Defect Of Non-Affirmation On Oath In Affidavit In Lieu Of Examination-In-Chief Gets Cured When Witness Affirms Its Contents Before Court Under Oath: Karnataka High Court

The Karnataka High Court held that a defect of non-affirmation on oath in the affidavit filed in lieu of examination-in-chief gets cured when the witness enters the witness box and affirms its contents before the Court under oath.

The Court dismissed a writ petition challenging the order of the Trial Court that dismissed an application filed under Sections 148 and 151 of the Code of Civil Procedure, 1973 (CrPC).

The Court noted that the affidavit's defect was rectified by the prosecution witness's oath and affirmation. As a result, there was no need for intervention under Article 227 of the Constitution.

“Defect of non-affirmation on oath would get cured, once the witness enters the witness box and on oath states that contents of the affidavit in lieu of examination-in-chief were true and correct”, the Bench of Justice S. G. Pandit observed.

Advocate X. M. Joseph appeared for the Petitioners and Advocate P. N. Manmohan appeared for the Respondent.

The Petitioners, who were the defendants in the original suit approached the High Court challenging the order of the Trial Court. The said order dismissed an application filed under Sections 148 and 151 of the Code of Civil Procedure, 1973 (CrPC).

The petitioners sought the High Court's intervention by filing the aforementioned application, wherein they prayed for the rejection or discarding of the affidavit evidence presented by the Respondents. Additionally, they sought a declaration stating that the Respondents had acted unlawfully by introducing additional documents through Annexure-F without obtaining the necessary leave of the court.

The Court observed that the Petitioners had not presented any grounds justifying interference with the impugned order. Additionally, the Court noted that the impugned order lacked perversity or material irregularity, precluding interference under Article 227 of the Constitution of India.

Under Article 227, the Bench observed that the High Court refrains from acting as an appellate authority over impugned orders. It exercises supervisory jurisdiction only when it is demonstrated that allowing the order to stand would lead to significant prejudice and a miscarriage of justice.

The Court emphasized that when the examination-in-chief is in the form of an affidavit, it should be sworn before a competent authority. Respondent had filed affidavit evidence which was initially not sworn before the prescribed authorities. However, the Court noted that the defect was cured when Respondent entered the witness box, and affirmed the affidavit's contents on oath before the Presiding Officer.

Accordingly, the Bench observed that any defect in the affidavit filed before the Court was cured through an examination on oath and affirmation of its contents by the said prosecution witness. Regarding the production of additional documents, the Court rejected the Petitioner’s contention that the trial Court should not have allowed the Petitioner to submit those documents. However, the Petitioners did not specify which documents were not previously produced and were included.

Additionally, the Court noted that the affidavit attached clarified that copies of documents were submitted at the time of filing the plaint, as mandated by the Commercial Courts Act, and certified copies were also provided. Additionally, the affidavit revealed that some documents were marked and certified copies of those documents were subsequently included.

Accordingly, the Court dismissed the Petition.

Cause Title: Shiva Prakash Girish v Sri A Ligoury D’mello

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