para 506 read thus -
506. The person who may administer
oaths to deponents must be duly
authorised under Section 139 of the Civil
Procedure Code to do so.
It would thus mean that the persons who may
administer oath to the deponents are to be the persons
who are authorized under Section 139 of C.P.C. to do
so. Therefore, the result is obvious that the Notaries
are authorized to administer oath to the deponents.11
The affidavits which are to be under the Code, can be
sworn by on administering the oath to the deponents
by any Notary appointed under the Notaries Act and
under Order 18, Rule 4 of the C.P.C., there is no bar
requiring to exclude the affidavits sworn before the
Notaries for taking them on record as an examination
in chief. Thus, such affidavits sworn before Notaries
can be accepted as evidence by the Civil Court. The
cumulative sequel would render the impugned order to
be incorrect and illegal at law. As such liable to be
quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5388/2008
Prashant Vs. Muncipal Council Bhadravati
Coram : Dongaokar
Dated: : 2nd APRIL, 2009.
Citation: AIR 2009 BOM 144
1. Heard Shri A.S.Chandurkar Adv. for the
petitioners, Shri A.A.Shelat, Adv. for Respondent No.1
Miss. Kirti Satpute, Adv. for Respondent No.2.
Rule.
Made returnable forthwith. Heard finally with
the consent of the parties.
2. By this petition under Articles 226 & 227 of
the Constitution of India, the petitioners are
challenging the order passed by Civil Judge, Junior
Division, Bhandrawati in R.C.S. NO. 1/1998, below
Exh.156, an application preferred by the petitioners
for adducing the evidence of a witness on affidavit
sworn before the notary. 3
3. Impugned order reads thus-
ORDER PASSED BELOW EXHIBIT 156.
Perused the affidavit annexed
herewith. It is sworn by one Manohar
Narayan Pranale before a Notary.
As per Order 18 Rule 4 of C.P.C.,
the evidence affidavit of witness is to be
sworn before Court machinery. If there
would have been any other option to do
so, legislature would have mentioned the
same in the said provision.
The Hon'ble High Court has
directed on 15.7.2008 to dispose of the
matter within six months. The parties
were asked to cooperate the Court and it
goes to mean that parties should not seek
adjournment. The plaintiff was given
opportunity to clarify the position about
notarized affidavit. But on one or the
other count, he seeks adjournment.
The affidavit of evidence is to be
sworn before machinery which is not
done in respect of PW Manohar Pranjale.
Hence no permission can be granted.
Hence, application is rejected.”4
According to the learned Judge, the affidavit of the
witness which is to be filed as an evidence in
examination-in-chief in any suit or proceedings before
the Court, has to be sworn before the Court machinery
i.e. court officials. According to him, the affidavit
sworn before the Notary cannot be taken on record as
an affidavit of a witness for the purpose of evidence
before the Civil Court. This order of rejection of
permission is challenged in this petition.
4. Learned counsel for the petitioners has
submitted that the provisions of Section 139 of the
C.P.C. read with relevant provisions of Order 18 Rule 4
of Civil Procedure Code, when read together, makes it
amply clear that affidavit sworn before the Notary can
also be treated as an evidence on affidavit of a witness
which can be filed in the proceedings of the suit before
the Civil Court. Therefore, he submitted that the
impugned order of the learned trial Judge is incorrect
at law and it is liable to be quashed and set aside by
exercising extraordinary writ jurisdiction of this Court.
5. Learned counsel for respondent no.1 relying on
the object of introducing amendment of Section 139
(aa) of the Code of Civil Procedure, contended that the
affidavit sworn before the Notary appointed under the
Notaries Act can be treated as an affidavit in
examination in chief, which can be accepted under
Order 18 Rule 4 of C.P.C. in the proceedings before the
Civil Court. Therefore, according to him, the
impugned order is incorrect.
6. Learned counsel for respondent no.2 has
however supported the order of the Court saying that
the discretionary powers of the Civil Court has been6
correctly exercised by passing the impugned order of
rejecting the application Exh. 156 by the learned trial
Judge. She has also relied on the provisions of Order
18, Rule 4 to contend that the same suggest that court
has to apply its mind to the facts of the case, nature of
allegations, nature of evidence and importance of
particular witness for deposition. As such, the learned
trial Judge was right in directing the petitioners to
clarify the position as per his order dated 28.11.2008
and as the same was not done, the impugned order
passed below Exh. 156 was correct.
7. In order to appreciate the rival contentions of
the parties, it is necessary to see the order passed by
the learned trial Judge dated 28.11.2009, which reads
thus-
“Perused the application and the
annexed evidence affidavit of witness
Manohar Pranjale. It is seen that said7
affidavit is not sworn in Court, but
before notary at Chandrapur though the
witness is resident of Bhadrawati. In
order 18, Rule 4, there is no mention that
notarize affidavit is allowed. The party
to clarify the matter first.
8. It appears that the learned counsel for the
petitioners before the learned trial Judge did not
clarify the relevant position and therefore, the
impugned order was passed.
9. In this regard, the provisions of Order 18, Rule
4 need to be seen. The relevant rule reads thus--
4. Recording of evidence. - (1) In every
case, the examination-in-chief of a
witness shall be on affidavit and copies
thereof shall be supplied to the opposite
party by the party who calls him for
evidence
Provided that where documents are
filed and the parties reply upon the
documents, the proof and admissibility of
such documents which are filed
alongwith affidavit shall be subject to the
orders of the Court.8
It does not exclude, in specific, the affidavits sworn
before the notaries, nor the same direct that such
affidavit could only be those sworn before the Court
officials.
10. At this stage, it is necessary to refer the
provisions of Section 139 of C.P.C. The same reads
thus
139. Oath on affidavit by whom to
be administered. - In the case of any
affidavit under this code-
(a) any Court or Magistrate, or
[(aa)any notary appointed under the
Notaries Act, 1952; or]
(b) any officer or other person whom a
High Court may appoint in this
behalf, or
(c ) any officer appointed by any other
court, which the State Government
has generally or specifically
empowered in this behalf,
may administer the oath to the
deponent.
It would be seen that clause (aa) reads thus-
(aa) any notary appointed under the
Notaries Act, 1952
Therefore, any affidavit under this Code can be
sworn before any notary appointed under the Notaries
Act.
11. At this stage, it would be useful to refer the
objects and reasons, by which this clause was inserted
under Section 139 of C.P.C. The relevant part of the
objects and reasons reads thus--
Objects and Reasons - Clause 49. -
“Notaries” have power to administer oath
under the Notaries Act, 1952. In the
absence of statutory provision, Courts
refuse to accept affidavits sworn before
the notaries. Section139 is being
amended to include a specific provision
permitting the swearing of affidavits
before notaries.10
12. It is thus obvious that notaries have power to
administer oath under the Notaries Act. In absence of
statutory provision, the courts were refusing to accept
the affidavits sworn before the Notary. Section 139
was amended to include a specific provision permitting
the swearing of such affidavits before the Notaries.
13. The provisions of Civil Manual, Chapter XXVI,
para 506 read thus -
506. The person who may administer
oaths to deponents must be duly
authorised under Section 139 of the Civil
Procedure Code to do so.
It would thus mean that the persons who may
administer oath to the deponents are to be the persons
who are authorized under Section 139 of C.P.C. to do
so. Therefore, the result is obvious that the Notaries
are authorized to administer oath to the deponents.11
The affidavits which are to be under the Code, can be
sworn by on administering the oath to the deponents
by any Notary appointed under the Notaries Act and
under Order 18, Rule 4 of the C.P.C., there is no bar
requiring to exclude the affidavits sworn before the
Notaries for taking them on record as an examination
in chief. Thus, such affidavits sworn before Notaries
can be accepted as evidence by the Civil Court. The
cumulative sequel would render the impugned order to
be incorrect and illegal at law. As such liable to be
quashed and set aside.
14. Adverting to the contentions that the
petitioners had failed to clarify the position and
therefore, for default, the impugned order is correct,
suffice it to say that the impugned order does not
withstand the legal scrutiny. Therefore, merely
because the petitioners had committed default in not12
“clarifying” the position, the impugned order cannot
be held to be correct.
15. The impugned order is, therefore, quashed
and set aside. The affidavit filed by the petitioners of
the witness is directed to be taken on record as an
evidence of the said witness. After taking the same on
record, the learned Civil Judge shall proceed with the
suit in accordance with law.
16. As the suit appears to be of 1998, the learned
trial Judge shall dispose of the same as early as
possible, in any case within a period of six months
from today.
Rule made absolute in above terms. Petition
disposed of. No order as to costs.
JUDGE
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