M. Subba Rao vs Gopinath Sahu and Another

In this case the petition for revision has been verified by solemn affirmation of the petitioner, but the solemn affirmation has not been made before a Commissioner for Affidavits as required by Chap. 3, Rule 3 of the High Court Rules. That rule as amended by notification dated 25th November 1940, stands as follows:

3 (1) The facts stated in every petition shall be verified either by solemn affirmation or on oath of the petitioner, or by a separate affidavit annexed to the petition, the solemn affirmation or oath being made in every case before a Commissioner for Affidavits or other officer appointed for the purpose.

(2) Affidavits may also, be filed in support of facts brought to the notice of the Court otherwise than by petitions referred to in Sub-rule (1). The solemn affirmation or oath required for such affidavits shall also be made before the Commissioner for Affidavits or other officer appointed for the purpose.

The petition was filed on 12th December 1940, and is governed by the aforesaid amended rule. The solemn affirmation not being made before a Commissioner for Affidavits, as required by the rule, the petition is obviously not in order. This defect was pointed out by the office to Mr. M. Subba Rao, Advocate, through whom the petition was presented in Court. Mr. Rao apparently raised the objection that the solemn affirmation could not be made before a Commissioner for Affidavits, because a court-fee of Rs. 2 would be demanded for solemn affirmation before a Commissioner under Rule 13(3) of Chap. 13 of the rules, though, according to his contention, that rule is not applicable to a solemn affirmation attached at the foot of the petition. He wanted a decision of the Court on the point and accordingly the matter was placed before the Bench for orders.

Rule 13(3) of Chap. 13 of the rules provides that the fee payable, "for swearing or affirming every affidavit, intended to be used in the High Court" is Rs. 2. Mr. Rao contends that this rule is applicable only where an affidavit is to be sworn or affirmed. In the present case, so he says, there is no affidavit, and therefore Rule 13(3) is not applicable. But this rule must be read with Rule 3 of Chap. 3. The former Rule 3 in Chap. 3 stood thus:

The facts stated in every petition shall be verified either by the solemn affirmation of the petitioner or by an affidavit to be annexed to the petition.

As there was some doubt raised as to the meaning of the above rule, it was amended on 25th November 1940. The amended rule, which I have already quoted, expressly states that the solemn affirmation must be made before a Commissioner for Affidavits. Mr. Subba Rao lays stress on the word ''affidavit'' in Rule 13(3) of Chap. 13. But the word ''affidavit'' as stated in Bouvier''s Law Dictionary, means:

A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation.

Thus this word is comprehensive enough to include the solemn affirmation required by Rule 3 of Chap. 3. No doubt Rule 3(1) of Chap. 3 speaks of such affirmation apart from "a separate affidavit," but this does not establish any real difference in meaning between the two expressions. The only distinction made between them in the rule is that the solemn affirmation will be made by the petitioner, whereas the separate affidavit may be sworn or affirmed either by the petitioner or by somebody else. In practice the term ''affidavit'' may have acquired a distinctive meaning, but so far as Chap. 3, Rule 3 is concerned, there is no real difference in meaning between a "solemn affirmation" and an ''affidavit.''

We are accordingly of opinion that the solemn affirmation supporting the petition in this case must be made before a Commissioner for Affidavits on payment of a fee of Rs. 2.