TaxTMI 
TaxTMI 
2005 (10) TMI 584
X X X X Extracts X X X X
X X X X Extracts X X X X
....site party to the effect that an affidavit sworn before a Notary cannot be accepted in proceeding before this Court, therefore, it became necessary to dispose of this question as a preliminary issue first before dealing with the main issue. Thus, a question arises for consideration whether an affidavit sworn before the notary is admissible or can be presented in a proceeding before this Court or not? In this connection learned counsel for opposite party has drawn our attention to the various rules contained in Chapter IV of High Court Rules, which deals with affidavits and Oath Commissioners and submitted that in view of provisions contained in various rules set out in Chapter IV of the High Court Rules, the affidavits sworn before the Oath....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Police at Lucknow on whom powers of Oath Commissioner have been conferred can be presented before the Court without such coupons. Under Rule 9 it is provided that an affidavit shall fully describe the person swearing it with such particulars as will ensure his clear identification such as his full name, his age, the name of his father and place of residence in such a manner as to enable for its identity to be clearly fixed. Rule 10 provides that persons who may make affidavits. Rule 11 provides for form of affidavit. Rule 12 deals with facts to be within the deponent's knowledge or source to be stated. Rule 13 provides for identification of deponent. Rule 15 provides that the contents of the affidavit to be explained to deponent. Rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....court. 5. Besides this under Section 139 of Code of Civil Procedure the powers to administer oath on affidavits have been given to certain persons as under : 139. Oath on affidavit by whom to be administered.- In the case of any affidavit under this Code- (a) any Court or Magistrate, or (aa) any notary appointed under the Notaries Act, 1952 (53 of 1952) or (b) any officer or other person whom a High Court may appointed in this behalf, or (c) 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." 6. Thus from bare reading of the aforesaid provisions it is clear that besides the persons appointe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ffidavits. It seems to me that even prior to the recent amendment of S. 139 C.P.C. an affidavit sworn before a notary would have been admissible in a civil Court and the amendment has been made only by way of abundant caution. Normally, no litigant would need to use an affidavit sworn before a notary which is a more expensive affair than an affidavit sworn before an Oath Commissioner appointed by the District Judge but in exceptional circumstances, for instance, as in the present case, where a party is residing outside the State, it may become necessary to swear an affidavit before an Oath Commissioner. The mere fact that S. 139 has now been amended to make an express provision in this behalf does not lead to the necessary inference that an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....odes are necessarily forbidden. This principle is applicable primarily in relation to exercise of statutory powers by public authorities and is more rigidly enforced in cases where power is of a drastic nature. But even in regard to exercise of public powers the rule is not of universal application, vide Charles K. Skaria v. Mathew, , (Para 23). No rule of public policy can be imagined for exclusion of affidavits sworn before notaries from proceedings under this Act. On the contrary, public interest and the interest of the litigants clearly require that whenever a litigant finds it more convenient, he presents an affidavit sworn before a notary instead of an affidavit sworn before an Oath Commissioner. Notaries are responsible officers and ....