Affidavit Evidence in India: Resolving Inconsistencies in Order 19

Introduction

An affidavit is a written statement made under oath.¹ Section 30 of the Civil Procedure Code, 1908 (CPC) gives courts the power to order any fact to be proved by affidavit,² and its usage is governed by Order 19.³ However, the application of these provisions has been far from uniform. Their inconsistency stems from different interpretations of Order 19, particularly regarding the scope of its application and the weight to be accorded to affidavit evidence.

To that end, this paper contends that these inconsistencies can be harmonised if the “best evidence rule” is applied as a governing standard. It first discusses the current condition of affidavit evidence under Order 19. Second, it discusses the inconsistencies in its application. It demonstrates that we need a more consistent standard for affidavit evidence. Third, it shows that the “best evidence rule” can produce a better framework for when affidavit evidence should be used.

The current state of affidavit evidence under Order 19

To understand the current state of affidavit evidence, examining some of the provisions (particularly Rules 1 and 2) of Order 19 in detail is essential.

Rule 1 of Order 19 allows to use affidavits to prove specific facts. However, it also recognises the importance of cross-examination by providing that if a party genuinely desires to cross-examine the witness, the court should not authorise using affidavit evidence (proviso). This balancing act between efficiency (through the use of affidavits) and the right to cross-examination is a recurring theme in the application of Order 19.⁴ However, its application has been limited. As the Law Commission of India noted in its 54th report, “for sufficient reason” in Rule 1 is limited to exceptional cases only.⁵

Rule 2 specifies that evidence may be given by affidavit upon any application. However, the court may direct the deponent’s attendance for cross-examination. Unlike Rule 1 (which applies to all proceedings), Rule 2 only applies to applications.⁶ As demonstrated below, what “application” means in this context has been a point of contention.

The Supreme Court has also weighed in on the status of affidavit evidence. In a 2012 decision,⁷ the Court held that affidavits are not considered evidence under Section 3 of the Evidence Act, 1872.⁸ However, if the deponent is available for cross-examination and the opposing party is allowed to cross-examine him, the affidavit can be relied upon.

Inconsistencies in the application of Order 19

Significant inconsistencies have marked the application of Order 19 across Indian courts. This part examines some of them.

One inconsistency can be seen in the application of Order 19 itself. While some courts have interpreted Rule 2 narrowly, others have not. In 1951, the Nagpur High Court ruled that Rule 2 only applied to interlocutory proceedings, not substantive applications.⁹ The court defined substantive applications as those that commence proceedings, whereas interlocutory applications were considered incidental to such proceedings and made while ongoing. However, in 1954, the Nagpur High Court itself rejected this restricted interpretation of ‘any application.¹⁰ It emphasised restricting the interpretation to specific applications would be legislating on the subject. This broader interpretation implies that Rule 2 should apply to all substantive or interlocutory applications. This has been reiterated by the Calcutta High Court as well.¹¹ It also noted that Rule 2 gives discretion in cross-examination in interlocutory applications. The court observed that cross-examination is ordinarily prohibited in interlocutory matters as the delay would defeat the application’s object.

However, Mulla’s commentary agrees with this restricted interpretation of Rule 2.¹² Additionally, it has been held that affidavit evidence can only be allowed under Rule 1 when the Court makes a specific order.¹³ Reading the above propositions together, it is evident that no application for affidavit evidence in a substantive application can be made. Rule 2 only applies to interlocutory matters and Rule 1 requires a court order. This goes against the very wording of the statute.

Another problem that has come up is needless rejection of affidavit evidence. Affidavit evidence has been rejected by courts without even getting into its evidentiary value. In Chowgule & Co. (P) Ltd. v. Radha Krishna Pilyenkar¹⁴, although there were opposing affidavits on record, none was found to be deserving of any serious consideration by the trial court. The High Court correctly condemned this approach arguing that all the evidence are required to be appreciated.

There are also inconsistencies over how ex parte proceedings deal with affidavit evidence. While some courts have been willing to hear cases on affidavits alone among unrepresented litigants, others have condemned the practice. Somlata Goyal v. District Magistrate is an example of the first approach.¹⁵ In this case, the Court based its finding on only an affidavit filed by the plaintiff as there was no counter-affidavit from the defendants. On the other hand, in Sree Visalam Chit Fund Ltd. v. K. Raja Reddy¹⁶, the Court strongly criticised this practice of deciding cases solely on affidavits, particularly in ex parte proceedings. The Court emphasised that parties should have the opportunity to present oral evidence and cross-examine witnesses, even when one party is absent. This was established in Sudha Devi v. M.P. Narayanan¹⁷ where the Court held that ex parte proceedings should not be decided solely on affidavit evidence. While the decision was correct for the specific facts of the case (here, the plaintiff’s witness was unrelated to the case, indicating malice on the plaintiff’s part) the ruling has wider implications.

It fails to consider the practical limitations plaintiffs face when defendants choose not to appear, effectively rewarding their absence. The defendant may choose not to attend the hearing if they know that the plaint lacks substantial evidence. This will make it difficult for the plaintiff to examine them. Later, the defendant can have the decree revoked on the ground that there was no evidence except affidavits. This allows the defendant to avoid the requirements of Order 9 Rule 13 for setting aside an ex parte decree.¹⁸ In this case as well, the defendant has used this loophole. They withdrew their application under Order 9 Rule 13 and rather claimed that the plaint lacked sufficient evidence. This allowed them to sidestep the requirements of Order 9 Rule 13. This approach by the court may inadvertently encourage defendants to strategically avoid proceedings, knowing they can later challenge decrees based on insufficient evidence.

Another inconsistency is how affidavits are treated when the deponent is deceased or unavailable for cross-examination. This issue was highlighted in Amit Jain v. Nemi Chand Jain¹⁹, where the Court held that because the deceased defendant could not be cross-examined, his affidavit (which included admissions favourable to the plaintiff’s case) could not be considered evidence-based admissions. In this scenario, where the plaintiff’s case hinges on affidavit evidence and examination based on it, the deponent’s death prejudices the plaintiff, much like it does in ex parte proceedings (as demonstrated above). It is to be noted that the truth of the information in the affidavit is not in question. It is the principle that affidavit evidence is completely inadmissible, even when no better evidence is available.

Cross-examination of affidavit deponents is another area of divergence. Some courts have held that cross-examination should generally be allowed when requested, while others have given courts wide discretion. For instance, in Lookman v. Indra Singh²⁰, the Rajasthan High Court emphasised the right to cross-examine as fundamental to natural justice. It held that while courts have discretion in allowing cross-examination on affidavits, they should generally permit it unless there are strong reasons not to. This contradicts the whole purpose of interlocutory applications, which require speedy resolution.²¹ Nadella Estate (P) Ltd. v. Prema Ravindranath took a more discretionary approach.²² The court acknowledged the significance of cross-examination but stated that it has the discretion to order the deponent’s attendance for cross-examination. It ruled that the party seeking cross-examination must provide valid reasons and that the court must determine its necessity to avoid any tactics delaying proceedings.

These inconsistencies in applying Order 19 have considerable consequences on the administration of justice. They create uncertainty for litigants and lawyers and may lead to increased litigation costs. Parties may feel compelled to produce oral evidence even in circumstances where affidavit evidence might be sufficient for fear that the court may reject or give little weight to the affidavits. Given such inconsistencies and possible consequences, there is a great need to ensure a more consistent approach in the employment of affidavit evidence.

The best evidence rule: A solution

The “best evidence rule” was first theorised by Gilbert as a principle to subsume the entire law of evidence.²³ It requires that the best available evidence be produced in court. While other scholars have criticised the hierarchy of evidence it created, applying this rule to decide the admissibility of affidavits provides a potential solution to the inconsistencies. If used, affidavits would be accepted as evidence only when they constitute the best available evidence in the circumstances of the case. This would resolve many of the current inconsistencies in the application of Order 19 and provide a clearer framework for courts to follow.

Among the central benefits of the best evidence rule would be that the courts would have to consider the evidentiary value of the affidavit, rather than summarily rejecting it. This addresses the problem in Chowgule case where the trial court rejected affidavit evidence without even considering its value.²⁴ Under the best evidence rule, the courts would then proceed to determine as to whether the affidavit represents the best evidence on a particular point.

This approach would be of particular importance when the deponent is dead or otherwise unavailable for cross-examination. Using the rule in Amit Jain case²⁵ for example, the court would have to consider whether the late defendant’s affidavit was the best evidence available on the points to which it spoke. While the absence of any opportunity for cross-examination might be a reason for giving the affidavit less weight, it would in no way render the affidavit inadmissible, let alone worthless. The rule would serve in a similarly principled way in ex parte proceedings. While in those circumstances affidavits may be admitted as evidence, courts should be required to treat them with a more critical eye and consider whether any better evidence exists. This would solve the doubts expressed in Sree Visalam Chit Fund Ltd,²⁶ on the risks involved when cases are decided solely based on affidavits in ex parte proceedings. Applying the ratio laid down in Sudha Devi case²⁷, it can be said that since it was an ex parte proceeding, the best available evidence was the plaintiff’s affidavit (the truth of the affidavit’s content is a different matter). In a similar vein, the utilisation of affidavit evidence in ex parte proceedings is a settled position in Australia.²⁸

The rule would also provide a clearer standard for when cross-examination should be allowed. Rather than relying on inconsistent interpretations of Order 19 Rule 2²⁹, courts could assess whether cross-examination is necessary to test the reliability of the affidavit evidence. If the affidavit represents the best available evidence and cross-examination is unlikely to produce better evidence, the court can deny a request for cross-examination. On the other hand, if cross-examination is likely to elicit better evidence, the court should allow it. This approach would balance the need for efficiency in court proceedings and the right to cross-examine witnesses.

This will also make the distinction between interlocutory and substantive applications less relevant in the context of affidavit evidence. The focus would be on the quality of the evidence rather than the type of application. This would address the inconsistencies arising from different interpretations of the scope of Order 19 Rules 1 and 2.³⁰ It would also provide a more nuanced approach to the issue of personal knowledge in affidavits. While Order 19 Rule 3 requires affidavits to be confined to facts within the deponent’s personal knowledge (except in interlocutory applications) the best evidence rule would allow for a more flexible approach. If an affidavit based partly on information and belief represents the best available evidence on a point, it might be accepted, with the court taking into account the basis of the deponent’s belief when assessing its weight.

CONCLUSION

The inconsistent application of Order 19 has led to significant challenges in the administration of justice. This paper suggests that adopting the “best evidence rule” as a guiding principle could solve many of these issues. By requiring courts to assess whether an affidavit represents the best available evidence in a given situation, this approach would bring much-needed consistency to using affidavit evidence and enhance the efficiency of civil proceedings in India.