- (1.) THIS revision is directed against the order dated 24-1-1979 passed by the Sessions Judge, Pali, whereby the revision petition filed by the respondents was allowed and the order of attachment passed by Sub-Divisional Magistrate, Pali, dated 27-7-1976, was set aside and the case was sent back to pass necessary orders for attachment of the land in dispute after hearing the parties. Both the parties were allowed to submit affidavits.
(2.) THE relevant facts are that Gulam Rasul submitted an application under section 145, Cr. P. C. , and on 27-7-1976, a preliminary order was drawn up and thereafter considering the case one of emergency, order of attachment was passed and Tehsildar, Pali, was appointed as Receiver. Aggrieved against the order of attachment, the opposite party, i. e. , Neku and others, preferred a revision petition before the Sessions Judge, Pali, and the learned Sessions Judge, on the basis of the two affidavits, (1) of Gulam Rasul and (2) of Kedarnath, not being in proper form, set aside the order of attachment and remanded the matter with the aforesaid direction. Dis-satisfied with this order of the Sessions Judge, Pali, Gulam Rasul has preferred this revision petition. I have heard Shri P. L. Choudhary, learned counsel for the petitioner, and Shri K. S. Rathore, on behalf of the non-petitioners. Shri Choudhary contended that the learned Sessions Judge did not consider section 7 of the Oaths Act, 1969 (hereinafter referred to as "the Act") which makes a provision for curing all defects of omissions to take oath or make an affirmation or substitution of any one for any other of them or for irregularity in the administration of oath or affirmation or in the form in which it is administered. In support of his contention, the learned counsel placed reliance on a decision of Mysore High Court in C. K. Chandrasekhriah vs. State of Mysore (l ). He also urged that under the present provision of section 145 Cr. P. C. inquiry is to be conducted after recording evidence of both the parties and the matter is not required to be disposed of on the basis of the affidavits. Even if the affidavits are excluded from consideration, the Magistrate could satisfy himself on the basis of the application and could proceed to pass an order under section 146, Cr. P. C. The learned Sessions Judge in view of the amended provision should not have remanded the matter and should have considered the case on merits. Shri Rathore, on the other hand, submitted that the affidavits were not in form No. 4 of the Schedule under section 6 of the Act. There was neither any oath or affirmation nor it was stated as to which paras were true to the personal knowledge of the deponent and which were true to his belief. Thus, the verification of the affidavits was not in accordance with the law, so the learned Sessions Judge was right in ignoring the affidavits and as the Sub-Divisional Magistrate must have been influenced by the affidavits, so he thought it proper to remand the matter, giving fresh opportunity to both the parties to place their affidavits on record, and thereafter, proceed to pass the necessary orders regarding attachment after hearing the parties. I have considered the contentions of the learned counsel and I find substance in the contention of Shri Choudhary that by virtue of sec. 7, the alleged invalidity in the affidavits stands cured. The learned Sessions Judge placed reliance on a decision of this court in Roda vs. Nathu (2 ). It is true that this authority, which has been relied upon by the learned Sessions Judge holds that the affidavit without any invocation to God or reference to solemn affirmation, is not a valid and proper affidavit. It may be stated that in Roda's case, the provision contained in section 7 of the Act was not referred to and it appears that attention to this provision was not invited. Section 7 of the Act reads as under : - "7. Proceedings and evidence not invalidated by omission of oath or irregu-larity.- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, shall affect the obligation of a witness to state the truth. " Section 7 of the Act has been considered in the Mysore case cited by Shri Choudhary and it has been observed in that case as under: - "the proper way to understand s. 13 of the Oaths Act (1873) is to read it as curing 3 kinds of disobedience to the provisions of the Act, (1) The first of them is a disobedience in the form of the omission to administer either an oath or affirmation. (2) The second is a disobedience by substituting an oath where an affirmation had to be administered. (3) The third is a disobe-dience committed by the adoption of a wrong form of an oath or affirmation when such oath or affirmation is in fact administered and there has been no omission to administer it. Each of these categories of disobedience is a distinct category by itself. It is not right to say that the third category has some kind of association with the first 2. The third category refers only to cases in which there has been an administration of oath or affirmation, but that oath or affirmation was not administered in the form prescribed for that purpose. Cases in which there has been a complete omission to administer an oath or affirmation are also cases falling within sec. 13 and therefore, curred by its provision. "
(3.) SECTION 7 of the Act is analogous to section 13 of the Oaths Act, 1873. It would appear from this provision that any omission to take oath or any irregularity in the form of oath or affirmation does not invalidate the proceedings or render any evidence inadmissible. I need not refer to other decisions, which have been cited by Shri Rathor, firstly, because section 7 of the Act has not been considered in any of them and the question involved in them was with regard to the compliance of principle embodied in O. 19 R. 3, C. P. C. , and the question was as to the validity of affidavits when the deponent does not state as to which paras of the affidavit are true to his knowledge and which are true to his belief and in general verification is made that contents of the affidavit are true to his knowledge and belief. The normal rule of evidence is that hearsay evidence is no evidence and it is excluded from consideration. In the verification of the affidavit, if it is not specified as to which paras of the affidavit are true to personal knowledge and which are true to belief, then the whole of the affidavit has to be ignored and no finding or conclusion can be reached on the basis of such an affidavit, so it has been held that such affidavits are bad in the eye of law and are not legal. If the verification of the two affidavits - (1) of Gulam Rasul, and (2) of Kedarnath, is looked into it would be evident that such a question will not arise for cosideration in these affidavites. Gulam Rasul in his affidavit has stated that the contents of paras Nos. 1 to 12 of the affidavit are true to his knowledge and are correct and he has stated every thing truly without concealing anything, so God may help him. The verification of the affidavit of Kedarnath is to the effect that the contents of paras Nos. 1 to 8 of the affidavit are true and correct to his knowledge. It may be stated that there is no reference in the verification of the affidavits that any content of the affidavit is true to belief so this question does not arise for consideration that any para of the affidavit being true to belief, renders the affidavit illegal and improper It has not been duly sworn in before the authority administering oath. In Mahendra Singh Gehlot vs. State (3), the affidavit was filed in writ petition and the verification of the affidavit was to the effect that the affidavit is true to the knowledge of the deponent The deponent declared on oath that the contents of all the paras of his affidavit are true and correct and nothing has been concealed and no part of his affidavit is false. The deponent omitted to state in his affidavit that the contents of the paras are true to his knowledge In the light of the provision of sec. 7 of the Act, it was held that this defect in the swearing in of the affidavit is of no material significance. ;