385 - When Advocate files affidavit in Interlocutary Application without consent of Plaintiff/Party?

#advocate #affidavit #plaintiff

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Andhra High Court
G. Krimana Murthy vs Hemalatha Chit Funds Pvt. Ltd. And ... on 6 April, 2006
Equivalent citations: AIR 2006 AP 398, 2006 (4) ALD 42, 2006 (3) ALT 416
Author: D Varma
Bench: D Varma, P S Reddy
ORDER D.S.R. Varma, J

16. The view expressed by the learned single Judge (T.Ch. Surya Rao, J.) in G. Satyanarayana's case
is quite similar to the view expressed by us in the earlier paragraphs.
17. We may usefully notice the observations of the learned single Judge (T.Ch. Surya Rao, J.) while
dealing with G. Satyanarayana's case3 (at paragraph No. 11), which run thus:
There is no legal bar in giving the affidavit by the Pleader's clerk himself in support of the petition
filed in this case seeking to set aside the ex parte decree. There is no legal bar, as discussed supra, to
give the affidavit either by the Counsel or by his clerk or by some third party, on behalf of the party,
who is filing the petition. Who should give the affidavit in support of a particular interlocutory
application, of course, depends upon the facts peculiar in each case. Therefore the observation of the
Court below that the affidavit has not been filed by the party himself and in consequence thereof, the
petition should fail, cannot, therefore, legally be sustained....
18. The learned single Judge (T.Ch. Surya Rao, J), however, relied on a decision in Hussaini Begum
v. B. Ramachandraiah 1976 (1) An.W.R. 325, wherein it was held thus:
A combined reading of the Rules 59, 54 and 48 of Civil Rules of Practice prescribed by the High
Court with the previous approval of the Governor of Andhra Pradesh, shows that the interlocutory
application need not necessarily be signed by the party himself. It can either be signed by the party
himself or his Counsel. Every interlocutory application shall be accompanied by an affidavit, which
affidavit should contain the statement of facts made on information or belief of the deponent and
the source or ground of such information or belief. Nowhere, it has been mentioned that the
affidavit filed in support of the petition shall be given by the party himself. Anybody, who is
conversant with the statement of facts, which are necessary to be furnished for maintaining an
interlocutory application can, therefore, give the affidavit.
19. In Pasupuleti Subba Rao's case (2 supra), the learned single Judge (R.M. Bapat, J) observed as
under:
The practice of Advocate filing his affidavit in a petition filed under Order 9, Rule 9, CPC is totally
wrong and illegal. Such practice has to be deprecated. Order 9, Rule 9 or Order 9, Rule 13, CPC
contemplates that the application has to be filed by the party concerned only and not by the counsel.
The counsel only is permitted to represent his client: he cannot step into the shoes of a client.
Admittedly this order passed by the learned Judge is totally wrong and illegal. But any way this
practice is prevalent in the State of Andhra Pradesh. Therefore, as an exception this time the order is
sustained. All concerned should note the law laid down by this Court. Under these circumstances
only this Court does not wish to interfere with the said order.
20. Nevertheless, another learned single Judge of this Court (T.Ch. Surya Rao, J) in G.
Satyanarayana's case (3 supra), observed that an affidavit can be filed by a person, may be, an
Advocate or the party himself, in order to explain the laches or lapses on his part.
21. We are of the considered view that the abovementioned observations of the learned single Judge
of this Court (R.M. Bapat, J) in Pasupuleti Subba Rao's case (2 supra), are, in fact, not relevant
inasmuch the A.P. Civil Rules of Practice, which are referred to above, were not considered.
Therefore, the observations made by the learned single Judge of this Court (R.M. Bapat, J) in
Pasupuleti Subba Rao's case (2 supra) are of no consequence, since, despite those observations the
learned single Judge, as a special case in the particular fact-situation obtaining in that case,
eventually accepted the affidavit signed by the Advocate.
22. It is well settled that the procedural laws are handmaid to justice. Technicalities and formalities
should not be allowed to defeat the interests and ends of justice. What is required to be done by a
Court is to do substantial justice to the parties, that too, on merits, de hors trivial technicalities and
formalities.
23. From the above, it is clear that all the interlocutory applicationsneed not necessarily be signed
by the party himself or herself and an affidavit can be signed either by the party himself or by an
Advocate or anybody, including the clerk of an Advocate, who is conversant with the statement of
facts, which are necessary to be furnished for maintaining an interlocutory application.
24. The reference is accordingly answered.

[krishnaiahkrishnsiah]

Sir, Excellent advice to the advocates. I request you keep posting like this in the benfit of advocates.

[prakashnanjan]

Kindly explain What is the evidentiary value of interlocutory affidavit

[HariKrishna-rz]

A party appeared party in person issued showcause notice for warrant of arrest without advocates signature/attestation. Is as per rule of CPC or not

[bharadwajananth]

In any IA filed by the Advocate himself, he only files the Memorandum of fact, not the affidavit. it is my understanding.