High Court of Karnataka rejected a writ petition challenging a trial court order admitting an affidavit not sworn under Section 139 CPC when the witness subsequently swears on oath in court, held to cure the defect under Section 7 of Oaths Act 1969.
Writ petition stands rejected and dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON’BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.17363/2023 (GM-CPC)
BETWEEN:
2
...PETITIONERS
(BY SRI: X.M. JOSEPH, ADVOCATE)
AND:
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W/O SRI A LIGOURY D’MELLO RESIDING AT P.O.BOX.57 P.C.328, TECHNOFIT TRADING LL.C., AL RUMIAS, BARKHA, SULANTATE OF OMAN
….RESPONDENTS
(BY SRI: P.N. MANMOHAN, ADVOCATE FOR C/R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE COMMERCIAL ORIGINAL SUIT NO.352 OF 2020 PENDING ON THE FILE OF THE LEARNED LXXXIX ADDITION AL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-90) AND SET ASIDE ANNEXURE-F, THE ORDER DTD27.06.2023 PASSED BY THE LEARNED LXXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-90) IN COMMERCIAL O.S.NO.352 OF 2022 AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 14/12/2023 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
The petitioners, defendants in
Com.O.S.No.352/2020 on the file of LXXXIX Additional
City Civil and Sessions Judge, Bengaluru are before this
Court, aggrieved by order dated 27.06.2023 rejecting
I.A.No.14 filed under Sections 148 and 151 of CPC
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praying to reject/discard the affidavit evidence of plaintiff tendered through plaintiff No.2; and to declare the act of respondents i.e. plaintiffs in introducing additional documents through Annexure-F (I.A.No.13 dated 20.03.2023) without leave of the Court as illegal.
petitioners/defendants and learned counsel Sri.P.N. Manmohan for respondents/plaintiffs. Perused the writ petition papers.
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affidavit evidence dated 18.01.2023 of plaintiff No.2 said to have been sworn before the Assistant Consular Officer, Embassy of India, Muscat. Thereafter, on 20.03.2023, the plaintiffs/respondents herein filed I.A.No.13 to produce original/certified copies of documents. On 20.03.2023, plaintiff No.2/P.W.1 appeared before the Court and has sworn before the Presiding Officer, thereafter marked the documents in her further examination-in-chief. When the suit was set down for cross-examination, on 03.06.2023, the petitioners/defendants filed I.A.No.14 under Sections 148 and 151 of CPC to reject/discard the affidavit evidence of plaintiff tendered through plaintiff No.2. The plaintiffs filed their objections to the said I.A. and prayed to dismiss I.A.No.14. The trial Court, under impugned order dated 27.06.2023 dismissed I.A.No.14 rejecting contentions of the petitioners/defendants.
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RASIKLAL MANIKCHAND DHARIWAL v/s M.S.S. FOOD PRODUCTS reported in (2012) 2 SCC 196 would submit that the Hon'ble Apex Court has made it clear that, where the examination-in-chief of a witness is produced in the form of affidavit, such affidavit is always sworn before the Oath Commissioner or the Notary or Judicial Officer or any other person competent to administer oath. It is submitted that since the affidavit of plaintiff No.2 filed before the Court on 23.01.2023 is not a sworn affidavit, the Court could not have accepted the same.
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administered by any one of the authorities stated therein, the Court could not have accepted such an affidavit.
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person, subsequently P.W.1/plaintiff No.2 entered the witness box and has sworn before the Presiding Officer on 20.03.2023. Further, he invites attention of this Court to Annexure-G to submit that P.W.1 verified and confirmed the affidavit in lieu of examination-in-chief on entering witness box and stated that contents of the affidavit are true to the best of her knowledge and information. It is submitted that when the witness enters witness box and confirms the contents of the affidavit on oath, if there is any defect in the affidavit, the same would get cured. In that regard, learned counsel Sri.Manmohan places reliance on Section 7 of the Oaths Act, 1969. Learned counsel would also place reliance on the decision of Bombay High Court reported in (2010) 1 Mh.L.J. 397 MISCELLANY MARKETING PVT. LTD. v/s SUN-N-SAND HOTEL PVT. LTD . ( A.S.Oka J., as he then was ) to submit that when the witness stepped into witness box and on oath
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he states that the contents of the affidavit in lieu of examination-in-chief were correct, what is stated in the affidavit becomes examination-in-chief and forms part of evidence of the said witness. The defects on oath or affirmation if any, gets cured.
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suffers from any material irregularity so as to warrant interference under Article 227 of the Constitution of India.
DHARIWAL (supra) while considering Order XVIII Rules 2, 4 and 5 of CPC has held that where the examinationin-chief of a witness is produced in the form of an affidavit, such affidavit is always sworn before the Oath
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Commissioner or the Notary or Judicial Officer or any other person competent to administer oath.
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“8. It is always stated that the procedure is a handmaid of justice. In the present case, the witness concerned stepped into witness box and on oath he stated that the contents of the affidavit in lieu of examination-in-chief were true and correct. The learned trial Judge as well as the parties proceeded on the footing that the affidavit tendered by the
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witness was duly affirmed before the concerned officer. As held by this Court in the case of FDC, such affidavit can be treated as an evidence only after the examination of the witness is made on oath and the witness deposes that the contents of the affidavit are true and correct. In the examination on oath of the said witness recorded before the Court, he was shown the said affidavit and he stated that the contents thereof were true and correct. In view of the recording of the examination-in-chief of the witness, what is stated in the affidavit tendered on 11th April, 2009 becomes the examination-in-chief and forms part of the evidence of the said witness. The defects of non-signing and not getting the said affidavit affirmed before the learned trial Judge or before any other officer empowered to administer oath stand cured by the examination on oath of the said witness on 11th April, 2008. In this connection, it will be necessary to refer section 7 of Oath Act which reads thus:
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“7. Proceedings and evidence not invalidated by omission of oath or irregularity. — No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”
9. In a case where an affidavit in lieu of examination-in-chief of a witness taken on record by the Court is found to be defective on account of failure to affirm it before the concerned officer, by exercising inherent power under section 151 of the said Code, the trial Court can always allow the defect to be cured by permitting the affirmation to be made subsequently. In the present case, by virtue of examination-in-chief of the said
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witness on oath before the Court and by virtue of the statement on oath that what was stated in the affidavit is true and correct, it cannot be said that the said affidavit continues to be defective by virtue of failure of the witness to affirm the same before an officer who is empowered to administer the oath.”
The above decision makes it abundantly clear that defect of non-affirmation on oath would get cured, once the witness enters the witness box and on oath states that contents of the affidavit in lieu of examination-inchief were true and correct.
“ 7. Proceedings and evidence not invalidated by omission of oath or irregularity: - No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which
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it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”
24. This Court in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] has categorically held that the main purpose of administering of oath is to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further such matters only
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touch credibility and not admissibility. However, in view of the provisions of Section 7 of the Oaths Act, 1969, the omission of administration of oath or affirmation does not invalidate any evidence.
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the copies of documents were produced at the time of filing the plaint as required under the Commercial Courts Act and certified copies of documents are produced. Further, the affidavit also discloses that some of the documents were marked in PCR No.12156/2020 which is numbered as C.C.No.30214/2022 and obtaining certified copy of those documents, they have produced along with I.A.No.13. I do not find any error in accepting the documents enclosed to I.A.No.13.
Sd/JUDGE
mpk/-* CT:bms
3 issues framed by the court
Whether the defect of the affidavit of P.W.1 not being sworn as per Section 139 CPC is cured when the witness swears on oath before the Court confirming the affidavit contents.
Whether there was any error in the trial court accepting documents produced along with an application for permission to introduce additional evidence.
Whether the impugned order under Article 227 is perverse or suffers from material irregularity warranting interference.
Colour shows how this judgement treated each authority
Rasiklal Manikchand Dhariwal vs M.S.S. Food ProductsExplained¶12
(2012) 2 SCC 196 · Who else cites this
Miscellany Marketing Pvt. Ltd. vs Sun-N-Sand Hotel Pvt. Ltd.Referred¶49
(2010) 1 Mh.L.J. 397 · Who else cites this
State of Rajasthan vs. Darshan Singh Alias Darshan LalExplained¶16
(2012) 5 SCC 789 · Who else cites this
4 provisions across 3 enactments
Shiva Prakash Girish
Venkata Suresh Reddy Birudavolu
Valleru Saritha
Venugopalachary Munaganti
Gorthi Vidya Sagar
Smt. Divya Girish
S.G. Pandit
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
