WP(C)/531/2005 of Sri Rajkumar Prasad Vs State of AP on 30 September 2005

Conclusion

(1) Tne prayer made in the writ petition 1S vague as no specific Writ namely Mandamus has been prayed seeking direction to the respondents. (11) The Advocate, Snri K. C. Jalswal engaged by the petitioner as an Advocate on ‘vakalatnama’', nasworn the affidavit. (111) The contents of the ‘vakalatnama' do not indicate tnat the advocate was authorized by the petitioner to swear the affidavit. (iv) Snri K. C. Jaiswal nas not indicated nis age, address and the capacity to swear tne affidavit. (v) The affidavit 1S not in proper form. (vi) No verification has been made in the affidavit dated 12. 9. 2005. (vil) It has not been indicated whether Snri k. C. Jaiswal nas sworn tnis affidavit as the holaer of Power of Attorney of the petitioner or agent or Pairkar or authorized person.

( 5 ) Without dealing with the merits of the petition, the maintainability of the writ petition in reference to an affidavit by an Advocate as deponent (engagedby the petitioner/party), 1S the main question for consideration.

( 6 ) In order to dealt issue it 1S necessary to indicate Section 16 (1) of the avocates Act, 1961, (in snort the \act 1961\) which acknowledges two classes ofAdvocates, 1. e. , senior Advocates and otner Advocates. Section 1/7 (1) providethat every State Bar council snall prepare and maintain a roll of advocates in.which snall be entered, tne names and addresses of (a) alt persons who were entereq as Advocates on the roll of any nigh Court under the Indian Bar Councils act, 1926 and who at any time express an intention in the prescribed manner to practice witnin the jurisdiction of the Bar Council and (bd) att other persons who a

e aamitted to pe adavocates on tne rotltl of the State Bar Council under the' Ac961' on or before the appointed day. Section 24 deals with persons who may be admitted as Advocates on a state Roll. Section 24 (a) deats with disqualificationTor enrolment as an Advocate. Section 29 deals with Advocates to be the only recognized class of persons entitled to practice law. Section 30 deals with the rignt of tne advocates to practice. Section 33 deals with that Advocates alone entitled to practice. Section 49 deals with the generat power of the Bar Council ofIndia to make rates. Section 49 (1) (c) deals with the standards of professionalconduct and etiquette to be observed by advocates. Section 49a deals with the power of the Central Government to make rules. Part VI, Chapter II of the Bar Councit of india Rules framed under Section 41 (C) of the ‘act 1961' deals about the standard of professional conduct and etiquette. Section I deals witn tne qutyto the Court. Section II deats with tne duty to the client, Section III deals wltn tne duty to the opponent. Section iv deals with duty to tne colleagues. Clause (9) of Section I provides an Aadavocate snould not act or plead in any matter which he is himself pecuniarily interested. Clause (18) of section II provides|an Advocate snall not at any time be a party to fomenting of Litigation (empnhasS supplied ). Clause (19) of Section 11 provides an Advocate snall not act on tne instruction of any person other than nis client or his autnorized agent.|

( 7 ) In support of nis argument Mr. K. C. Jalswal, Learned counsel, has asserteaq tnat any person may swear the affidavit. An Advocate of the petitioner/party/Lient 1s entitled to swear the affidavit as deponent in support to the writ petltion (erstwhile Civit Rule) and affidavit in question nas been filed by nim on tne basis of the information derived from the original records of the petitioner.For tnis purpose mr. Jalswalt nas Rule 25 of chapter-IV of the Gaunhati Hign Cot Rules which provides as below:

\every person, other than a plaintiff or defendant in a suit in which the application 1S made, making any affidavit, shall be described in such a manner as willserve to identify nim clearly, that 1s to say by the statement of his Tull name, the name of his father, his profession or trade and the place of his residence.N\

Tne Learned counsel nas invited the attention of this Court to Order 6, Rule 15,CPC, which provides as below:\verification of Pleadings- (1) Save as otnerwise|provided by any Law for the time being in force, every pleading snall be verifieaq at the foot by the party or by one of the parties pleading or by some otner prson proved to the satisfaction of the Court to be acquainted with the facts oftne case. (2) The person verifying snaltl specify, by reference to the numbered aragrapns of the pleading, wnat he verifies of Nis own Knowledge and what he ver1f1es upon information received and believed to be true. (3) The verification snall be signed by the person making it and shall state the date on which and theplace at wnicn it was signed. \ order 12, Rule 7, CPC, provides as follows: \afTidavit of signature-An affidavit of the pleader or nis clerk, of the due signature of any admissions made in pursuance of any notice to admit documents or facts, Shall be sufficient evidence of such aamissions, if evidence thereof 1s required. \

Referring to the decision of the Supreme court reported in AIR 1959 Cal. 642, Mr. Jalswal nas submitted that a defect in verification 1S irregularity only in the procedure and will not be a ground for rejection of tne plaint. In view of thedecision in AIR 1914 SC192 (at 193), verification being made under sanction of.solemn declaration, a false verification will render the party verifying Liableto a prosecution Tor an offence under Sections 191 and 193, IPC. It has furtherbeen submitted tnat a. false verification witt not, entail the dismissal of thesuit, especially when the defendant takes no objection thereto at the proper time., ( 8 ) On the other hand, Mr. B. L. Singh, learned Senior GA, AP, has invited attention of this Court to Rule 1 (A) of Chnapter-V-A of tne Gaunati High Court RulSs. For convenience Rule 1 (A) 1S provided below. \in alt Civit Rules, one addit onal set of authenticated petition with annexures and affidavits, if any, shallbe filed by the party concerned. \ (emphasis supplied)/' in view of above, the learned counsel for tne state has Tfurtner submitted that it 1s the party concernwno nas to file and swear affidavit. According to the Learned counsel for the State mr. K. C. Jalswalt being an Advocate is not to stand and walk througn snoes fT the petitioner and is not expected to act in fomenting, the litigation and topersonify himself as the; petitioner or client nerein. Order 3, Rute 1, CPC, provides: \appearances, etc. may be in person, recognized agent or by pleader-Any appearance, application or act in or to any Court, required ar autnorized by Lawto pe made or done by a party in sucn Court, may, except where otherwise expressLy provided by any Law for the time bekg in force, be made or done by the partyin pearson, or by his recognized agent, or by a pleader [Lappearing, applying oracting, as the case may be] on his behalf. Provided that any such appearance snaLl, 1f the Court so directs, be made by the party in person. \ order 3, Rule 2,CPC, provides: \recognised agents-The recognieed agents of parties by whom sucnappearance, applications and acts may be made or done are- (a) Persons nolding powers-of-attorney, autnorizing them to make and do sucn appearances, applicationS and acts on behalf of sucn parties. (b) Persons carrying on trade or businessTor and in the names of parties not resident within the local Limits of the Jur1sdiction of tne court within wnich Limits the appearance, application or act 1smade or done, in matters connected with such trade or business only, where no otner agent 1S expressly authorized to make and do such appearances, applicationsand act. \ order 3, Rule 4, CPC, provides:

\appointment of pleader- (1) No pleader snall act for any person in any Court, unless ne has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment. \ order 6, Rule 14, CPC, provides: \pleading to be signed-Every pleading shall be signedby the party and his pleader (if any): provided that where a party pleading 1s,by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly autnorized by nim to sign the same or to sue or defend on nis behalf. \

Order 6, Rule 15, CPC, provides:\verification of Pleading- (1) Save as otherwiseprovided by any Law for the time being in force, every pleading snall be verifled at tne foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts oftne case. (2) The person verifying snaltl specify, by reference to the numberedparagraphs of the pleading, what ne verifies of nis own Knowledge and wnat he verifies upon information received and believed to be true. \ order 19, Rute 1, CPC, provides: \power to order any point to be proved by affidavit-Any Court may at any time for sufficient reason order that any particular fact or facts may beproved by affidavit, or that tne affidavit of any witness may be read at the hearing, on sucn conditions as the Court tninks reasonable. Provided that where itappears to the Court that either party bonafide desires the production of a witness Tor cross-examination and that such witness can be produced, an order shallnot be made authorizing the evidence of sucn witness to be given by affidavit. \Order 19, Rule 3, CPC, provides :\matters to which affidavits shall be conTfined(1) Affidavits snalt be confined to sucn facts as tne deponent 1s able of nis own Knowledge to prove, except on interlocutory applications, on which statementsof his belief may be adqmitted. Provided that grounds thereof are stated. Order19, Rule 6, provides: \every person making any affidavit snaltl be described theein in such manner as shall serve to identify him clearly; and where necessary for this purpose, it shalt contain the Tull name, the name of his father, of niscaste or religious persuasion, his rank or degree in Life, nis profession, calling, occupation or trade and the true place of his residence. \Order 19, Rule 7, CPC, provides:\untless it be otherwise provided, an affidavit ay be made by any person naving cognizance of the facts deposed to. Two or morepersons may join in an affidavit; eacn snallt depose separately to those facts wich are within his Knowleage; and such facts shall be stated in separate paragra pns. \In order 19, Rules 4 to 15, CPC, the allanabad High Court has added certain port10n whicn prescribes the pleadings, form of affidavit is to be filed.

( 9 ) The word ‘pleading’ in this sense, generally includes the rignt of audience in Court, tne rignt to address the Court and right to examine or cross-examinethe witnesses (Aswin S. P. Patel Vs. National Rayon, AIR 1955 Bom 262; D. Sornam Vs. State, (1969) 1 Mad LJ 207 at 209 ).

( 10 ) A third person who 1s not an advocate naving power of attorney nas no rignt of audience put can with the leave of tne Court may address tne Court (B. Yasnwant Vs. Regionat Director, 1978 Mantj 589 ).

( ll ) Order 3, Rule 1, CPC, makes it clear that the Court can direct party/part1es to appear in persons and does not violate Article 21 of the Constitution ofIndia in view of the decision of tne Supreme Court in (Sarala rani Gupta Vs. Bnhsan Lal, AIR 19/76 J and kl2 ).

( 12 ) A statement that 1S made by an advocate across the Bar with reference tomatter that are witnin the personal Knowledge on issues tnat are before Court, can be accepted, there 1s no legal bar acceptance of sucn an affidavit (T. Krisnnaswamy Vs. Maniyamma, AIR 2001 AP 3/7 ).

( 13 ) Right of pleading and practising of law 1s conferred only on registered aadvocate. Petitioner who was chartered accountant was a recognized agent noldingpower of attorney, could file application on benatf of party as such recognizedagent, But he 1S not validly eligible to plead and practice as an advocate.

( 14 ) Under Order III, Rule 1 of CPC recognized agents and those holding powerof attorney from party authorizing tnem to make sucn appearance and filing sucnapplication under or do prescribed acts. [Tne law distinguishes recognized agentTrom pleader (Jaymol Thokone Vs. Chanty Commissioners, Ahmedabad, AIR 2001 Guj.2/9 ).

( 15 ) An advocate who 1s personally interested ina case, snould retire from tne case and should not accept brief (S. S. Ready Vs. Cnief Secretary, AIR 1987 SC1550 ).

( 16 ) In the absence of Rules Tramed an application or petition under Article 226, must be drawn in conformity with tne provisions of the Civit Procedure Coderelating to pleadings, as far as possible (Kishorilat Kanoo vs. Deputy Commissioner, Kamrup, AIR 7955 Assam 183 ). Tne application snould contain, in a conciseTorm, tne materiat facts on which the party relies for his claim (ITO vs. Damodar Bnat, M. , AIR 1969 SC 408 (414) and must not be vague (Municipat Ba. MaunathBnanjyan Vs. Swadeshi Cotton mitts Co. Ltd. 1977 SC 1055 : (1977) 2 scc 875 ).

( 17 ) In A. K. K. Nambiar, Appettlant Vs. Union of India and Anr. AIR 1970 SC 62 (V 57 C 125), the Supreme Court has observed as Tollows:

\tne reasons for verification of affidavits are to enable tne Court to Tind outwhich Tacts can be said to be proved on the affidavit evidence of rival parties.Allegations may be true to Knowledge or allegations may be true to information—received from persons or allegations may be based on records. The importance ofverification is to test the genuineness and authenticity of atlegations and alsoto make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot beaamitted in evidence. \

( 18 ) The allegations in the application must be supported by affidavit and sho uld be similarly answered by an affidavit in opposition by the respondent. A copy of the affidavit in opposition should be Tfurnisned to tne applicant in good tme before the date fixed far hearing and applicant wiltl also be at liberty to uea reply, also furnisning copies to the respondent (Knudiprasad Bhakat Vs. Stake of West Bengal, AIR 1952 Cal. 7/98.

( 19 ) The affidavit must be that of the applicant nimself. An affidavit of anagent or employee 1s not in order (Tropicatins. Co. Vs. Union of India, (1955) 2SCR 517 (519) : air 1955 SC 7/789 )

( 20 ) The affidavit snould be confined to statements of facts and snould not beused as vehicle of argument (Dwarka Natn Vs. ITO, air 1966 SC 81 (88 ).

( 21 ) An affidavit wnicn 1s not in conformity witn O. 19, R. 3 (Barium ChemicalSs Vs. Company Law Ba. , AIR 1967 SC 295 (319): 1966 Supp. SCR 311) of tne CPC 1Liable to be rejected, unless the defect can be cured by giving the petitioner|an opportunity to swear a fresn affidavit, clarifying the defect {dwarka Nath (supra)}. If any averment 1s not based on personal Knowledge, the source of information must be disclosed (Barium chemicals Vs. Company Law Bad. , AIR 1967 SC 295(319):

( 22 ) The affidavit must be sworn by the person in wnose Knowledge the facts are {dwarka Natn (Supra)}, thus, wnere there is an atlegation of malafides againsta minister personally, it must be sworn by nimself (Kapur, R. P. Vs. Pratap Singn Kairon, sardar, AIR 1961 SC lll/7 (1125), Pratap singh S. Vs. State of PunjabAIR 1964 SC 72 (85), Rowjee, CS Vs. State of AP, AIR 1964 SC 962 (970) but thatwould not be necessary where there 1S no such personal allegation (Laknanpal, P. L. Vs. Union of india, AIR 196/7 SC 908 (915 ).

( 23 ) Any person acquained with the facts of tne case may give affidavit (AIR l955 trav-Co. 97 (102) (DB), AIR 1954 Cal. 159 (163) (DB), AIR 1953 Nag. 169 (1/7) (DB), air 1951 Cat. 239 (241 ).

( 24 ) The affidavit should be verified so tnat the reason for verifying affidavits 1s to enable the Court to find out what facts can be said to be proved on tne affidavit evidence. In essence verification 1S required to enable the court toTind out as to whether it wilt be safe to act on such affidavit evidence (AIR 1970 sc 652 (653, 654) : A. A. K Nambiar Vs. Union of India and Anr. (Absence ofsucn verification 1s fatal to the affidavits and the evidence optained therein snoutd not pe aaqmitted or retied on ).

( 25 ) Legal practitioners are officers of tne court and wnen called upon to speak to facts relating to tne case in which they are engaged snould not be asked to file affidavits. Tneir statements snould be accepted (AIR 1928 mad 690 (692) (DB ).

( 26 ) Even where atlegations in an affidavit are stated to be correct to the best of the knowledge the nature and source of the Knowledge must be disclosed. Iftne nature and source of Knowleage 1s not disclosed the affidavit would not beas per law (AIR 1982 sc 65 (69, 70 ).

( 27 ) Writ petitions under Article 226 of the constitution are entirely decidedupon affidavits and to a certain extent take on the characteristics of interlocutory applications and it 1s not necessary tnat everything in the affidavit mustbe true to the personal Knowledge of the deponent (AIR 1954 Assam 161 (164) (DB), (1954) 58 Cal. WN 1066 (10/76 ).

( 28 ) Under R. 1 (2) of Cnap. XXII. Volt. 1 of Rules of Court, 1952 of the HighCourt of allanabad, an affidavit accompanying a writ petition must be restrictedto facts wnicn are witnin tne deponent's own Knowledge (AIR 1962 AH 70 (71), 19

56 ALL LJ 198 (200 ).

( 29 ) Where a person swears an affidavit 1n a case whicn does not concern nim 1t 1S not enough to make a formal verification that ne 1S personally acquainted witn the facts deposed to in his affidavit; he must explain now he became acquainted witn the events and Nappenings whicn did not ordinarily appear to concern Nim (AIR 1962 ALL 70 (71), (M/S SUKNWinder Pal Bipan Kumar and Ors. etc. Vs. Stateof Punjab and Ors.) 1982 ALt LJ 586 (590 ).

( 30 ) An affidavit in support of the writ petition or the counter affidavit must conform to the provisions of O 19,r 3,cpc or the provisions analogous thereto(1990) 2 Pat LJIR 206 (212 ).

( 31 ) Affidavit in support of writ petition or counter affidavit must be in terms of or analogous to provisions of O19, R 3 (1988 Pat ltjr (HC) 414 (417 ).

( 32 ) Bombay High Court Criminal Manual, cnapter-VII, page 141, Para 5-Verification of affidavit-affidavits are meant for stating facts and are not meant for submitting arguments affidavits once made cannot be allowed to be changed by amending the same affidavits not properly verified cannot be admitted in evidence (1989 Cri LJ 715 (7/716, 71/7) (Bom.

( 33 ) Untess the affidavits are properly verified and are in conformity with tne rule, they will be rejected py the Court (AIR 1962 Pat 101 (105) (FB), AIR 1968 Cal 388 (389, 390), AIR 1964 Bom. 38 (39,40), AIR 1964 punj 198 (202 ).

( 34 ) Where the matter deposed to 1S not based on personal Knowledge, but on inTormation, tne source of information should be clearly disclosed (AIR 1952 SC31/(319), air 1956 Cal. 496 (497 ).

( 35 ) The swearing to a false affidavit 1s an offence of perjury under S. 191 0fT tne Penal code. It 1S a grave and serious matter and the Court will not take tLenient view of the matter (AIR 1963 Punj. 185 (1860) : 1963 (1) Cri LJ 478

( 36 ) In T. K. Krishnaswamy Vs. Smt, maniyamma, AIR 2001 Andhra Pradesn 3/7, thSupreme nas observed as follows :

\in Tact, as neld in the case of Sutnarsana vs. Samarapuri, AIR 1928 Mada 690, aDivision bencn of Madras High Court observed that tnougn vakils and other practitioners of the court, when they are called upon to speak to facts Known to tnemby way of evidence in any Litigation, are not different from other witnesses andwould have to depose Like all other witnesses, stitl a well recognized practicenas grown up in atl Courts of accepting the statements from the Bar of practitloners with regard to matters in connection with the very litigation in which they are engaged as practitioners. It 1s Turtner observed tnat for that purpose, they were really regarded as officers of Court owing a duty to tne Court and it waSs expected that sucn statements would be truly made with a full realization of ne sense of responsibility and that it was not necessary to insist upon their maKing an affidavit. \ (Para 9)\thus, a statement made by an advocate across the bar in respect of tne matters wnicn are in nis personal Knowledge on the questionbefore the Court can be accepted. Tnere 1S no reason why an affidavit sworn to.by him could not be accepted. \ (Para 10)

Facts

( 37 ) There 1S no doubt that any person acquainted witn the facts of the case may give an affidavit as a deponent. A statement made by an advocate (in a matterbefore the Court)verifiable from records or statement actress the Bar in respect of matter which are in nis personal Knowledge, could be accepted by the Courtand sucn advocate may not be insisted upon to support such statement by afTidav1t, nowever, there 1S no reason why an affidavit sworn by him could not be accepted.

( 38 ) The advocate on being engaged by a party on Vakalatnama is entitled to plead, argue and assist the Court as an officer of the court, fairly, honestly witnout identifying himself with the cause or party. Tne advocate is not to person1Ty the party/client and 1s not expected to involve himself stepping into and moving through tne shoes of party/client becoming a party interested, fTomenting thLitigation, to acnieve tne end as cherished by the party. The advocate as officer of the Court wnen called upon to address on the facts relating to the case inwnicn he 1S engaged snould not be asked to file affidavit and nis statements snould be accepted but the advocate of Bar Council whose name is entered on stateroll by virtue of becoming a different class, alone 1s entitled to practice subject to the restrictions, norms and provisions of the advocates Act as well as tne rules framedq by tne High Court and/or by the Bar Council of india and/or by Br Council of States; however, the Court/authority at its pleasure and in the interest of justice may permit any person (not even as an advocate) to appear inaparticular case. Tnoughn not specifically provided in advocate Act, or rules of ar Council of India, or rules of State Bar Council, the advocate nowever, nas tomaintain the status and role and dignity of profession of advocate. Judicial propriety requires that advocate snoulda not file an affidavit nimseltf for a partas deponent in support of tne averments of a petition in whicn he 1S engaged asan advocate as the affidavits are stated to be correct on facts, records, to thebest of tne Knowledge, the nature and source of Knowledge and information are to be disclosed. If tne nature or Knowledge of information are not qisclosed tneaffidavit would not be as per Law. Tne affidavit has to be made by a person or party or agent or pairokar or authorized person or power of attorney nolder having cognizance of facts deposed to an affidavit disclosing clearly the status of deponent and the manner and capacity now he 1s autnorizeda to swear the affidavitbesides tnat affidavit must be in proper proforma giving details, statements ofTacts, information, records, Knowleage, declaration, legal advice, verificationand identification. One such proforma is provided in amendment of Alltanabad madin Order 19, rules 4 to 15, CPC.|

( 39 ) An affidavit in support of writ petition must be in consonance to the provisions of order 19, Rule 3, CPC and unless the affidavit 1S properly verified anad 1s not in conformity with the rule, it may be rejected by the court and whentne matter deposed to is not based on personal Knowledge, but on information, the source of information snould clearly be disclosed.|

( 40 ) In view of the above observations and in the facts and circumstances, theaffidavit in support of the present writ petition is neither in proper form norShri Jaiswal as an advocate 1s entitled to swear tne same. This court 1s not inclined to invoke its extra ordinary discretionary jurisdiction to entertain thewrit petition under Article 226 of tne Constitution, therefore, without comment1ng anything on merits, it 1S dismissed, nowever, the petitioner 1s at Liberty toTile a fresn writ petition if so advised, in consonance to the rules and Law wlth the support of proper affidavit of relevant person.|

( 41 ) In view of the above order, the Misc. Case No. 139 (AP) 05 1S also dismissed.