- (1.) WE have heard Sri A. K. Gaur, learned Counsel for the applicant and Sri O. P. Tripathi appearing for respondent.
(2.) COUNTER and rejoinder affidavits have been exchanged between the parties and the case was ripped for final disposal. A supplementary rejoinder affidavit sworn before a notary has been filed by the applicant in the proceeding in question, on account of which a preliminary objection was raised by learned Counsel of opposite 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 Commissioners appointed by the Chief Justice of the High Court or other persons authorised in this behalf under the aforesaid Chapter alone can be accepted by this Court and an affidavit sworn before a Notary cannot be presented/accepted in the proceeding before this Court. Contrary to it learned Counsel for the applicant Sri A. K. Gaur. Advocate has submitted that affidavit sworn before a notary is acceptable in proceeding before this Court and in support of his contention he has placed reliance upon two reported decision of this Court to be referred hereinafter Now it is necessary to examine the issue in the light of the rival submissions of the parties. Rule 1 of Chapter IV of the High Court Rules deals with the Appointment of Oath Commissioners who are appointed by the Chief Justice of this Court. Rule 3 pertains to maintenance of register by the Oath Commissioners. Rule 4 provides that each affidavit shall have recorded on it the number and the year of the register in which it is entered and the serial number and date of entry. It shall also have the coupon, as supplied by the Court, affixed to it by the Oath Commissioner. A Proviso has also been appended to it, to the effect that affidavit verified by Oath Commissioners of other states, by an Officer of Jail in the State of Uttar Pradesh, by the Superintendent-cum-Accountant of the office of Official Liquidator, High Court, Allahabad, and by the Police Sub- Inspector (M) in the office of the Inspector General of 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 17 provides that the person administering an oath or affirmation to the person making an affidavit, shall follow the provisions of the Indian Oaths Act, 1873. Thus from a plain reading of the aforesaid provisions it is clear that under Chapter IV of the rules of the Court, the provisions have been made for appointment of Oath Commissioners and swearing of affidavits before them by the persons making affidavits but there is nothing to show that these are sole provisions and have been made in exclusions of or in derogation of other provisions of law governing the swearing of the affidavits. Not only this but contrary to it, the proviso contained in Rule 4 of Chapter IV carves out exception to the general rules where the affidavits verified (i) by the Oath Commissioner's of the other states (ii) by an officer of the jail in State of UP (iii) by the Superintendent-cum-Accountant of the Office of the Official Liquidator, High Court, Allahabad and (iv) by the Police Sub-Inspector (M) in the office of the Inspector General of Police at Lucknow on whom powers of oath commissioner have been conferred can be presented before the Court without any coupon affixed to it. These provisions clearly go to show that it is not affidavit verified and sworn before Oath commissioners of High Court alone can be presented before this Court rather the affidavit sworn before other persons authorised to verify affidavits and administer oath or affirmation can also be presented before this Court.
(3.) 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. " Thus from bare reading of the aforesaid provisions it is clear that besides the persons appointed as Oath Commissioners of the High Court or district Courts, any notary appointed under Notaries Act 1952 can also administer an oath on affidavit. At this juncture it is necessary to point out that almost in similar situation a learned Single Judge of this Court has considered the question of admissibility of affidavit sworn before notary in a proceeding under U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 in case of Kashi Nath Srivastava v. Mrs. G. S. Tiwari & Ors. 1982 ALJ 642. In para 6 and 7 of the decision this Court held as under;