Affidavit

It is settled law that when the election petitioner is not personally known to the oath commissioner, he can be identified by an advocate, who is then required to state that election petitioner is personally known to him but when the name of the advocate identifying the deponent is not mentioned on the verification, the same is not valid

Perusal of verification on the affidavit reflected that the election petitioner declared that he verified his affidavit without specifying which paragraphs he is verifying from his personal knowledge and which paragraphs were correct to his belief

There was a stamp of oath commissioner which reflected a different date of oath

When identification was to be made by an advocate, his name and particulars were required to be mentioned

When the affidavit fulfills requirement of O. VI, R. 15 of the C.P.C. then even a short affidavit is sufficient

Election petition should be properly verified by the petitioner, specifying which facts are based on personal knowledge and which are based on belief

The Tribunal found that the petitioner's affidavit lacked proper verification, with inconsistencies in dates and missing signatures

Tribunal under S. 145(1) of the Elections Act, 2017, dismissed the petition, citing multiple procedural violations.

Appellant/candidate had to submit affidavit of his assets and liabilities on solemn affirmation attested by Oath Commissioner

Though declaration of appellant was attested by Oath Commissioner but at some unknown time and place

Oath commissioner attested the document in Pakistan whereas appellant was in Saudi Arabia on the given date

Such attestation under Chap. 12 of Volume-IV of High Court (Lahore) Rules and Orders had no legal worth

According to R. 11 of Chap. 12 of Volume-IV of High Court (Lahore) Rules and Orders, if executant of affidavit is not known to the officer appointed to administer oath then he has to be identified by some person known to him and such fact is essentially required to be mentioned at the foot of affidavit

According to Rr. 14 & 15 of Chap. 12 of Volume-IV of High Court (Lahore) Rules and Orders, executant is personally required to appear before Court, Magistrate or officer for an oath or affirmation

Appellant/ candidate never appeared before Oath Commissioner due to his presence in Saudi Arabia

High Court declined to interfere in the order passed by Returning Officer

Appeal was dismissed, in circumstances.

In absence of any counter affidavit, contents of sworn affidavit is deemed to be admitted.

Facts and claims supported by an affidavit, if remain un-rebutted, shall be considered as admitted and true.

Averments of the facts made in a petition, which is supported by an affidavit, have to be accepted as correct, in absence of a counter affidavit or other material in rebuttal.

When deponent had failed to appear before the Court to substantiate his plea then such affidavit could not be considered or taken into account.

High Court directed that a sworn affidavit based on the definition of Muslim and non-Muslim provided by Art. 260(3) (a) & (b) of the Constitution shall be a requirement for appointment in all Government and semi-Government institutions especially judiciary, Armed Forces and civil services, etc.

Said application was supported by the affidavit which was to be accepted by the Court; if Court was of the view that affidavit was not worth consideration, applicants must have been afforded an opportunity to substantiate their case pleaded in the application

Impugned order for ex-parte proceedings and ex-parte judgment and decree passed by the Courts below were set aside

Suit filed by the plaintiff was directed to be deemed to be pending before the Trial Court to be decided in accordance with law

Revision was allowed.

Affidavit could not be given preference over record or the documents.

Letters offering facility issued from time to time by plaintiff Bank were accepted by defendants by putting signatures thereon

Testimony of plaintiff's witnesses regarding finance documents under Cash Finance (pledge) Facility, Letters of Credit and their allied documents together with statements of accounts went un-rebutted, as no question was put to them in cross-examination

Effect

Defendants offered no meaningful evidence rebutting claim of plaintiff Bank

Testimony of defendants witness had no nexus with the defence taken in written statement

Witness of defendant was unreliable and could not produce any authorization from defendant to appear on its behalf

Affidavits of remaining defendants were produced but they chose not to appear in witness box to undergo test of cross-examination

Such affidavits of defendants had no value and defendants failed to lead any credible evidence to rebut plaintiff's evidence

High Court decided all issues in favour of plaintiff Bank

Suit was decreed in circumstances.

Mere presentation of an affidavit was not a valid piece of evidence until and unless it was tendered in evidence by the deponent and cross-examined by the other side.

Party relying on affidavit must produce deponent for cross-examination and if deponent fails to submit to cross-examination, affidavit would lose all its force as probative piece of evidence and the same could not be acted upon.

Non-submission of counter-affidavit whether by will or default, forfeit right of respondent to deny assertion made in the affidavit

Where no counter-affidavit had been filed by respondent, appeal on facts and grounds of case would confirm that deposition made by appellant in memo of appeal and affidavit were to be deemed to be true and correct.

When some fact was alleged and supported by an affidavit, if, there was no rebuttal from the other side by filing counter affidavit, same would be deemed admitted.

Counsel's affidavit ordinarily would not be disbelieved.

High Court was vested with the powers to issue direction that such question, as it could consider necessary to be decided on evidence; and in such a manner as it deemed fit, and in that case it could follow such procedure and could pass such order as appeared to be just

Generally, on the question of fact, unrebutted affidavit was treated to be sufficient proof.

Categorical statement made in counter-affidavit, if not rebutted by opposite party by filing affidavit-in-rejoinder, would be accepted as true

Illustration.

Writ petition was supported with affidavit but the respondents who had to make payment neither appeared nor filed written statement or counter affidavit

Writ petition supported by affidavit could be rebutted only by filing counter affidavit

Writ petition was accepted and Authority was directed to pay all the dues according to price adjustment formula.

Affidavit was considered sufficient in a writ petition as basic proof, if not rebutted by cogent evidence.

Constitutional petition was dismissed by High Court for non-prosecution as counsel for petitioner was absent due to his illness

Validity

Courts were generally inclined to have the lis before it decided on merits

Admission of appellant's constitutional petition to full hearing indicated that prima facie he had a good case

Factual aspects of the grounds raised by appellant in applications for restoration had not been countered factually by respondents

Ordinarily affidavit of a counsel about his illness, in absence of counter affidavit was to be taken on its face value and accepted

High Court did not at any stage, require the counsel to support his ground of illness by a medical certificate

Explanation furnished by the counsel of his absence on account of indisposition had to be accepted

Supreme Court set aside the order passed by High Court and restored the petition filed by appellant

Appeal was allowed.

No counter affidavit having been filed by the Department, depositions made by and on behalf of the appellants in the affidavits were deemed to be true and correct and no controversy in that behalf could be allowed to be generated

Department failed to discharge their legal burden or ultimate burden in terms of S.187 of the Customs Act, 1969.

Affidavit is a piece of evidence which carries full legal weight as per relevant provisions of Civil Procedure Code, 1908 as well as principles of justice, equity and good conscience

Affidavit was based on information received from any source and such information should be disclosed in the affidavit

Affidavit was sworn on either on Islamic principles or on solemn affirmation.

Where no evidence had been produced by the Revenue to show that the depositions made by the taxpayer in the affidavit were incorrect or disproved by documentary evidence the Appellate Tribunal would be justified in relying upon the veracity of the facts sworn by the deponent in the affidavit submitted

If the other party files a counter affidavit he could request the court for permission to cross examine the deponent and lead other evidence to rebut the contents of the affidavit

Non submission of the counter affidavit whether by will or default forfeits the adversary's right to deny the assertions made in the affidavit.

Objection of tenant that affidavits of landlord's witnesses not attested by Oath Commissioner, but notarized by Notary Public, could not be considered evidence of landlord

Validity

Affidavits, if not attested by Oath Commissioner, could be said to be written examination-in-chief of witnesses proposed to appear in court

When a witness after taking oath stated that he accepted contents of his written statement, then same would be considered his examination-in­-chief in absence of any objection

Rent Controller had administered oath from such witnesses while they appeared for cross-examination

Such witnesses in their statements on oath had submitted their affidavits and accepted contents thereof to be correct

Contents of such affidavits would be deemed examination-in-chief of such witnesses on oath

Tenant had not raised such objection while cross-examining such witnesses and also in first appeal

Appellant could not be allowed to take such objection in violation of his earlier stance taken before First Appellate Court

High Court dismissed second appeal in circumstances.

Raw material was utilized in manufacturing agricultural implements (plough blades etc.) and supplied to various dealers to different cities

Registered person applied for consumption certificates on consumption of raw material

Instead of issuance of such certificate, contravention report was prepared alleging that the registered person in lieu of manufacturing agricultural implements sold the raw material in the local market and misused the concession/facility

In the inquiry report it was observed that " all the buyers submitted the documents regarding purchase of agricultural implements (cultivator plough) from the registered person and also admitted that affidavits had been signed by them and they produced the original National Identity Cards to prove the genuineness of their affidavits and identity card; however, they failed to produce any documentary evidence in support of their purchases and everybody stated that he had no record and also stated that he was unable to maintain record because of the reason that he was illiterate and did not know how to maintain the record"

Collector (adjudication) remarked in his order that" the report of the departmental representative clearly showed that the buyers failed to render any documentary evidence regarding purchases from the registered person; affidavits submitted by the buyers that they had no record and were unable to maintain record because they were illiterate also seemed to be hypothetical on the ground that it totally differed from those statements which were previously endorsed to the department and statements in the affidavit that they had purchased plough blades from the registered person were totally baseless because their employees previously categorically stated that they had not made any such purchases and all affidavits provided were an afterthought and had been made with the connivance of the registered person; and order of the adjudicating officer levying sales tax, additional tax and penalties was upheld being not illegal"

Validity

Collector (adjudication) issued summons to all the purchasers and during the cross-examination all the purchasers admitted/stated in their statements that they knew the registered persons who were manufacturing plough blades and they had purchased the blades from the said company at the relevant time

All the purchasers admitted such facts through the affidavits and also produced their original identity cards during the court proceedings

When everything had been established in favour of the registered person, why the department intended to drag the registered person into another chain of litigation, after recording all the evidence why the Collector (Adjudication) ignored the factual as well as legal facts of the case

Both the authorities had initiated the proceedings against the registered person on the basis of surmises and conjunctures which did not have any legal consequences in the eyes of law

Orders of the authorities below were vacated by the Appellate Tribunal being void, illegal and ab initio and, were set aside and directed the department to waive off the tax demand as well as the further tax and penalties imposed therein.

Affidavit attached with proceedings cannot be given much weight when deponent has not faced the test of cross-examination.

Where deponent could not be cross-examined regarding Contents of affidavit, it cannot be equated to that of evidence and such affidavit swron in would have no substantial bearing on merits of the case having little evidentiary value.

Affidavit was considered sufficient prima facie proof and if not rebutted by cogent evidence, it becomes conclusive proof.

Untrue statement, error, etc.-Affidavit-Non-filing of counter-affidavit to controvert facts stated in petition, would amount to admission of averments made in such petition.

Under O.XIX, R.3, C.P.C. it is mandatory that affidavits are required to be confined to such facts as the deponent is able of his own knowledge to prove.

Proceedings before the Appellate Tribunal were judicial proceedings and without submitting the counter-affidavit contradicting the appellant/assessee's assertion, counter-claim/contention could not be accepted as true of the other party opposing it.

Court record would have precedence.

Trial Court illegally accepted affidavit on its face value merely because deponent had been living abroad and was not readily available in Pakistan

Such approach on the part of Trial Court and endorsed by Appellate Court apart from being without legal backing was repugnant to settled principles of law

Affidavit, without an opportunity of cross-examination to opposite party did not constitute legal and valid evidence and must be excluded from consideration.

Admissibility of affidavit-Procedure-Affidavit, ipso facto, is not admissible in evidence and its contents cannot be accepted without cross-examination of deponent.

Counsel has moral and legal duty to conduct himself above board as a counsel and not to become party in suit.

Document of affidavit without certificate of the Oath Commissioner certifying that its contents were deposed before him on oath or solemn affirmation and the executant of the said document was either known to him or was identified before him by a person who was known to him, could not be deemed as affidavit and thus had no evidentiary value and could be ignored.

Affidavit did not bear requisite certificate of Oath Commissioner certifying that contents of the document were stated on oath or solemn affirmation before him by deponent and that the deponent was either personally known to him or was identified before him by a person known to him (Oath Commissioner)

Without such certificate, and without appearance of the deponent before Court, the affidavit could not be deemed as an affidavit in the eye of law and had no legal value in circumstances.

When no such rejoinder was filed, then the facts narrated in the affidavit had to be accepted as true.

Entries, made in the pro form as statement were not stated in the affidavit to be true and correct Even the deponent had not stated on oath that the contents of the affidavit in evidence were true and correct td the best of his knowledge and belief

Effect

Neither such affidavit could be relied upon, nor the documents produced in evidence were admissible in evidence

Plaintiff failed to adduce any evidence with regard to the liability of the defendants

Suit was dismissed in circumstances.

Filing of affidavits at the time of hearing bail application with the object of creating doubt in the prosecution case was deprecated

Affidavits of prosecution witnesses at such a stage, could not be considered.

Failure to file affidavit of third party which provided information to defendant after publication of notice in newspaper

Effect

Affidavit Incorporating contents of documents and pleadings by reference, in affidavits filed in support of interlocutory applications disapproved.

Affidavit Not necessary that every application moved before Court of law should be supported by affidavit of a person who was a party to the proceedings

Any person who was aware of factual aspects of the case could file a supporting affidavit.

Filing of affidavit alone would not constitute any offence.

Affidavits filed without orders of the Tribunal, could not be considered evidence for deseating the returned candidate.

If a person relies upon an affidavit the contents of which are disputed by the opposite-party by filing a counter-affidavit, Court may in order to elicit truth on a relevant issue, permit the cross-examination of the deponent

Such matter is, however, in the discretion of the Court which has to be exercised on the facts of each case.

Statement made by a deponent in the shape of an affidavit would not constitute legal evidence, if maker of such a statement was not subjected to cross-examination and the party disputing credentials of such person was not enabled to cross-examine him.

Affidavit is a piece of evidence which alongwith other material on record has to be taken in consideration before arriving at a finding

Where the affidavit in question was found to be against the facts emerging on record and even against the document admittedly executed between the parties, Tribunal refused to allow the affidavit any serious consideration.

Court was duty bound to return such document and direct the party to file affidavit in the prescribed form.

Affidavit is a declaration of facts made in writing and sworn on oath.