Notaries Empowered To Attest Affidavits For Writ Proceedings Before High Court: Jammu & Kashmir HC

Single bench of Justice Sanjay Dhar rejected the preliminary objection raised by private respondents, arguing that affidavit accompanying a writ petition has to be attested by the Oath Commissioner only. It held,

“Rule 181 of the High Court Rules makes the provisions of Section 139 of the Code of Civil Procedure applicable to affidavits intended to be used in the High Court. Thus, a Notary appointed under the Notaries Act is empowered to attest an affidavit which is intended to be used in the High Court.”

Section 139 CPC empowers any Court or Magistrate, or any notary appointed under the Notaries Act, or any officer appointed by the High Court in this behalf, or any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent.

Background

The petitioner had filed a writ petition challenging an order passed by Financial Commissioner in an appeal filed by the private respondents against him. The private respondents contended that the affidavit in support of the writ petition, attested by a Notary, was not in accordance with the law, and the petitioner being an undertrial prisoner, it would have been improbable for the Notary to administer oath inside the jail.

The counsel appearing for the petitioner, on the other hand, submitted that even an affidavit supporting a writ petition that has been attested by a Notary is still legally valid. The counsel further argued that before obtaining the signatures of the petitioner on the petition and the affidavit, proper permission was granted by the Court of 1st Additional Sessions Judge, Baramulla, in terms of its order dated 27.05.2023, as such, the objection raised by learned counsel for the private respondents was without any substance.

After considering the contentions raised, Justice Dhar analyzed the relevant provisions of the Jammu & Kashmir High Court Rules and the Code of Civil Procedure and noted that Rule 181 of the High Court Rules when read with Section 139 CPC, which authorizes notaries to administer oaths on affidavits, it is clear that affidavits attested by Notaries could be used in High Court proceedings.

“…An affidavit intended for use in the High Court may be sworn before any Court or Magistrate, a Notary, an Oath Commissioner appointed by the High Court, or any other officer appointed by any other Court which the State Government has generally or specifically empowered in this behalf. So, any affidavit attested by any of the aforesaid authorities is legally permissible for its use in the High Cout”, the bench highlighted.

In order to address the contention with regard to the petitioner's ability to sign the affidavit while in jail, the Court relied on Sessions Court's order granting permission to the petitioner to sign the documents, including the affidavit. The Notary had certified that the petitioner had presented the affidavit before him, and he had administered the oath, leading the Court to presume the validity of the affidavit.

“The Notary has certified that the petitioner, who has been identified by a police officer, presented the affidavit before him and that he administered oath to him. There is a presumption of correctness attached to the aforesaid act of the Notary. It cannot be stated that the Notary had not visited the jail for the purposes of attestation of affidavit once he has certified that the deponent had presented the affidavit before him and he had administered oath to him”, the court reasoned.

Lastly, expressing its concern over the difficulties faced by undertrial prisoners and jailed convicts in securing the services of a Notary or an Oath Commissioner inside the jail, Justice Dhar suggested the High Court to consider granting powers of Oath Commissioners to jail officials as a similar practice has been adopted by the Allahabad High Court.

Case Title: Abdul Rashid Bhat Vs Finanacial Commissioner

Citation: 2023 LiveLaw (JKL) 208

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