Report No. 163
2.6. Clause 2 of the Amendment Bill proposing to insert sub-section (2) in section 26 making it obligatory upon the plaintiff to file an affidavit in support of the facts stated in the plaint.-
A similar provision has been proposed in Order VI. The proposal is to insert sub-rule (4) in rule 15 of Order VI providing that "The person verifying the pleading shall also furnish an affidavit in support of his pleadings". Obviously, this would cover the written statement also.
2.6.1. The response of members of the Bench as well as the Bar has been uniformly against the above proposals. The general view expressed by them is that such a provision would only add to the delays in disposal of suits. It was submitted that there are enough provisions in the existing law to deal with false and malicious averments in the pleadings and that this additional requirement would not make any difference.
By way of example, the participants in several conferences referred to a similar requirement in support of facts stated in the writ petitions and counters and other affidavits filed in the writ proceedings which had in no manner operated as a check upon the tendency to make false statements. It was also observed that the pleadings acquired the character of evidence with the filing of affidavit in support of the pleadings. In such an event, a party could even call the other party to cross-examine him with respect to the facts stated in his pleadings.
2.6.2. The Law Commission is, however, of the opinion that the proposed amendments are salutary and may, at least to some extent, check the tendency to make false averments in the pleadings. In this connection, the Commission recalls the following observation of George Bernard Shaw. "the theory of legal procedure is, if you set two liars to expose one another, truth will emerge". Probably it was meant as a satire, made in his typical style, on the type of pleadings in courts and to emphasise the tendency to make false averments in the pleadings.
This tendency has certainly to be checked. Even if the parties in two to five per cent cases could be dealt with appropriately for making false statements in the pleadings, it would greatly help in arresting this tendency. In any event, the measures proposed may be tried out on an experimental basis and if it is found to cause further delays, as apprehended by many participants in the conferences, the same could be reviewed.
It should, however, be clarified that the party swears to the correctness of only the facts stated in the pleadings and not to the questions or propositions of law, if any, stated therein. It should also be open to the party to say in his affidavit which of the facts are true to his knowledge and which of the facts he believes to be true on the basis of information received by him. It may not be inappropriate to refer to observations of the Supreme Court in the following cases:
In Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757, para. 33, it was held:
"The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses.
Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence commits criminal contempt of the Court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the rule of Law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake.
It would be a great public disaster if the foundation of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a court of law. The stream of justice has to be kept clean and pure and anyone soiling its purity must be dealt with sternly so that the message percolates loud and clear that no one can be permitted to undermine the dignity of the court and interfere with the due course of judicial proceedings or the administration of justice..."
In Mohan Singh v. Late Amar Singh through the LRs., 1998 (5) Scale 115, the Supreme Court stressed the consequences of filing false affidavits in courts, by holding as under:-
"36. Tampering with the record of judicial proceedings and filing of false affidavit, in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity. Since, we are prima facie satisfied that the tenant has filed false affidavits and tampered with judicial record, with a view to eradicate the evil of perjury, we consider it appropriate to direct the Registrar of this Court to file a complaint before the appropriate court and set the criminal law in motion."
In view of these rulings, the Law Commission considers that the suggested amendment is appropriate.