Petition Without Affidavit in Indian Law

The Imperative of Affidavits in Indian Petitions: A Legal Analysis of Filing Without Due Verification

Introduction

The edifice of judicial proceedings in India, as in many common law jurisdictions, relies heavily on the veracity of statements and claims presented before the courts. An affidavit, being a written statement confirmed by oath or affirmation for use as evidence in court, serves as a cornerstone in ensuring this veracity. It imputes a solemn responsibility upon the deponent for the truthfulness of the contents asserted.[1] Generally, pleadings are required to be verified, and in many instances, supported by affidavits. This article undertakes a comprehensive analysis of the legal position in India concerning petitions filed without an accompanying affidavit. It explores the general rules, specific statutory mandates, the consequences of such omissions—ranging from curable defects to fatal flaws rendering the petition non-est—and the judicial approach to these issues, drawing upon statutory provisions and a wide array of case law from the Supreme Court and various High Courts.

The General Rule: Affidavits and Pleadings under the Code of Civil Procedure

The Code of Civil Procedure, 1908 (CPC), which governs the procedure in civil courts, mandates the verification of pleadings. Order VI Rule 15 CPC, particularly after its amendment, stipulates that every pleading shall be verified 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 of the case. The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. Furthermore, Sub-rule (4) of Order VI Rule 15, introduced by the CPC (Amendment) Act, 1999, states that the person verifying the pleading shall also furnish an affidavit in support of his pleadings.

The Supreme Court in Salem Advocate Bar Association, T.N v. Union Of India (I)[1] observed that the requirement of filing an affidavit with pleadings imposes an additional responsibility on the deponent to ensure the truthfulness of the statements, thereby enhancing the integrity of the pleadings, although the affidavit itself may not be treated as evidence for the purpose of the trial in all circumstances. The Delhi High Court in M/S. Ranjit Construction Co. Ltd. v. National Highways Authority Of India And Another[10] emphasized the duty of a party filing a petition to make true, correct, and accurate statements, distinguishing between averments based on personal knowledge and those based on information and belief, with the latter requiring disclosure of the source. An affidavit is a mode of placing evidence and must comply with the CPC.[10]

The Delhi High Court in OIL AND NATURAL GAS CORPORATION LIMITED v. JOINT VENTURE OF M/S SAI RAMA ENGINEERING ENTERPRISES (SREE) & M/S MEGHA ENGINEERING & INFRASTRUCTURE LIMITED (MEIL)[7] further clarified that a Statement of Truth accompanying a petition or application, sworn by the deponent, must be signed after the petition is made, and attestation must also be done when the petition is filed. The petition needs to be signed by both the advocate and the party. Absence of such basic documents or signatures can lead to the filing being termed a mere 'bunch of papers' rather than a petition.[7] Echoing the need for diligence, the Orissa High Court in Thabir Sagar v. State Of Odisha Opposite Party.[14] warned that "slipshod verifications" might lead to rejection of the affidavit and stressed that verifications should be modeled on Order XIX Rule 3 CPC, clearly disclosing sources of information not based on personal knowledge. This principle was supported by citing Supreme Court judgments including A.K.K. Nambiar v. Union Of India And Another.[6]

Specific Contexts Requiring Affidavits

While general procedural law underscores the need for verified pleadings, certain specific statutes or types of proceedings impose more stringent, often mandatory, requirements for affidavits.

Election Petitions under the Representation of the People Act, 1951

The Representation of the People Act, 1951 (RPA) provides a specialized framework for the adjudication of election disputes. Section 83(1)(c) of the RPA mandates that an election petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings. Crucially, the proviso to Section 83(1) stipulates that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form (Form 25 under the Conduct of Election Rules, 1961) in support of the allegation of such corrupt practice and the particulars thereof.

The Supreme Court in G.M Siddeshwar v. Prasanna Kumar[2] clarified that there is no statutory mandate under the RPA requiring an election petitioner to file an *additional* affidavit as per Order VI Rule 15(4) CPC if the Form 25 affidavit for corrupt practices is already filed. The Court also held that minor defects in the format or verification of the Form 25 affidavit are curable. However, the absence of the requisite affidavit when alleging corrupt practices can be fatal. In Ram Sukh v. Dinesh Aggarwal,[3] the Supreme Court upheld the dismissal of an election petition due to, inter alia, the absence of the mandatory affidavit supporting allegations of corrupt practices, terming it a fatal defect. This aligns with the principle that an election petition must contain a concise statement of material facts.

The Court in F.A Sapa And Others v. Singora And Others[4] recognized that an affidavit forms an integral part of an election petition, and allegations of corrupt practices, being quasi-criminal in nature, demand strict compliance. Nevertheless, it was held that minor defects in verification could be remedied. A clear distinction must be maintained between material facts (facta probanda) and particulars (facta probantia). The necessity for detailed material facts was underscored in Hardwari Lal v. Kanwal Singh,[5] where an election petition alleging corrupt practices under Section 123(7) RPA was found insufficient for want of specific details regarding the assistance procured from government servants.

The Bombay High Court in Ashok Tapiram Patil A.T Nana Patil v. Gurumukh Mehrumal Jagwani & Ors.[17] reiterated that the proviso to Section 83(1) RPA is mandatory, and a petition alleging corrupt practices without the prescribed affidavit is incomplete. Filing such an affidavit after the expiry of the limitation period was deemed impermissible. Similarly, the Gauhati High Court in Takam Sorang v. Markio Tado & Ors.[22] held that an election petition not accompanied by an affidavit in Form 25 is liable to be dismissed at the threshold, and such a defect, if the affidavit is filed post-limitation, is not curable. Conversely, in AJAY ARJUN SINGH v. SHARADENDU TIWARI AND ORS,[9] the Supreme Court noted the petitioner's assertion of having filed the necessary affidavit and the submission of willingness to cure any defect, indicating a more flexible approach where compliance is substantially met or defects are minor and rectifiable within the procedural framework.

Other Specific Proceedings

The requirement for affidavits extends beyond election petitions. In Lokendra Singh v. State Of U.P. And 2 Others,[19] an election petition under the U.P. Panchayat Raj Act, 1947, was initially rejected by the Election Tribunal for not being accompanied by an affidavit as per Order VI Rule 15(4) CPC, deeming it a non-curable defect. However, the revisional court allowed the revision, noting that an affidavit was subsequently filed and affirmed the contents, thereby remanding the matter. This illustrates the ongoing judicial consideration of whether such an omission is fatal or curable.

In writ proceedings, the practice of filing affidavits is also well-established. The Madras High Court in M. Sampath v. State Of Tamil Nadu[12] discussed the long-standing practice in that court of including the prayer of the petitioner in the affidavit filed in support of a writ petition, although the counsel in that case had deviated from this practice. The court noted Rule 2 of the rules framed by the High Court under Article 225 of the Constitution for regulating proceedings under Article 226.

Even in service matters, where allegations such as mala fides are made, they must be substantiated, typically through affidavits. In A.K K. Nambiar v. Union Of India And Another,[6] the appellant's challenge to a suspension order on grounds of mala fides failed as the appellant could not prove such intent, highlighting the evidentiary burden that affidavits help discharge.

Consequences of Filing a Petition Without a Requisite Affidavit

The legal consequence of filing a petition without a necessary affidavit varies significantly depending on the nature of the proceeding, the specific statutory mandate, and the character of the omission.

Non-est Filing versus Curable Defects

A critical distinction is drawn between filings that are fundamentally defective (non-est) and those with curable procedural irregularities. The Delhi High Court in OIL AND NATURAL GAS CORPORATION LIMITED[7] opined that if basic documents like a Statement of Truth or required signatures are absent, the filing may be considered a mere 'bunch of papers'. However, perfunctory defects, such as illegible documents or improper margins, are generally curable and do not render the petition non-est. This was starkly illustrated in Sravanthi Infratech Private Limited Petitioner v. Greens Power Equipment (China) Co. Ltd. S,[20] where a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, without a vakalatnama, without an affidavit, and without the signature of the party, was considered a fatal defect, and the filing could "hardly be considered a proper filing," especially when coupled with delays beyond the limitation period.

Conversely, some omissions are treated as curable. In R. Kanthimathi & Others v. Bank Of India, Dharmapuri Branch By Its Senior Manager, Dharmapuri,[21] a complaint under Section 138 of the Negotiable Instruments Act, 1881, was filed with a delay, but the application for condonation of delay was not initially accompanied by an affidavit setting out reasons. The Madras High Court held this to be a curable defect, allowing the complainant to file an affidavit subsequently. The case of Shri Anil Umrao Gote v. Shri Rajwardhan Raghujirao Kadambonde Rajubaba[8] dealt with defects in the *copy* of an affidavit served upon the respondent in an election petition, such as the absence of the affirming authority's details and seal, which points towards issues in proper service and compliance rather than a complete absence of an original affidavit.

Dismissal of Petition

Where an affidavit is statutorily mandated as an integral part of the petition, its absence, particularly if not rectified within the period of limitation or if the defect is considered fundamental, can lead to the dismissal of the petition. As discussed earlier, in the context of election petitions alleging corrupt practices, the Supreme Court in Ram Sukh v. Dinesh Aggarwal[3] and the High Courts in Ashok Tapiram Patil[17] and Takam Sorang[22] have affirmed dismissals for non-compliance with the mandatory affidavit requirement under Section 83 RPA.

The Nature, Purpose, and Proper Form of Affidavits

The judiciary has consistently emphasized the solemnity and importance of affidavits. As noted in Salem Advocate Bar Association (I),[1] they enhance the integrity of pleadings by imposing responsibility on the deponent. An affidavit serves as a mode of placing evidence before the court and must be truthful, correct, and accurate.[10] The deponent must clearly distinguish between facts based on personal knowledge and those based on information and belief, disclosing the source of the latter.[10]

The very definition of an affidavit implies a formal process of affirmation. In Miscellany Marketers Pvt. Ltd. v. Sun-N-Sand Hotel Pvt. Ltd.,[15] the Bombay High Court held that a document not affirmed before a competent officer by administering an oath cannot be termed an affidavit. Affirmation is not an empty formality, as it subjects the deponent to potential prosecution for false statements.[15] The Patna High Court in Ramchandra Modak v. King-Emperor[11] stated that an application not properly sworn or affirmed cannot be used in court concerning the facts stated therein, as per the High Court Rules.

Proper attestation is also crucial. The Karnataka High Court in V.R Kamath v. Divisional Controller[13] observed that courts will not act on defective affidavits not attested in the manner required by law. It highlighted the need for Oath Commissioners/Notaries to follow rules regarding attestation, including recording transactions in their registers and noting relevant details on the affidavit itself.

Procedural Aspects and Judicial Approach

Verification and Attestation

Order XIX Rule 3 CPC provides the foundational rule for the content of affidavits: they should be confined to facts the deponent can prove from personal knowledge, except for interlocutory applications where statements of belief are permissible if grounds are stated. The Orissa High Court in Thabir Sagar[14] reiterated the importance of adhering to this, with clear disclosure of information sources. The directions in V.R Kamath[13] concerning proper attestation by authorized personnel further underscore the procedural rigor expected.

Opportunity to Cure Defects

The judiciary generally leans towards substance over form, allowing parties to cure procedural defects, provided such defects are not fatal or do not contravene mandatory statutory provisions in a way that prejudices the opposing party or goes to the root of the jurisdiction. The Supreme Court in G.M Siddeshwar[2] and F.A Sapa[4] affirmed that minor defects in affidavits in election petitions are curable. The willingness of a petitioner to cure defects, as noted in AJAY ARJUN SINGH,[9] can also be a factor. The Madras High Court in R. Kanthimathi[21] and the Allahabad High Court in Lokendra Singh[19] (in revision) also reflect this approach of allowing curable defects related to affidavits to be rectified. However, this leniency often does not extend to the non-filing of a statutorily mandatory affidavit within the prescribed limitation period, especially where such an affidavit is foundational to the cause of action, as seen in election cases involving corrupt practices.[17], [22]

Role of Advocate's Clerk in Swearing Affidavits

An interesting procedural point arose in Shri Someswar Gogoi v. State Of Assam And Others,[16] where the Gauhati High Court held that an advocate's clerk could swear an affidavit on behalf of the petitioner if the advocate, in discharging his "legal business," is satisfied that this meets the requirements of the law. This was distinguished from older precedents under the Specific Relief Act, 1877, which had stricter requirements regarding the deponent.

Disposal of Petitions Without Calling for Affidavits

In certain circumstances, particularly in writ jurisdiction where urgent directions are sought or the matter can be disposed of based on limited legal submissions without extensive factual disputes, courts may proceed without calling for affidavits from the respondents. In Md. Nur Alam Dafadar v. The Union Of India & Ors.,[18] the Calcutta High Court disposed of a writ petition by directing the respondent authority to consider a representation, clarifying that since the petition was disposed of without calling for an affidavit, all allegations in the writ petition were deemed to have been denied. This is a pragmatic approach often adopted to expedite justice in appropriate cases.

Conclusion

The requirement of an affidavit in support of a petition is a significant procedural safeguard in the Indian legal system, designed to ensure the authenticity and veracity of pleadings and allegations. While the general rule under the CPC, as amended, points towards furnishing an affidavit with pleadings, specific statutes like the Representation of the People Act, 1951, impose mandatory requirements, particularly when grave allegations such as corrupt practices are leveled.

The consequence of filing a petition without an affidavit is not uniform; it ranges from being a curable defect to a fatal flaw warranting dismissal. The judiciary distinguishes between a complete absence of a statutorily mandated affidavit (especially if not filed within limitation) and a defect in an affidavit that has been filed. Courts often adopt a pragmatic approach, allowing curable defects to be rectified to serve the ends of justice, reflecting the principle that procedural laws are handmaids of justice. However, where the affidavit is foundational to the petition's maintainability or is explicitly mandated by statute as a condition precedent, its absence can be fatal. The jurisprudence underscores a careful balance between procedural compliance and substantive justice, with an overarching emphasis on the integrity of the judicial process, which affidavits significantly help to uphold.

References

  1. Salem Advocate Bar Association, T.N v. Union Of India . (2005 SCC 6 344, Supreme Court Of India, 2005)
  2. G.M Siddeshwar v. Prasanna Kumar . (2013 SCC 4 776, Supreme Court Of India, 2013)
  3. Ram Sukh v. Dinesh Aggarwal . (2009 SCC 10 541, Supreme Court Of India, 2009)
  4. F.A Sapa And Others v. Singora And Others (1991 SCC 3 375, Supreme Court Of India, 1991)
  5. Hardwari Lal v. Kanwal Singh . (1972 SCC 1 214, Supreme Court Of India, 1971)
  6. A.K K. Nambiar v. Union Of India And Another (1969 SCC 3 864, Supreme Court Of India, 1969)
  7. OIL AND NATURAL GAS CORPORATION LIMITED v. JOINT VENTURE OF M/S SAI RAMA ENGINEERING ENTERPRISES (SREE) & M/S MEGHA ENGINEERING & INFRASTRUCTURE LIMITED (MEIL) (Delhi High Court, 2023)
  8. Shri Anil Umrao Gote v. Shri Rajwardhan Raghujirao Kadambonde Rajubaba . (Bombay High Court, 1995)
  9. AJAY ARJUN SINGH v. SHARADENDU TIWARI AND ORS (Supreme Court Of India, 2016)
  10. M/S. Ranjit Construction Co. Ltd. v. National Highways Authority Of India And Another (Delhi High Court, 2003)
  11. Ramchandra Modak v. King-Emperor (Patna High Court, 1925)
  12. M. Sampath v. State Of Tamil Nadu (Madras High Court, 1989)
  13. V.R Kamath v. Divisional Controller (Karnataka High Court, 1997)
  14. Thabir Sagar v. State Of Odisha Opposite Party. (Orissa High Court, 2021)
  15. Miscellany Marketers Pvt. Ltd. v. Sun-N-Sand Hotel Pvt. Ltd. . (Bombay High Court, 2009)
  16. Shri Someswar Gogoi v. State Of Assam And Others (Gauhati High Court, 1988)
  17. Ashok Tapiram Patil A.T Nana Patil v. Gurumukh Mehrumal Jagwani & Ors. (2006 SCC ONLINE BOM 1101, Bombay High Court, 2006)
  18. Md. Nur Alam Dafadar v. The Union Of India & Ors. (2017 SCC ONLINE CAL 7750, Calcutta High Court, 2017)
  19. Lokendra Singh v. State Of U.P. And 2 Others (Allahabad High Court, 2023)
  20. Sravanthi Infratech Private Limited Petitioner v. Greens Power Equipment (China) Co. Ltd. S (2016 SCC ONLINE DEL 5645, Delhi High Court, 2016)
  21. R. Kanthimathi & Others v. Bank Of India, Dharmapuri Branch By Its Senior Manager, Dharmapuri (2007 SCC ONLINE MAD 443, Madras High Court, 2007)
  22. Takam Sorang v. Markio Tado & Ors. (Gauhati High Court, 2012)