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Upendranath Galowa Vs. Hemchandra Koley - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal160
AppellantUpendranath Galowa
RespondentHemchandra Koley
Excerpt:
- .....my knowledge.2. the registrar is of opinion that if this verification is to be treated as one on solemn affirmation under oh. 4, rule 1 (5), appellate side rules, it has to be stamped with a further court-fee of rs. 2. the application bears a court-fee of rs. 2 only. the learned advocate for the appellant contends that he has complied with the requirements of ch. 4, rule 1 (5) and that he is not required to put in a further court-fee of rs. 2, as the court-fee required under that rule has been put on the application. sub-clause (5) says:the facts stated in every application made to the high court shall be verified by solemn affirmation of the applicant or by any affidavit to be annexed to the application.3. it is argued on behalf of the appellant that an application, made in the form.....
Judgment:

1. In this case, respondent 2 died before the appeal was filed but after the preparation of the decree by the lower appellate Court. An application was filed along with the memorandum of appeal stating the fact and mentioning the heirs of the deceased respondent whose names were inserted in the memorandum of appeal. This application bears a verification in these words:

I....do hereby verify that the statements made above are true to my knowledge.

2. The Registrar is of opinion that if this verification is to be treated as one on solemn affirmation under Oh. 4, Rule 1 (5), Appellate Side Rules, it has to be stamped with a further court-fee of Rs. 2. The application bears a court-fee of Rs. 2 only. The learned advocate for the appellant contends that he has complied with the requirements of Ch. 4, Rule 1 (5) and that he is not required to put in a further court-fee of Rs. 2, as the court-fee required under that rule has been put on the application. Sub-clause (5) says:

The facts stated in every application made to the High Court shall be verified by solemn affirmation of the applicant or by any affidavit to be annexed to the application.

3. It is argued on behalf of the appellant that an application, made in the form which has bean used in this instance, in which the applicant state3 that the statements are true to his knowledge, is verified by solemn affirmation. We think that the rule cannot be read in that way. Under Order 6, Rule 15 (3), Civil P.C., there is no special form of verification. It says:

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.

4. The rule of the Court adds something to the verification, namely 'do hereby solemnly affirm and 'say': that we take to mean that the solemn affirmation should be made before a person who is entitled to verify the affirmation. The words 'to be annexed to the application' in Sub-rule (5) must be read both with 'solemn affirmation' and 'affidavit,' and the real difference between 'solemn affirmation' and 'affidavit' seems to be that the applicant is to solemnly affirm that the statements made in the petition are true to his knowledge, whereas in the case of an affidavit it may be sworn by any person acquainted with the facts of the case. Under Ch. 12, Rule 3, Appellate Side Rules, a court-fee of Rs. 2 is prescribed for 'swearing, affirming every affidavit,' thus indicating that there is some difference between swearing' and 'affirming.' It may be that solemn affirmation takes the form of an affidavit. Whether affirmed or not, the affidavit must bear a court-fee of Rs. 2 under that rule. We, accordingly, hold that the order of the Registrar is correct and a court-fee of Rs. 2 must be paid within three days from date. The court-fee may be affixed at the bottom of the application filed with the memorandum of appeal and solemnly affirmed.


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