Affidavits (Order XIX)

Order XIX of the Code of Civil Procedure, 1908 governs the use of affidavits as evidence in a civil court. Three rules — short, but doctrinally dense — supply the entire architecture. Rule 1 confers the power on a court to order any particular fact to be proved by affidavit, or to allow the affidavit of a witness to be read at the hearing, on conditions the court thinks reasonable. Rule 2 supplies the cross-examination right: where evidence is given by affidavit on any application, the court may, at the instance of either party, order the attendance of the deponent for cross-examination. Rule 3 sets the boundary: affidavits shall be confined to facts the deponent can prove of his own knowledge — except on interlocutory applications, where statements of belief may be admitted, provided the grounds are stated.

This chapter sets out the statutory anchor and scheme, the doctrinal status of an affidavit as evidence under Section 3 of the Indian Evidence Act, the cross-examination right under Rule 2, the personal-knowledge rule under Rule 3, the special drafting requirements introduced for commercial disputes by the Commercial Courts Act, 2015, and the practical guidance for drafting and challenging affidavits in trial-court practice.

Statutory anchor and scheme

Order XIX is the doctrinal companion to Order XVIII Rule 4, which since the 1999 amendment requires examination-in-chief on affidavit. The bridge between the two operates after the regime on adjournments under Order XVII has fixed the trial date and the witnesses are ready to depose. Order XIX supplies the residual regime: where Order XVIII Rule 4 mandates the affidavit form for chief examination, Order XIX governs every other use of affidavit evidence — interlocutory applications, evidence by consent, evidence on certain factual issues by court order, and the general drafting and verification rules. The two Orders read together supply the complete framework for affidavit evidence in civil litigation.

The scheme rests on a simple proposition: an affidavit is a written statement on oath, but oath alone does not convert it into "evidence" within the meaning of the Indian Evidence Act, 1872. As the Supreme Court emphasised in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, an affidavit is not evidence within the meaning of Section 3 of the Evidence Act and can be used as evidence only if, for sufficient reasons, the court passes an order under Order XIX. The court's order is the doctrinal switch that transforms an affidavit from a procedural document into evidentiary material — a position consistent with the broader managerial premise of the Code, examined in our chapter on the Code of Civil Procedure as a whole. The form discipline mirrors the broader requirements on pleadings under Order VI, where the same anti-argumentative restraint applies — affidavits, like pleadings, must contain material facts, not the law and not the argument.

Rule 1 — power to order proof by affidavit

Rule 1 confers two distinct powers on the court. First, the court may, at any time and for sufficient reason, order that any particular fact or facts may be proved by affidavit. Second, the court may order that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. Both powers are discretionary; both are conditioned on "sufficient reason"; and both are subject to the proviso that where it appears 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 evidence to be given by affidavit.

The proviso is the doctrinal limit. The court cannot displace the right of cross-examination by ordering proof on affidavit where the opposite party genuinely desires to test the witness viva voce, and the witness can be produced. The Uttar Pradesh amendment of 1976 sharpens the proviso: if at any stage — before or after the affidavit is filed — the court is satisfied that production for cross-examination is necessary and the witness's attendance can be procured, the court shall order attendance, whereupon the witness may be examined, cross-examined and re-examined as in the ordinary course.

The Karnataka High Court in Munibasappa v. Gurusiddaraja, AIR 1959 Mys 159, supplied the resolution to the long-standing conflict between two views on the evidentiary status of an affidavit. One view, traceable to the Bombay decision in Marneedi Satyam v. Venkataswami, AIR 1949 Bom 252, held that an affidavit should not be treated as evidence unless the parties agree. The other view, in Kanhaiyalal v. Meghraj, AIR 1954 Raj 250, held that an affidavit is evidence, but the opposite party has the right to call the deponent for cross-examination. The Mysore High Court reconciled the two: while it would not be correct to say that an affidavit is not evidence, it is not evidence on which a decision could be based unless the parties agree. The Supreme Court's later position in Ayaaubkhan Pathan aligns with the Mysore view in substance.

Matrimonial cases and the special-footing rule

The Calcutta High Court in Stones v. Stones, AIR 1935 Cal 471, established the long-standing position that it is contrary to practice to act on an affidavit as evidence in matrimonial cases. Matrimonial litigation stands on a special footing — the law expects the judge himself to be satisfied of certain facts; it is not merely a contest between two litigants; the interests of children and the public interest may be involved. The Madras High Court in Sunil Masih v. Elizabeth Daisy Masih, AIR 2001 Mad 195, applied the rule in a divorce proceeding on the ground of adultery, holding that unless the statute permits evidence by affidavits, they cannot be accepted nor can reliance be placed on facts stated therein.

The position is qualified for interim relief. The Calcutta High Court in Sebanti Goswami v. Sagnik Goswami, AIR 2002 Cal 71, held that for the purpose of disposal of an application for maintenance pendente lite, the court can act on documents called for from the husband's employer, supported by affidavit. The Orissa High Court in Sambit Parija v. Surita Parija, AIR 2002 Ori 96, took the same approach to interim maintenance under Section 24 of the Hindu Marriage Act, 1955: the purpose behind Section 24 is to provide immediate financial support; if such proceedings are to be disposed of as a suit after taking evidence under all circumstances, the whole purpose of the provision would be frustrated. The carve-out for interim relief is therefore consistent with the broader matrimonial-case rule — the limit is on the use of affidavits to decide the substantive matrimonial claim, not on their use to support interim measures. The same logic underpins the affidavit regime for parties in suits by or against minors, where the next-friend's affidavit on minor's interest is treated as supporting material rather than substantive evidence.

Rule 1 and temporary injunctions

The Allahabad High Court in Satya Prakash v. First Additional District Judge, Etah, AIR 2002 All 326, held that the ingredients for grant of temporary injunction are to be proved by affidavit as envisaged under Order XXXIX Rule 1. The power given to the court to act on affidavit in this context is unfettered and is not subject to the provisions of Order XIX Rules 1 and 2 — temporary-injunction practice has its own affidavit regime, doctrinally adjacent to but procedurally independent of Order XIX. The same logic extends to interlocutory applications generally: the court has a power, anchored in the proviso to Rule 3(1), to receive statements of belief on interlocutory applications, provided the grounds are stated. The relationship to trial-stage examination of witnesses under Order XVIII is one of contrast, not continuity — interlocutory affidavits operate on a relaxed evidentiary standard, trial affidavits do not.

Rule 2 — attendance of deponent for cross-examination

Rule 2(1) supplies the cross-examination right: 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. Sub-rule (2) requires such attendance to be in court, unless the deponent is exempted from personal appearance or the court otherwise directs.

The scope of the word "application" in Rule 2 has been the subject of two competing readings. The Andhra Pradesh High Court in Saraswathamma v. Amruthamma, AIR 1957 AP 226, took the narrower view: "application" means an interlocutory application — for injunction, attachment before judgment, appointment of receiver — not a substantive application. The Rajasthan High Court in Kanhaiyalal v. Meghraj, AIR 1954 Raj 250, took the broader view: the language is wide enough to comprehend substantive as well as interlocutory applications. The Karnataka High Court in Vishwanath Singh v. Shivalingaiah, AIR 1982 Kar 109, applied the broader reading, holding that an application under Order XXXIX can be dealt with on the basis of affidavits and falls under Rule 2; the order permitting affidavit evidence does not call for High Court interference.

The same court in Vishwanath Singh made an important constitutional point. A deponent directed to come to the witness box for cross-examination is not entitled to protection under Article 20(3) of the Constitution. Where the plaintiff alleges that the defendant has committed offences under Sections 192, 193 and 196 of the Indian Penal Code (now Sections 227, 229 and 232 of the Bharatiya Nyaya Sanhita, 2023), the defendant does not thereby acquire the status of "accused" so as to seek protection under Article 20(3); the protection against testimonial compulsion can be claimed only after the deponent mounts the witness box and is confronted with incriminatory questions.

The Punjab and Haryana High Court in S.D. Jain v. Rakesh Jain, AIR 1986 P&H 254, supplied the procedural complement: an order rejecting an application seeking the cross-examination of the deponent of an affidavit is not a "case decided" within the meaning of Section 115; hence no revision lies against such an order. The remedy is to await the final order in the application or in the suit, and take the refusal as a ground of objection in the appeal or revision against the final order.

Rule 3 — confined to personal knowledge

Rule 3(1) is the central drafting discipline. 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. Sub-rule (2) supplies the costs sanction: the costs of every affidavit which unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

The Supreme Court in A.K.K. Nambiar v. Union of India, AIR 1970 SC 652, supplied the foundational rule that anchors the wider drafting discipline traced in our chapter on plaint drafting: an affidavit without verification is not admissible in evidence; it is from verification that the court can find out which facts are proved on affidavit evidence. The Court in Barium Chemicals v. Company Law Board, AIR 1967 SC 295, added the corollary: where an averment is not based on personal knowledge, the source of information must be stated. The two rules together supply the modern drafting test — every paragraph of an affidavit must be classified as either personal knowledge or information; in the latter case, the source of information must be disclosed, and where the deponent claims belief, the grounds of belief must be stated with sufficient particularity to enable the court to judge whether it would be safe to act on the deponent's belief.

The Bombay High Court in Competent Authority v. Dhamji Vijendra Mehta, AIR 1997 Bom 51, applied the rule strictly: where no statement is made in an affidavit as to which paragraphs are true to the personal knowledge of the deponent and which are true on the basis of information and belief, the affidavit is not valid in the eye of the law. The Karnataka High Court in V.R. Kamath v. Divisional Controller, KSRTC, AIR 1997 Kar 137, held that the making of the endorsement on the affidavit, recording the particulars and obtaining the signature in the register, is an integral part of the act of attestation; unless this is done, the act of administering the oath is incomplete and the affidavit cannot be said to be duly attested.

Verification, language, and identification

The Calcutta High Court in Rashid v. Calcutta Municipal Corporation, AIR 1990 Cal 253, held that where the text of an affidavit was in English and there was no evidence to show that its contents were explained to the executant, the affidavit could not be relied upon. The principle is straightforward — the deponent must understand what he is swearing to. The Allahabad High Court rules elaborate the discipline at length: every affidavit must be divided into numbered paragraphs, each confined as far as possible to a distinct portion of the subject; the person making the affidavit must be described in such manner as to identify him; and the person before whom the affidavit is made shall, before its making, ask whether the deponent has read and understood the contents — and if not, shall read and explain or cause it to be read and explained.

The Supreme Court in Quamarul Islam v. S.K. Kanta, AIR 1994 SC 1733, added a procedural limit: in an election petition, the petitioner filed two affidavits — the first on the basis of "belief of information," the second, after evidence and arguments, on the basis of "personal knowledge." The Court held that such a procedure was impermissible in civil or election law. A deponent cannot upgrade the basis of his averment after the evidence is led; the affidavit's evidentiary value is fixed at the moment of swearing.

The Commercial Courts Act, 2015 — Rules 4, 5, 6

The Commercial Courts Act, 2015, by Section 16 read with Schedule, inserted three additional rules in Order XIX for suits in respect of commercial disputes of specified value. Rule 4 empowers the court, by directions, to regulate the evidence as to issues on which it requires evidence and the manner in which such evidence may be placed before the court; sub-rule (2) permits the court, in its discretion and for reasons recorded in writing, to exclude evidence that would otherwise be produced by the parties.

Rule 5 supplies the redaction power: a court may, in its discretion and for reasons recorded in writing, redact or order the redaction of such portions of the affidavit of examination-in-chief as do not, in its view, constitute evidence; or return or reject an affidavit of examination-in-chief as not constituting admissible evidence. The provision is the procedural complement to Order XVIII Rule 4 — where chief examination on affidavit produces material that does not constitute evidence, the court is empowered to strike it out at source rather than wait for the cross-examination stage.

Rule 6 supplies the form and guidelines. The affidavit must be confined to, and must follow the chronological sequence of, the dates and events that are relevant for proving any fact or matter dealt with. 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 as it deems fit and proper. Each paragraph should be confined to a distinct portion of the subject. The affidavit shall state which of the statements are made from the deponent's own knowledge and which are matters of information or belief, and the source for any matters of information or belief. Pages must be numbered consecutively; numbers including dates expressed in figures; annexures and page numbers given for documents referred to in the body.

Government affidavits and binding effect

The Supreme Court in Sanjay Kumar Sinha v. State of Bihar, AIR 2004 SC 4145, held that where a senior officer of the Government files an affidavit on the basis of the record of the Government, it is not proper for the Government to turn back and contend that the affidavit does not represent the view of the Government — particularly when the same view was reiterated by the Government in the counter-affidavit in response to a special leave petition. The Supreme Court in Rural Litigation & Entitlement Kendra v. State of UP, AIR 1988 SC 2187, took the same view: where the Court directed the Union to file an affidavit and the affidavit was filed by the Secretary, it cannot be brushed aside on the ground that the statement therein indicates the department's submission to court rather than the Union's; the Secretary is assumed to have disclosed the stand of the Union with full authority and with the intention of binding the Union by his statement.

The general position on Government admissions in affidavits, summarised by the Supreme Court in N.C. Singhal v. Union of India, AIR 1980 SC 1255, is that they would be operative for purposes of the particular proceeding. The admission does not necessarily bind the Government beyond the scope of the proceeding in which the affidavit is filed; but within that scope, it is conclusive and the Government cannot resile from it without express leave.

Distinguishing Order XIX from cognate provisions

Three procedural distinctions matter. First, between Order XIX Rule 1 (court may order proof by affidavit) and Order XVIII Rule 4 (chief examination must be on affidavit): Rule 4 mandates the affidavit form for chief examination at trial; Rule 1 supplies the residual power to order proof on affidavit on any other matter, subject to the cross-examination proviso. The two are doctrinally distinct — Rule 4 is mandatory, Rule 1 is discretionary. Second, between Order XIX Rule 2 (cross-examination on affidavit evidence) and Order XVIII Rule 4(2) (cross-examination at trial): Rule 2 is a one-shot opportunity tied to a particular application; Rule 4(2) is the trial-stage architecture for examining witnesses generally. Third, between Order XIX Rule 3(1) (personal knowledge required, except on interlocutory applications) and the substantive law of evidence under Section 3 of the Indian Evidence Act: Rule 3(1) is a drafting discipline; the substantive rule of evidence is set by the Evidence Act and operates at the stage of judicial appreciation.

A fourth distinction is doctrinally important. Order XIX governs affidavits within civil litigation under the Code; affidavits in writ proceedings are governed by Article 226 jurisprudence and the rules made by the High Court on its writ side; affidavits in arbitration proceedings are governed by the Arbitration and Conciliation Act, 1996. The relationship to discovery and inspection is also worth noting — answers to interrogatories under Order XI are themselves on affidavit, and the Order XIX drafting discipline applies to them. The drafting disciplines of Rule 3 — personal knowledge, source of information, grounds of belief — are largely common, but the procedural setting and the cross-examination rights differ.

MCQ angle — the recurring distinctions

Three propositions recur in prelims. First, an affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act unless either the parties agree or the court orders under Order XIX Rule 1; the deponent must, in addition, be available for cross-examination if the opposite party so requires under Rule 2. The Ayaaubkhan Pathan case is the modern locus for this proposition. Second, the proviso to Rule 1 is mandatory — where either party bona fide desires the production of a witness for cross-examination, and the witness can be produced, an order for proof on affidavit shall not be made. Third, Rule 3(1) requires the affidavit to be confined to facts within the deponent's personal knowledge, except on interlocutory applications where statements of belief may be admitted, provided the grounds are stated.

Two further distinctions are worth carrying forward. The Stones v. Stones rule for matrimonial cases — that affidavits cannot ordinarily be used as evidence of matrimonial offences — does not extend to applications for interim relief, where Sections 24 and 26 of the Hindu Marriage Act and the corresponding interim provisions of the special matrimonial statutes contemplate disposal on affidavit. And the Commercial Courts Act, 2015 introduced Rules 4, 5 and 6 in Order XIX exclusively for commercial disputes of specified value — Rule 5 in particular gives the court the power to redact or reject an affidavit of chief examination as not constituting admissible evidence.

Practical takeaways for the trial-court practitioner

Three practical points. First, draft every affidavit with the personal-knowledge/information distinction explicit at the foot of the verification: paragraphs X to Y are true to my personal knowledge; paragraphs A to B are true on the basis of information received from [source], which I verily believe to be true. The Competent Authority and Nambiar cautions are severe on undifferentiated verifications. Second, when filing an affidavit on an interlocutory application, anticipate that the opposite party may seek the deponent's attendance for cross-examination under Rule 2 — be prepared to produce the deponent, since refusal weakens the affidavit's evidentiary weight. Third, where the proceeding is matrimonial in nature, do not rely on affidavits for the substantive matrimonial offence; reserve the affidavit for interim relief applications where the special-footing rule does not bar use.

Order XIX is the doctrinal hinge between procedural and evidentiary law in civil litigation. The next chapter, on judgment and decree under Section 33 and Order XX, addresses what happens after the evidence — including affidavit evidence — has been received and the court turns to disposing of the suit by judgment.

Frequently asked questions

Is an affidavit, by itself, evidence in a civil court?

No. The Supreme Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, held that an affidavit is not 'evidence' within the meaning of Section 3 of the Indian Evidence Act and can be used as evidence only if the court passes an order under Order XIX for sufficient reasons. Even where so ordered, the deponent must be available for cross-examination if the opposite party requires it under Rule 2. The Karnataka High Court in Munibasappa v. Gurusiddaraja, AIR 1959 Mys 159, supplied the same proposition: while it would not be correct to say an affidavit is not evidence, it is not evidence on which a decision could be based unless the parties agree or the court so orders.

Can the court order proof by affidavit even if a party objects?

Yes, under Rule 1 — but subject to the proviso. The court may order any particular fact to be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on conditions the court thinks reasonable. The proviso, however, is mandatory: where either party bona fide desires the production of a witness for cross-examination, and the witness can be produced, an order shall not be made authorising the evidence to be given by affidavit. The proviso is a doctrinal safeguard — the right of cross-examination cannot be displaced where genuinely sought and feasible.

What must an affidavit on an interlocutory application contain under Rule 3?

Personal knowledge or belief, with the grounds stated. Rule 3(1) requires affidavits to be confined to facts the deponent can prove of his own knowledge — except on interlocutory applications, where statements of belief may be admitted, provided the grounds are stated. The Supreme Court in A.K.K. Nambiar v. Union of India, AIR 1970 SC 652, held that an affidavit without verification is not admissible. The Court in Barium Chemicals v. Company Law Board, AIR 1967 SC 295, added that where the averment is not based on personal knowledge, the source of information must be stated. Lack of these particulars renders the affidavit defective.

Can an affidavit be used as evidence in a matrimonial case?

Generally no, for substantive matrimonial offences; yes, for interim relief. The Calcutta High Court in Stones v. Stones, AIR 1935 Cal 471, established that matrimonial litigation stands on a special footing — the law expects the judge himself to be satisfied, the interests of children and the public interest may be involved, and affidavits cannot ordinarily be used as evidence. The position is qualified for interim relief: the Calcutta High Court in Sebanti Goswami v. Sagnik Goswami, AIR 2002 Cal 71, and the Orissa High Court in Sambit Parija v. Surita Parija, AIR 2002 Ori 96, held that maintenance pendente lite under Section 24 of the Hindu Marriage Act, 1955 can be disposed of on affidavits — the purpose of immediate financial support would otherwise be frustrated.

Does Article 20(3) protect a deponent called for cross-examination under Rule 2?

No — until the deponent is in the witness box and is confronted with incriminatory questions. The Karnataka High Court in Vishwanath Singh v. Shivalingaiah, AIR 1982 Kar 109, held that a deponent directed to attend for cross-examination is not entitled to protection under Article 20(3) of the Constitution. Even where the plaintiff alleges that the defendant has committed offences under the IPC (now BNS), the defendant does not thereby acquire the status of an 'accused' so as to claim Article 20(3) protection at the affidavit stage. The protection becomes available only when the deponent is in the witness box and incriminatory questions are put to him.

What additional rules apply to affidavits in commercial disputes?

The Commercial Courts Act, 2015 inserted Rules 4, 5 and 6 in Order XIX for suits in respect of commercial disputes of specified value. Rule 4 empowers the court to regulate evidence by directions and to exclude evidence for reasons recorded. Rule 5 confers the redaction power: the court may redact portions of the affidavit of chief examination that do not constitute evidence, or reject the affidavit altogether as not constituting admissible evidence. Rule 6 supplies form and guidelines: the affidavit must follow chronological sequence, must not be a mere reproduction of pleadings, must distinguish personal knowledge from information, must number pages consecutively, and must give annexures and page numbers for documents referred to.