BASHIR AHMAD Versus ABDUL WAHID

The respondent filed a suit for recovery of Rs.10,000 as arrears, of rent. The brief background of the matter is that the respondent is owner of two shops, which were let out by him to the petitioner at monthly rent of Rs.100 each. The petitioner did not pay the rent, therefore, the respondent was constrained to file ejectment petition, which was unsuccessfully contested by the petitioner up to the Hon'ble Supreme Court. The decision is reported as Bashir Ahmad v. Abdul Wahid 1988 SCMR 2102. Thereafter, the respondent filed the suit for recovery of the arrears of rent. The same was initially contested by the petitioner but thereafter he absented himself. The learned trial Court decreed the suit vide ex parte judgment and decree dated 4-2-1988. The petitioner thereafter moved an application on 16-3-1988 for setting aside the ex parte decree. The same was contested by the respondent. The trial Court framed the following issues on 25-5-1988:--

(1) Whether the petition is time-barred? OPR

(2) Whether there are sufficient grounds to set aside the ex parte decree dated 4-2-1988? OPP

(3) Relief.

The application was adjourned to 14-9-1988 for the evidence of the petitioner thereafter he was afforded four more opportunities. within a span of about six months but he failed to produce,any evidence in support of the application and ultimately his evidence was closed on 24-5-1989 and the application was dismissed for want of proof. The petitioner assailed this order through an appeal before the District Judge, who dismissed the same vide order dated' 20-9-1989. Hence the present petition, which was admitted to regular hearing and notice was issued to the respondent, who has appeared and contested the petition.

2. The learned counsel for the petitioner in support of the petition argued that the application was within time as the same could have been moved within three years. In this behalf reliance has been placed on Rehman Weaving Factory v. Industrial Bank -PLD 1981 SC 21 and Muhammad Shafi v. Mst. Razia Ghafoor 1987 MLD 2445. It is added that issue No.2 was proved by the affidavit of the petitioner as well as his learned counsel. The arguments are, summed up with the submission that the petitioner could not appear on 24-5-1989 on account of death of his grand-daughter on 22-5-1989. It is added that he sent his son to apprise his learned counsel and get a date. It is, therefore, concluded that the trial Court was not justified in refusing adjournment and closing his evidence.

3. On the other hand, the learned counsel for the respondent argued that the application of the petitioner for setting aside the ex parte decree was not dismissed as time-barred but was dismissed for lack of proof on issue No.2. It is added that this case has a chequored history. The petitioner contested the ejectment petition up to the level of the Hon'ble Supreme Court and thereafter filed a suit for declaration, which was also dismissed. The arguments are concluded with the submission that the trial Court was fully justified to decide issue No.2 against the petitioner for lack of proof. It is added that the Court was not informed as to the death of the grand daughter.

4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The, petitioner was under a legal obligation as provided in subsection (1) of section 115, C.P.C. to support his petition with pleadings, documents and orders of subordinate Courts. There is nothing on the record to show that the trial Court proceeded hastly or illegally while closing the side of the petktioner. The petitioner was afforded five opportunities to lead evidence to discharge the onus of issue No.2 but he failed to bring any evidence on the record. Therefore, he cannot blame anybody except himself.

5. The next contention is that the Courts below have failed to appreciate that the application was supported by the affidavits of the petitioner and his learned counsel. The affidavits can only be considered in support of an application when those are filed on the direction of the Court otherwise evidence is to be recorded in Court. In this behalf section 30, rule 4, Order XVUI and rule 1, Order XIX, C.P.C. are very clear. In this case the trial Court never invoked the provisions of Order XIX, C.P.C. and directed the parties to prove their respective contentions by affidavits. On the other hand, the trial Court framed issues and adjourned the suit for recording of the evidence. Therefore, the affidavit of the petitioner and his learned counsel were not relevant for the decision of issue No.2. In this context section 30 read with rule 1, Order XIX and rule 4, Order XVIII, C.P.C. are relevant and very clear. In this behalf, reference can be made to Bank of Credit and Commerce International (Overseas) Ltd. v. Kartchi Tank Terminal Ltd. and 3 others PLD

1988 Karachi 261; Srinivasa Ayyangar v. Pichumani Ayyangar AIR 1933 Mad. 164 and Dominion of India v. Rupchand Heerachand AIR 1953 Nag. 169.

6. This is not all. The so-called affidavits of the petitioner and the learned counsel appended with the application for setting aside the ex parte decree cannot by any stretch of imagination be treated as `affidavits'. The affidavit is a declaration of facts made in writing and sworn on oath. In this behalf, reference can be made to cases of Dominion of India (supra), Pesu Mal-Harbhagwan v. Bishen Das-Mewa Ram AIR 1927 Lahore 376 and Mangal and others v. Emperor AIR 1914 Allahabad 197. While the contents and form of the affidavit as far as Lahore High Court is concerned have been provided in Part B, Chapter 12-B of the High Court Rules and Volume IV. The relevant Rules are 8, 9, 12, 14 and 15 which are reproduced as under:--

"8. (i) Every affidavit to be used in a Civil Court shall be entitled:--

`In the Court of .. ... ... ... ... ... ... at... ... ... ... ... (naming the Court and place of sitting).

(ii) If there be a cause in Court, the affidavit in support of or in opposition to an application respecting it shall also be entitled in the cause, thus:--

... ... ... ... ... ... ... ... ..., PLAINTIFF, against

... ... ... ... ... ... ... .. ..., DEFENDANT

Claim: ... ... ... ... ... ... ... ... ... ... ... ... (naming the parties and stating the nature of the claim)

(iii) If there be no cause in Court, the affidavit shall be entitled:--

`In the matter of the petition of ... ... ... ... ... ... ... ... ... ... ...(name) praying ... ... ... ... ... ... ... ... ... ... ... ... ... ...(brief statement of subject).

. (iv) Every affidavit shall be further entitled--

Affidavit of ... .. .. ... ... ... (name) made on this ... ... ... ... ... ...day of... ...

... ... ... ...19 (date) before ... ... ... ... ... ... ... ... :..(name of attesting officer), at .... ... ... ...... ... .... ... ... ... ... ... ... (place):'

9. (i) Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject. .

(ii) Every person, other than a plaintiff or defendant in a suit in which the application is made, making any affidavit, shall be described in such manner as will serve to identify him clearly; that is to say, by the statement of his full name, the name of his father, his profession or trade, and the place of his residence.

(iii) When the declarant in any affidavit speaks to any facts within his own knowledge, he must do so directly and positively, using the words `I affirm' or `I make oath and say'.

(iv) When the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant must use the expression =I am informed', ... ... ... and, if such be the case, should add `and verily believe it to be true,' or he may state the source from which he received such information. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source the declarant shall specify the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents.

12. The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark, date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.

14. If any person making an affidavit appears to the Court, Magistrate or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of the affidavit, such Court, Magistrate or Officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate or officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court, Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it.

15. Every affidavit shall be signed or marked and verified at foot by the declarant and attested by the Court, Magistrate or other officer administering the oath or affirmation, the verification by the declarant shall be in one of the forms attached hereto, and shall be signed or marked by the declarant. The attestation of the Court, Magistrate or other officer administering the oath or affirmation shall also be in the form prescribed below.

16. ... ... ... ... ... ... ... ... ... ... ...

I.--FORM OF VERIFICATION OF OATH OR AFFIRMATION

(Vide paragraph 15 above)

Oath

I solemnly swear that this my declaration is true, that it conceals nothing, and that no part of it is false---so help me God!

Affirmation

I solemnly. affirm that this my declaration is true, that it conceals nothing, and that no part of it is false."

These rules have been quoted because it was felt that Advocates, Oath Commissioners as well as subordinate Courts and administrative staff of the Courts including of this Court either are unaware or have forgotten about the necessary ingredients of-the affidavit.

The affidavits of the petitioner and his learned counsel filed with the application under Order IX, Rule 13, C.P.C. read as under:--

This is by and large the form of the affidavits which are being submitted in this Court as well as the subordinate Courts. The same do not fulfil the basic requirements of a valid affidavit as contained in the above-quoted provisions particularly rules 8, 9 and 15. The main requirements of the affidavit according to these rules are:

(i) The name of the Court, title of the proceedings;

(ii) subject, of the suit or petition;

(iii) name of the. deponent, the date and place;

(iv) the affidavit is to be divided into paragraphs which shall be numbered consecutively and shall be confined to distinct portion of the subject;

(v) the deponent, other than the party to the suit, shall be described in such a manner as would serve to identify him clearly i.e. full name, father's name, profession or trade and place of his residence;

(vi) the declarant in affidavit while referring the facts within his knowledge must do so directly and positively using the words `I affirm' or `I make oath and say';

(vii) when reference as to the information obtained from others, the declarant must use the expression `I am informed', and should add `and verily believe it to be true', or he may state the source from which he received such information. Every affidavit shall be signed or thumb-marked; and

(viii) it shall be verified in accordance with the verification in the form reproduced above. The verification shall be signed and thumb-marked by the declaration. The affidavit shall be attested by the path i Commissioner.

We can divide the affidavit into 'following three parts in accordance with the above requirements:--

(1) Name of the Court, title and subject of the proceedings and name etc. of the deponent;

(2) declaration of facts sought to be proved by the affidavit duly signed by the declarant; and

(3) verification .duly signed by the deponent and attested by the Oath Commissioner.'

In my humble opinion the affidavit which lacks any of the three parts is no affidavit in the eye of law. I am fortified in my view by the judgments reported as Bisakha Rani Ghose v. Satish Chandra Roy Singha and others AIR 1956 F Cal. 496; Chandrika Prashad Singh and others v. Hira Lal and others AIR 1924 Pat. 312; Dipendra Nath Sarkar v. State of Bihar and others AIR 1962 Pat. 101, Brij Lal Suri v. State of Uttar Pradesh and others AIR 1954 All. 393 and Habib Bux v. Zahoor ul-Hasan 1086 CLC 1119.

7. When looked at the affidavit in the case in hand the same are just waste paper and cannot be read in evidence. This is beside the point that neither the parties ever agreed to prove the application by affidavit nor the Court directed them to submit affidavit, in support of the application. On the other hand, the application was adjourned for evidence of the petitioner and he got five opportunities for that purpose but failed to avail the same.

8. The upshot of the above discussion is that there is no merit in this revision. The same is dismissed with costs.

M.BA./B-142/1, Petition dismissed.