WP-8356-2016 (SMT. KAUSHALYA DEVI Vs DURGADAS) 10-05-2016 Shri Ambuj K. Dwivedi, learned counsel for the petitioner.
Heard.
Petitioner is aggrieved by order dated 26.2.2016 whereby the application of respondents/plaintiffs filed under Order 6 Rule 17 of the Code of Civil Procedure is allowed by court below.
Criticizing this order, learned counsel for the petitioner advanced two fold contentions. Firstly, it is urged that along with the amendment application, an affidavit has not been filed. Hence, as per the judgment of Supreme Court reported in Salem Advocate Bar Assn. Vs. Union of India (2005) 6 SCC 344, the order is liable to be interfered with. He has also placed reliance on the judgments rendered in the cases of Shri Yumnam Ibobi Singh and Ors. Vs. Shri Yumnam Yaima Singh and Ors. reported in (1992) 2 Gau LR 406 and Anjum Kausar Khan Vs. Rashidan, reported in (2006) 6 All LJ 202.
It is apt to quote paragraph 4 of the judgment of Salem (supra), which reads as under: "4. Prior to insertion of the aforesaid provisions, there was no requirement of filing affidavit with the pleadings.
These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order 6 Rule 15(4)].
It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. We are unable to agree. The affidavit required to be filed under amended Section 26(2) and Order 6 Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof." (E.S.) The other judgments cited by petitioner are based on the judgment of Salem (supra) and no different view has been taken in subsequent cases. The underlined portion of the judgment nowhere shows that there is any requirement of filing of affidavit along with the amendment application. As per the judgment, on amendment of the pleadings, a fresh affidavit must be filed. Thus, I am unable to agree with the contention advanced by the petitioner. However, it will be lawful for the court below to direct the plaintiffs to file fresh affidavit on amendment of the pleadings.
The second contention is based on Order 19 Rule 3 of the Code of Civil Procedure. A plain reading of this provision makes it clear that it nowhere prescribes that affidavit must be filed along with the amendment application.
There is no jurisdictional error in the impugned order and no procedural impropriety or perversity is established. Hence, no case is made out for interference of this court. The petition fails and is hereby dismissed.
(SUJOY PAUL) JUDGE
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