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Consolidated Foods Corporation Vs. Brandon and Co. Private Ltd - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J. Miscellaneous Petition No. 208 of 1960
Judge
Reported in(1960)62BOMLR799
AppellantConsolidated Foods Corporation
RespondentBrandon and Co. Private Ltd
Excerpt:
civil procedure code (act v of 1908), order vi, rules 1 & 15(2); order xix, rule 3-rules of the high court of bombay (original side), 1957, chap. xxxii, rule 3-basic requirements of verifications of pleadings and contents of affidavits-application de by petition to comply with requirements about contents, signing and verification of pleading as provided in order vi-person verifying, in petition or pleading, statements in part of paragraph as true to his own knowledge and rest of statements upon information and belief-how such verification to be made-statements made in affidavit in support on information and belief, how to be made-practice.;in proceedings where the application is to be made by a petition under the rules framed by the high court applicable on its original side, the..........petitioners. mr. shah has stated in the verification clause that what is stated in the petition is stated on information received which he believed to be true. the affidavit in support of the petition also has been sworn by mr. r.a. shah. that affidavit is a very short one consisting of three small paragraphs, two of which are material and are as follows:1. i am the duly constituted attorney of the petitioners above named and have been in charge of the proceedings in connection with the oppositions by the petitioners to the application of the respondents.2. i have read the petition of the petitioners which was solemnly affirmed by me on the 21st day of the june 1960 and i confirm the statements and submissions made therein.2. before dealing with this point i think it necessary to make.....
Judgment:

Mody, J.

1. His Lordship after dealing with the question whether the petition was barred by limitation, proceeded. Another point raised by Mr. Shah as a preliminary point was based on the provisions of Rule 3 of Chap. XXXII. of the Rules of this High Court applicable on its Original Side, The Rules in Chap. XXXII have been framed under Section 110 of the Trade and Merchandise Marks Act, 1958. The said Rule 3 provides that all appeals under the said Act shall be by way of a petition supported by an affidavit. In this case the petitioners have filed a petition and also an affidavit in support. Mr. Shah, however, contended that this affidavit is not a proper affidavit, that the said Rule 3 has not been complied with and the petition should, therefore, be dismissed. The petition has been signed and verified by Mr. R.A. Shah, a solicitor of this Court, as the duly constituted attorney of the petitioners. Mr. Shah has stated in the verification clause that what is stated in the petition is stated on information received which he believed to be true. The affidavit in support of the petition also has been sworn by Mr. R.A. Shah. That affidavit is a very short one consisting of three small paragraphs, two of which are material and are as follows:

1. I am the duly constituted attorney of the Petitioners above named and have been in charge of the proceedings in connection with the Oppositions by the Petitioners to the Application of the Respondents.

2. I have read the Petition of the Petitioners which was solemnly affirmed by me on the 21st day of the June 1960 and I confirm the statements and submissions made therein.

2. Before dealing with this point I think it necessary to make certain observations concerning a point of practice which is of general importance. The Rules framed by this High Court applicable on its Original Side provide for a considerable number of applications being made by a petition with an affidavit in support. Now both the petition and the affidavit in support are documents on oath and are generally prepared and filed at the same time and sworn by the same individual. I have, however, found that a very large number of practitioners have unfortunately not appreciated why our Rules require an affidavit in support to be filed along with and in addition to the petition. The result has been that the affidavit in support very often contains but one single sentence to the effect that the deponent states that what is stated in the petition is correct or that the deponent repeats and confirms the statements and submissions madein the petition. Now the correct position is that in proceedings where the application is to be made by a petition, the petition takes the place of the plaint in the proceedings by way of a suit. The petition must be deemed to be a pleading as defined byo. VI, Rule 1, of the Code of Civil Procedure and must comply with the requirements about the contents, signing and verification of a pleading as contained in the said Order VI. As regards the verification of the petition, the provisions of 0.VI, Rule 15, must be complied with. Sub-rule (2) of the said Rule 15 provides that 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. In this connection I may observe that in verifications of petitions and also of pleadings the provisions of this Sub-rule (2) are frequently complied with in the letter but not in the spirit thereof. A practice has grown up to state in the verification that what is stated in a part of a particular paragraph or paragraphs of the' petition or pleading is true to the deponent's own knowledge and that the other statements contained in that particular paragraph or paragraphs have been made upon information and that the deponent believes the same to be true. When the person verifying verifies the statements in a part of a paragraph as true to his own knowledge and the rest of the statements in the same paragraph upon information and belief, the respective parts must be so referred to that the same can be clearly identified, as otherwise it would by impossible to know which particular statement or statements are verified as true to his own knowledge and. which only on information and belief. Coming back to the requirements of a petition, it would be improper to set out in the petition the evidence of the petitioner. In the matter of petitions, however, the recording of oral evidence is an exception and not a rule. A petition is normally disposed of only on affidavits unless on the facts and circumstances of a case the Court directs that oral evidence be recorded. It is, therefore, that a petition, is required to be supported by an affidavit. It is in the affidavit in support that the petitioner should set out his evidence in support of the statements in the petition as it would be improper to set out such evidence in the petition itself. The affidavit in support must however comply with the requirements of Order XIX, Rule 3. I regret to find, that the following observations of the Supreme Court in The Stale of Bombay v. Purushottam Jog Naik : 1952CriLJ1269 , are not being borne in mind and complied with, the said observations being (p. 681) :-

We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verifications should invariably be modelled on the lines of Order XIX, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins C.J. and Woodroffe J. in Padmabati Dasi v. Rasik Lal Dhar and endorse the learned Judges' observations'. It is useful to reproduce here the relevant paragraph from the judgment in the said case of Padmabati Dasi v. Rasik Lal Dhar : 1952CriLJ1269 :We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be safe to act on the deponent's belief

It is clear that when statements are made in an affidavit on information and belief 'the sources of information should he clearly disclosed' and the grounds of the belief also must be stated 'with sufficient particularity to enable the Court to judge whether it would be safe to act on the deponent's belief'. These are but the basic requirements of verifications of pleadings and the contents of affidavits and care must be taken, to comply with the same.

3. Now, the affidavit in the instant case merely states that the deponent confirms the statements and submissions made in the petition. The deponent of this affidavit has himself verified, the petition and from the verification it is clear that all the statements in. the petition are verified on information and belief and none on personal knowledge. The confirmation in the affidavit of the statements in the petition is only on information. No attempt whatever has been made to disclose the sources of such information nor to state the grounds of the deponent's belief of such information. The affidavit is, therefore, wholly defective. I may further point out that it was unnecessary to confirm in the affidavit the submissions contained in the petition. Submissions are but arguments; they are but the inferences as to facts or the contentions as to law which the party submits the Courts should accept. Repetition or confirmation of such submissions contained in the petition are unnecessary in, if not inappropriate to, an affidavit. Although the affidavit in support is defective and Mr. Shah's contention is correct, I do not propose to dismiss this petition on that ground as such affidavits, though wholly improper and unjustified, have unfortunately become quite common. In this case moreover Mr. Shavaksha stated across the Bar that this petition is merely by way of an appeal and that all the statements made in the petition are on information gathered from only the record of the case before the Registrar of Trade Marks. Of course, if that be so, it ought to have been so stated in the said affidavit.


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