NotaryCourt
The notary's authority to swear it
This is settled and worth stating plainly, because it is still questioned at counters. Under section 8(1)(e) of the Notaries Act, 1952 a notary may administer an oath to, or take an affidavit from, any person. Section 139(aa) of the Code of Civil Procedure, 1908 names a notary appointed under the Notaries Act, 1952 among those who may administer the oath on an affidavit, and section 333(1)(c) of the Bharatiya Nagarik Suraksha Sanhita, 2023 does the same on the criminal side. Section 8(2) of the Notaries Act completes the picture: nothing is a notarial act unless done under the notary's signature and official seal, so an unsealed page is not an affidavit at all.
Under section 8(1)(ha), inserted in 1999, a notary may also act as a Commissioner to record evidence in any civil or criminal trial if so directed by a court or authority, and under section 8(1)(hb) as arbitrator, mediator or conciliator. Those are separate functions from taking your affidavit.
What goes into an affidavit filed in a proceeding is a matter for you and your advocate. The notary administers the oath and completes the notarial act. We will point out obvious defects in form - an unnumbered set of paragraphs, a missing verification, annexures not identified - but the content, the strategy and the consequences of what is deposed belong to the advocate conducting the matter.
Where affidavits are used in practice
- In support of an interim application, and in reply to one.
- Affidavit of evidence in chief, where the court directs evidence to be led on affidavit.
- Affidavit of service, of documents, or of assets in execution.
- Affidavit accompanying a petition or an appeal, verifying the contents.
- Affidavit in support of an application to condone delay, or to bring legal heirs on record.
- Undertakings given to the court, which are a serious class of their own.
The verification clause carries the weight
The part of the affidavit most often drafted badly is the last part. The verification must distinguish between what the deponent says of personal knowledge and what is said on information and belief, and where a statement is on information, the source must be given. An affidavit that verifies the entire document as "true to my knowledge" when half of it could not possibly be within the deponent's knowledge invites an objection and weakens everything else in it.
Other points of form
- Number the paragraphs. Courts refer to affidavits by paragraph.
- Identify every annexure in the body, and mark the exhibits to match.
- Give the deponent's full description - name, age, occupation, address, and the capacity in which the deponent swears.
- Where the deponent swears for a firm, company or society, state the authority to do so and file it.
- Keep the cause title exactly as it appears on the record, including the case number and the year.
What draws an objection
- No verification clause at all, or a verification that does not separate knowledge from information.
- Argument and law in place of facts. An affidavit states facts; submissions belong elsewhere.
- The wrong deponent - a relative or an employee deposing to matters within the party's own knowledge.
- Corrections and interlineations not initialled by the deponent and the notary.
- Annexures referred to but not filed, or filed without being identified in the body.
- A supplementary or additional affidavit filed without leave, where leave was needed.
- Unsealed, or sealed without an entry in the notarial register.
Practical notes
The deponent must attend in person - an affidavit cannot be sworn on a photograph or over a phone call. Bring photo identity, because identification of the deponent is part of the act. Every affidavit is entered in the notarial register in Form XV under Rule 11(2) of the Notaries Rules, 1956, and a receipt is issued under Rule 11(9), which matters if the swearing is ever questioned. Where the deponent cannot come to the office through illness or age, we attend at the address; travelling allowance is ₹20 per kilometre under Rule 10(3), a ceiling.
Administering an oath or taking an affidavit is capped at ₹35 under Rule 10(1) of the Notaries Rules, 1956. A true copy is ₹10 per page, minimum ₹20. Where stamp duty applies to the instrument, it is as currently prescribed under the Gujarat Stamp Act, 1958 and confirmed at the counter. See notary charges.
What to bring
- The draft affidavit settled by your advocate, in the court's format
- Photo identity of every deponent who will swear
- A copy of the plaint, petition or application it relates to, with the case number
- All annexures, arranged and marked as referred to in the body
- Authority or resolution, where the deponent swears for a firm, company or society
- Vakalatnama or the advocate's instructions, if the affidavit is to be filed the same day