Verification of Affidavits

B. B. MISRA, J. :- This reference to a Full Bench arises out of a petition under Art. 226 of the Constitution seeking a writ of Mandamus commanding the U. P. Government to withdraw its Notification dated June 29, 1968, directing that Oath Commissioners appointed by District Judge under Section 139 of the Code of Civil Procedure were not authorised to verify affidavits relating to the proceedings before the various authorities constituted under the U. P. Consolidation of Holdings Act 5 of 1954, (hereinafter referred to as the Act).

2. The six petitioners, who are lawyers of Azamgarh, were appointed Oath Commissioners by the District Judge of that place by his order dated 19-7-1966 passed under the provisions of S. 139 of the Code of Civil Procedure. Originally, affidavits to be filed, inter alia, before the various authorities constituted under the Act, used to be verified by the petitioners, the propriety of which was also recognised by the U. P. Government under its G. O. No. 3147/VII-AI-45/65 dated March 11, 1968. Subsequently, by G. O. No. 1855/VII-AI-44/65 dated June 29, 1968. the U. P. Government partially modified the aforesaid G. O. dated March 11, 1968, and withdrew its recognition in respect of affidavits to be filed before the Consolidation Authorities saying that in view of judicial pronouncement, they were not Courts of Civil judicature, and, as such, Oath Commissioners were not authorised to verify affidavits relating to proceedings before them. The petitioners challenge the legality of that order of the Government on the ground that the various authorities constituted under the Act are Courts of Civil Jurisdiction.

3. Thus the point for determination is as to whether Oath Commissioners appointed by District Judges are competent to verify the affidavits to be filed before the authorities constituted under the Act.

4. The relevant provisions of the Code of Civil Procedure under which Oath Commissioners are appointed and verify affidavits are to be found in Sections 139 and 141, and Order 19.

5. Affidavits are tendered under O. 19, Rr. 1 and 2 of the Code of Civil Procedure which are to the following effect:-

"1. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs."

6. Section 139 of the Code of Civil Procedure reads thus:-

"In the case of any affidavit under this Code-

(a) any Court or Magistrate, or

(b) any officer or other person whom a High Court may appoint in this behalf, or

© any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent."

7. It is not disputed that under sub-section © of the above section, the U. P. Government has empowered District Judges to appoint Oath Commissioners.

8. Section 141 of the Code of Civil Procedure runs as follows:-

"The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction."

9. On a perusal of the above provisions, it would appear that two conditions must be fulfilled in order that Oath Commissioners appointed by District Judges may be competent to verify the affidavits coming to them. One is that they are to be filed before the Courts w