{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.126 OF 2009 Devidasrao s/o Janardhan Niware & others APPELLANTS VERSUS Ratnakant s/o Uttamrao Niware & others RESPONDENTS ....... Mr. S.B.Ghatol Patil, Advocate for appellants ....... [CORAM : A.V.POTDAR, J.] DATE: 25th March 2010 PER COURT: 1. Heard learned counsel for the appellants. None for respondents, though served. 2. By this appeal from order the appellants / original plaintiffs have assailed the judgment dated 14.08.2009 passed in RCA No.11/2006. By the said judgment the District Judge III, Aurangabad has set aside the judgment of the trial court and remanded the matter to the trial court with certain directions. 3. In the judgment of the first appellate court it is observed that though the suit was decreed ex-parte by the trial court on the basis of an affidavit of evidence filed by the original {2} plaintiff in RCS No.35/2005, yet the said affidavit is not as per the parameters given in the Civil Procedure Code and other laws. 4. Perusal of the said affidavit indicates that the affidavit is not properly verified. 5. Rules regarding how to file an affidavit are given in Order XIX of the Civil Procedure Code. Sub Rule 3 of Order XIX mandates that every affidavit to be verified properly. 6. Chapter XXVI of the Civil Manual deals with Oaths and Affidavits. Article 511 of the Civil Manual mandates as how to use affidavit in the Courts. Article 511 (4) of the Civil Manual speaks about the verification in respect of the contents of the affidavit, which reads as - The declarant shall state what paragraphs or portions of his affidavit he swears of solemnly affirms to from his own knowledge and what paragraphs or portions he swears or solemnly affirms to on his own belief, stating the grounds of such belief. 7. Thus, it is mandatory for the declarant to state as to what paragraphs or portions of his affidavit he swears of solemnly affirms from his knowledge and what paragraphs or portion he swears to his own belief stating grounds for such belief. {3} 8. Way back in the year 1970, Rule is given by the Apex Court in the matter of “A.K.K.Nabiar V/s Union of India” reported in AIR 1970 SC 652. The Apex Court has observed thus: “The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence.(underline is mine). 9. Thus, from the provisions of the Civil Procedure Code, the Civil Manual and from the ruling cited supra, it is clear that if the affidavit is not properly verified, it cannot be admitted in evidence and cannot be read in evidence. 10. It is observed by the first appellate court, may be without quoting these legal provisions, that the affidavit filed by the appellant/plaintiff cannot be treated as admissible evidence, as it is not complying the legal norms. On perusal of the affidavit on record it is clear that the same is not properly verified. Apart form it, after the affidavit was tendered, it appears that the below the said affidavit remarks are put by the learned CJJD “R & {4} R” (Read and Recorded), which indicates that even the learned trial court has not taken care to ask the plaintiff/appellant/ witness to step into the witness box and get the facts stated in the affidavit verified. It is clear that the judgment and decree passed on the basis of the affidavit which was filed without complying the necessary formalities, is nothing but nullity in the eye of law and accordingly the evidence given by the appellant before the trial court was not rightly accepted by the first appellate court and for the reasons recorded in his judgment, the first appellate court has remanded the matter to the trial court with certain directions. Considering the observations of the first appellate court, I am of the considered view that no interference is required in the order impugned in this Appeal From Order. 11. In the result, the Appeal From Order, which is sans merits, stands dismissed summarily. [A.V.POTDAR, J.] drp/A10/ao126-09 {5} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.13341 OF 2009 IN APPEAL FROM ORDER NO.126 OF 2009 Devidasrao s/o Janardhan Niware & others APPELLANTS VERSUS Ratnakant s/o Uttamrao Niware & others RESPONDENTS ....... Mr. S.B.Ghatol Patil, Advocate for appellants ....... [CORAM : A.V.POTDAR, J.] DATE: 25th March 2010 PER COURT: 1. As the Appeal From Order No.126/2009 is dismissed summarily, this Civil Application does not survive and hence stands disposed of accordingly. [A.V.POTDAR, J.] drp/A10/ao126-09