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Smt. Anchi Vs. Balu Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1975CriLJ1991; 1975()WLN26
AppellantSmt. Anchi
RespondentBalu Ram
Cases Referred and Sitaram v. Gulabkanwar Criminal Revn. No.
Excerpt:
.....to give no importance to the affidavits filed by the parties because the question of possession in the case stood settled by unimpeachable documentary evidence. the defect unfortunately in the affidavits that were filed there is in regard not only to the taking of the oath because the learned magistrate has only said 'attested'.that can possibly be cured in view of the aforesaid section but a combined verification both based on knowledge as well as information derived does not distinguish the source on which the facts as affirmed in the affidavit have been drawn......by somebody whose signatures contain no seal, no designation much less any administration of oath. learned counsel for the parties do not dispute that such swearing in of the affidavits, if there was any swearing in, is not in accordance with the requirements of the oaths act, 1969 (act no. 44 of 1969). the schedule to the oaths act gives form no. 4 in regard to affidavits and it is time that adequate attention is paid to the drafting of affidavits.5. an attempt was made by mr. bapna learned counsel for the opposite party to say that the defect in the swearing in of the affidavits may be overlooked in view of the provisions of section 7 of the oaths act, 1969, mr. surolia contested the proposition. section 7 of the oaths act, 1969, corresponds to section 13 of the indian oaths act.....
Judgment:
ORDER

B.P. Beri, C.J.

1. Khasra No. 115 measuring 53 bighas l biswa situate in Murdakiya is the bone of contention between Smt. Anchi widow of Baxiram and Baluram alias Balmukand who claims to be the adopted son of Baziram. under Section 145, Criminal Procedure Code, The dispute is regarding half the share of this land. On August 17. 1971. an application was moved under Section 145, Criminal Procedure Code before the Sub-Divisional Magistrate, Ratangarh, by Smt. Anchi complaining that Balurara did not permit her to cultivate her share of the land and there was an apprehension of a breach of the peace. On August 28. 1971 the Station House Officer, Bhinvsar made a report and a preliminary order was drawn on September 16, 1971. The property was attached on that very day and the Tehsildar was appointed as a Receiver. The parties filed their written statements and also affidavits besides documentary evidence. The learned Sub-Divisional Magistrate by his order dated May 14, 1973, came to the conclusion on the basis of documentary evidence that it was Baluram who was in possession of the property in dispute. He, however, added that this conclusion of his was fortified by affidavits, A revision was taken by Mst. Anchi before the learned Additional Sessions Judge. Churu who examined the affidavits and the documentary evidence and placing great reliance on an admission of Smt. Anchi came to the conclusion that Baluram was in possession of half share which was in dispute of khasra No. 115. Smt. Anchi continues to be dissatisfied and she is before me in revision.

2. Mr. Surolia learned Counsel for the petitioner urges that the affidavits in this case both filed by Smt. Anchi and Baluram were not in accordance with law, because the verification as required by Order 19, Rule 3, Civil Procedure Code does not indicate the source of information. He further submits that the affidavits having been considered the judgements of both the Courts are vitiated and Section 7 of the Oaths Act, 1969 does not cure the defect as the form given in the schedule comes into function after the affidavit has been duly verified as required by Order 19, Rule 3, Civil Procedure Code. He placed reliance on a number of cases to which I shall presently refer.

3. Mr. Bapna however, submitted that the learned Sub-Divisional Magistrate clearly said that he wanted to give no importance to the affidavits filed by the parties because the question of possession in the case stood settled by unimpeachable documentary evidence. Therefore, even if the affidavits are ignored then too the possession of Baluram stands proved and there is no miscarriage of justice warranting any interference in the revisional jurisdiction. Placing reliance on Bobda v. Smt. Mangi 1970 Raj LW 76 the learned Counsel urged that a Division Bench of this Court also said that even if the affidavits are ignored because of the lacuna in the verification and the conclusion is otherwise supportable remand is not the proper remedy in an old case. He further submitted that civil litigation is already in progress between the parties and the decisions thereof so far have been in favour of Baluram.

4. The affidavit of Smt. Anchi has not been sworn in and the affidavits of Pemaram and Baluram and presumably the rejoinder affidavit of Smt. Anchi have all been attested by somebody whose signatures contain no seal, no designation much less any administration of oath. Learned Counsel for the parties do not dispute that such swearing in of the affidavits, if there was any swearing in, is not in accordance with the requirements of the Oaths Act, 1969 (Act No. 44 of 1969). The schedule to the Oaths Act gives form No. 4 in regard to affidavits and it is time that adequate attention is paid to the drafting of affidavits.

5. An attempt was made by Mr. Bapna learned Counsel for the opposite party to say that the defect in the swearing in of the affidavits may be overlooked in view of the provisions of Section 7 of the Oaths Act, 1969, Mr. Surolia contested the proposition. Section 7 of the Oaths Act, 1969, corresponds to Section 13 of the Indian Oaths Act of 1873. Section 7 reads as under:

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 pr 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. This section obviously says that any omission in the matter of taking oath or making affirmation or in the form thereof or any irregularity therein in the matter of administration of oath shall not be utilised for the purpose of rendering such evidence as inadmissible. This, section does not speak in regard to the terms in which the verification has to be made in an affidavit in accordance with Rule 49 of the Rajasthan High Court Rules, 1952, and Order 19, Rule 3, Civil Procedure Code. The defect unfortunately in the affidavits that were filed there is in regard not only to the taking of the oath because the learned Magistrate has only said 'attested'. That can possibly be cured in view of the aforesaid section but a combined verification both based on knowledge as well as information derived does not distinguish the source on which the facts as affirmed in the affidavit have been drawn.

6. Learned Counsel for the opposite party states that if these defects had been pointed out at the earlier stage of the proceedings there would have been no difficulty in correcting them. I am inclined to agree with him so far as his submission is concerned because all these discoveries about the defect in the affidavits are usually made by the counsel when they come up in revisional jurisdiction. The question, however, is could the Magistrate rely on such affidavits and decide the question of possession which is hotly contested between the parties The form of the verification is defective. The consistent view of this Court has been to give the parties an opportunity to rectify the error and let the matter be decided on merits. Learned Counsel says that in some cases this Court declined to remand the case for the correction of the form of verification. Those cases are governed by their own facts. Here, there is a dispute between a mother and a person who claims to be in an adopted son. The usual practice of this Court has been in cases : Manjitkaur v. Gurneksingh 1974 WLN 458 : 1975 Cri LJ 195 : Pritamsingh v. Ranjitsingh 1971 Raj LW 330 : 1972 Cri LJ 337 and Sitaram v. Gulabkanwar Criminal Revn. No. 56 of 1974 decided in 29-10-1974 (Raj) to afford an opportunity to the party and I do not wish to depart from the established practice. I know, it will mean lot of trouble and inconvenience to the parties but they have to thank themselves for the lack of care bestowed in the drafting of the affidavits in the first instance.

7. I therefore, accept this revision and reluctantly remand this case to the learned Magistrate who will give both the parties an opportunity to file fresh affidavits but only of the persons whose so-called affidavits are already on record, in proper form, and I wish to emphasise that the learned Magistrate would settle this chronic case within three months, I fix 12th March, 1975. for the appearance of the parties before the learned Magistrate.


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