India: Note On Filing Of Evidence By Affidavit Before Arbitral Tribunal

Section 1 of the Evidence Act lays down that it shall neither apply to affidavits, nor to proceedings before an Arbitrator.

1. Short title, extent and commencement –

This Act may be called the Indian Evidence Act, 1872. It extends to the whole of India [except the State of Jammu and Kashmir] and applies to all judicial proceedings in or before any Court, including Courts -martial, [other than Courts - martial convened under the Army Act (44 & 45 Vict., c. 58 )] 4 [the Naval Discipline[29 & 30 Vict.,109] Act or ** the Indian Navy (Discipline) Act, 1934 (34 of 1934),[or the Air Force Act (7 Geo. 5, c. 51) ] but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator;

And it shall come into force on the first day of September 1872.

Similarly S.19 of the Arbitration and Conciliation Act, 1996, stipulates that the Arbitral Tribunal is not bound by the Code of Civil Procedure or the Indian Evidence Act. As such the provisions of the Evidence Act are not applicable to inquiries conducted by tribunals, however, it has been laid down in catena of judgments that the tribunal cannot ignore the principles of natural justice.

Furthermore, though the Evidence Act is not binding upon the proceedings before the arbitral tribunal and the tribunal has the autonomy to fix its own procedure, however, as a matter of practice the tribunal follows the principles regarding relevancy and admissibility of evidence as provided in the Evidence Act.

Provisions of CPC dealing with submissions of affidavit

A civil suit proceeds through the following stages as mentioned – Plaint, Notice/Summons, Written Statement, Rejoinder/Replication, Issues, Evidence, Cross Examination and Final Arguments.

The stage of evidence is dealt with in the Order 18 of the CPC. The Rule 4 of the Order 18 lays down the procedure regarding recording of evidence. Order 18 Rule 4 is as under: -

Rule 4. Recording of evidence

(1) In each case, the examination– in- chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.

Originally Order 18 Rule 4 simply stipulated recording of the oral evidence before the court. After the Amendment of CPC in the year 1999, 7 sub-rules were added, and there was a further amendment in the year 2002. The said amendments have been upheld in the Salem Bar Association v. Union of India Judgments cited in (2003) 1 SCC 49 and (2005) 6 SCC 344

Order 19 lays down the procedure required for admission of an affidavit before the court.

Though evidence can be adduced by way of affidavits, it cannot be relied upon until the deponent is available for cross-examination1.

It has also been held by the Hon'ble Supreme Court that in case of a living person, evidence must be tendered by calling the witness to the stand and not by submission of affidavit unless the law permits the same.2

The rule regarding submission of affidavit instead of oral examination-in-chief has been made for the purpose of speeding up the disposal of a suit.

S. 30 of the CPC also stipulates proving of a certain fact by way of affidavit; however, the same is subject to the discretion of the court and the powers under the order 19.

Order 19 Rule 1 vests the court with the power to pass an order to allow any point to be proven by way of an affidavit. Still it does not mean that the affidavit submitted in furtherance thereof will be considered as an evidence. The contents of the said affidavit are subject to the cross-examination of the person deposing through the said affidavit.

Order 19 Rule 3 clearly outlines the matters to which the affidavit should be confined.

Rule 3. Matters to which affidavits shall be confined.

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

Furthermore, the Rule 6 (as inserted by the Commercial Courts Act, 2015) of the Order 19 provides the guidelines for submission of any point on affidavit, which can be summarized as below:

(a) such affidavit should be confined to, and should follow the chronological sequence of the dates and events that are relevant for proving any fact or any other matter dealt with;

(b) where the court is of the view that an affidavit is a mere reproduction of the pleadings, or contains the legal grounds of any party's case, the court may, by order, strike out the affidavit or such parts of the affidavit, as it deems fit and proper;

(c) each paragraph of an affidavit should, as far as possible, be confined to a distinct portion of the subject;

(d) an affidavit shall state —

(i) which of the statements in it are made from the deponent's own knowledge and which are matters of information or belief; and

(ii) the source for any matters of information or belief;

(e) an affidavit should—

(i) have the pages numbered consecutively as a separate document (or as one of several documents contained in a file);

(ii) be divided into numbered paragraphs;

(iii) have all numbers, including dates, expressed in figures; and

(iv) if any of the documents referred to in the body of the affidavit are annexed to the affidavit or any other pleadings, give the annexures and page numbers of such documents that are relied upon.

Furthermore, it has been held by the Hon'ble Allahabad High Court that affidavit of evidence must contain the evidence of the deponent as to such facts only, of which he is in a position to speak from his own knowledge3.

Where evidence is adduced by affidavits, such affidavits may be properly verified either from knowledge or from source. But the basis of such knowledge or source of information must be strictly stated.

Footnotes

1 Ayaaubkhan Noorkhan Pathan v. State of Maharashtra – (2013) 4 SCC 465

2 Munir Ahmed v. State of Rajasthan – 1989 Supp (1) SCC 387

3 Brijlal v. State of UP – AIR 1954 All 393

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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