the deponent must be made available for cross-examination if the opposite party seeks it (unless the court dispenses with oral evidence). Courts routinely permit cross-examination where credibility or disputed facts are central.
  11. Hearsay and personal knowledge: Statements in affidavits that are hearsay (not based on deponent’s personal knowledge) have limited value on contentious issues; they may be admissible for limited purposes but are weak for fact-finding.

  12. Annexures vs. primary evidence: Where the affidavit relies on documents, the authentic and primary evidence must be produced if challenged. Secondary or photocopy evidence must satisfy the Evidence Act’s rules on admissibility.

  13. Commonly litigated scenarios — examples

  14. Interim injunction application: Applicant files an affidavit narrating irreparable harm, balance of convenience, and annexes contracts and correspondence. Respondent files counter-affidavit disputing facts and annexing documents; the court will often direct cross-examination if the applicant’s affidavit is the only evidence on crucial factual disputes.
  15. Execution/attachment proceedings: An affidavit of service and assets is critical. False statements in such affidavits expose the deponent to contempt or perjury proceedings.

  16. Insolvency petitions: Statutory affidavits under Insolvency and Bankruptcy Code must verify debt amounts and cause of default; courts scrutinise supporting documents and may summon the deponent for oral examination.

  17. Formalities that frequently cause problems

  18. Improper attestation: An affidavit attested by an unauthorized person (wrong rank of officer or outside territorial jurisdiction) may be rejected.
  19. Non-disclosure of material facts: Suppression of material adverse facts in an affidavit can invite dismissal of the application and punitive action.
  20. Improper annexure tagging: Missing exhibits or mis-numbered annexures hinder the court’s fact-finding and may result in adjournments.

Landmark Judgments (principles to note)
– Admissibility and weight: The Supreme Court has repeatedly emphasised that affidavits are documentary evidence but cannot wholly replace oral testimony where cross-examination is necessary to test credibility and resolve disputed facts. Courts permit affidavits to be relied upon for interlocutory relief where controversies are limited or where parties consent to decide on affidavits.
– Consequences of false affidavits: The judiciary has treated false affidavits seriously — false sworn statements have been the basis for criminal proceedings (perjury, giving false evidence) and contempt. Courts have sanctioned parties and counsel for deliberate misstatement in affidavits.
Note: Practitioners should consult the relevant bench decisions of the Supreme Court and their High Court for authoritative case-law on (i) when courts may decide matters solely on affidavits; (ii) limits on hearsay within affidavits; and (iii) remedies for false affidavits. (Local rules and precedents differ; check recent pronouncements in your jurisdiction.)

Strategic Considerations for Practitioners
1. Use of affidavits to shape issues
– Control the narrative: A well-drafted affidavit frames the factual matrix in clear, verifiable points with documentary anchors. This helps limit the opponent’s ability to re-cast issues.
– Reserve material for cross-examination: Anticipate that the opposing party will seek cross-examination if facts are contested; use affidavits primarily to establish uncontroversial facts and introduce documents that will withstand scrutiny.

  1. Tactical choices
  2. Seek early sanctity: Where possession, interim relief or urgent steps are sought, include strong, corroborating documentary exhibits to reduce the likelihood of successful challenges to the affidavit.
  3. Use admissions and business records: Affidavits supported by contemporaneous business records, statutory registers, or authenticated electronic records have higher probative value.

  4. Provide witness statements for factual richness: Where the issue is factual complexity (valuation, technical facts), consider both affidavit and offer of oral testimony to avoid court requiring viva voce evidence later.

  5. Dealing with opponents’ affidavits

  6. Apply for cross-examination promptly: If an opponent’s affidavit contains adverse facts or new documents, apply under the CPC or court rules for the deponent’s examination on oath.

  7. Challenge competency and formal defects: Attack improper jurats, lack of authority of the deponent, or inadmissible annexures. Procedural objections often induce corrections or produce better evidence.

  8. Avoiding pitfalls

  9. Never pad an affidavit with legal argument or speculative statements; courts may strike or ignore such paras.
  10. Avoid relying on hearsay as foundation for major factual claims unless it is corroborated by documents or admissible exceptions under the Evidence Act.

  11. Ensure affidavit compliance with court-specific formatting requirements (font size, pagination, margins, indexing of annexures) — non-compliance can lead to return of papers or costs.

  12. Ethical and professional considerations

  13. Counsel must ensure the affidavit’s truthfulness and that clients understand the criminal consequences of false swearing.
  14. Avoid coaching deponents to use evasive language; answers on oath must reflect personal knowledge or transparent source statements.

Conclusion
For the Indian litigator, mastering affidavits is indispensable. A properly prepared affidavit is not merely a lawyer’s draft; it is a sworn instrument that anchors relief, invites scrutiny, and can determine the tenor of litigation. Key practical takeaways:
– Treat verification as substantive: ensure the deponent has personal knowledge or clear source attribution.
– Comply precisely with attestation and local court rules; procedural lapses cost time and credibility.
– Use affidavits to establish documentary facts and limit issues, but be ready to produce the deponent for cross-examination where disputes are material.
– Beware the criminal and contempt consequences of falsehoods; curate contents carefully and ethically.

Checklist (quick)
– Who is the deponent and what is the deponent’s authority? — State clearly.
– Are all annexures properly identified and authenticated? — Tag and describe them.
– Is there a clear jurat with date, place and name of oath-taker? — Verify jurisdiction/power.
– Are assertions factual, numbered and non-argumentative? — Edit ruthlessly.
– Have you anticipated a cross-examination and preserved primary evidence? — Prepare witness and documents.

Final note: Local court rules and recent decisions shape the affidavit’s use in practice. Always consult the current bench decisions of the relevant High Court and the Supreme Court, and adhere to court-specific affidavit formats and filing protocols.