Advocate's Clerks Cannot File Affidavits On Behalf Of Parties On Original Side : Orissa High Court

It has therefore directed its Registry to ensure that steps are taken forthwith to stop the practice of accepting such affidavits which form part of petitions/applications under the original jurisdiction of the Court.

"Given the fact that a clerk has no means of having any personal knowledge or belief with respect to the facts in an original petition, the question of him being permitted to file an affidavit does not arise…An advocate's clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed," a Single Bench of Justice SK Panigrahi has held.

The Judge observed that an affidavit is an affirmation of truth; a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents.

Thus, the very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the "best of his knowledge".

The Court explained,

"An affidavit is an accepted mode of placing evidence before the Court. A party uses an affidavit to prove a fact or facts before the Court. Perforce, such an affidavit should always be in accordance with the prescribed Rules.

The purpose underlying the Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief. This is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit, in the right perspective.

It is for this very reason that a party swearing an Affidavit must disclose as to what facts are true to his personal knowledge, information or belief. If the statement of fact is based on information, such source of information must be disclosed in the affidavit. An affidavit which does not comply with these provisions has no probative value and it is liable to be rejected.

An advocate's clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded."

In the case at hand pertaining to bail of an accused in a dacoity case punishable under Section 395 of IPC, the Bench noted that the affidavit accompanying the petition was filed by the advocate's clerk-incharge, said to be looking after the case on behalf of the petitioner.

"This Court fails to understand as to how an advocate's clerk can swear an affidavit claiming to be "looking after" a case before this Court in gross violation of the Orissa High Court Rules."

Significantly, Rule 4(iii) of the Orissa High Court Rules makes a specific exception in cases where Court exercises appellate powers, or powers of revision/ review. It provides that the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate's clerk.

"This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court. In such a situation, the advocate's clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made," the High Court has clarified.

It added,

"In all cases arising out of the original jurisdiction of the Court, including any other matter which does not fall under the categories expressly provided for in the proviso to Rule 4(iii), the question of an affidavit being filed by an advocate's clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted."

The Bench concluded with the following observations:

• An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge;
• In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;
• An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;
• If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate's Clerk may be accepted as per Rules; and
• Any affidavit not in complete compliance with the provisions shall not be relied upon or used.

Case Title: Thabir Sagar v. State of Odisha

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