MANJU Vs. GHANSHYAM

JUDGEMENT

(1.) THIS batch of appeals were listed for rectification of default, the same being, the affidavit that has been filed in support of the application for condonation of delay preferred under Section 5 of the Limitation Act, 1963 in each case has been sworn to by the Oath Commissioner instead of Notary under the Notaries Act, 1952. Though the aforesaid matters were listed for rectification of the aforesaid singular default which has been pointed out by the Registry. Mr. A. M. Trivedi, learned senior counsel, Mr. P. C. Paliwal, Mr. Imtiyaz hussain Mr. Ashok Lalwani, Mr. Greeshm jain, Mr. K. N. Fakaruddin, Mr. Ashish shroti, Mr. Ashish Trivedi, Mr. N. S. Parmar, mr. D. K. Sharma and Mr. Vipin Sharma, advocates addressed this Court that the default pointed out by the Registry is absolutely erroneous as such a default does not emerge if the provisions engrafted in various enactments and rules framed by the high Court of Madhya Pradesh from time to time are scrutinized in proper perspective and further in view of the decisions in the field governing the said facet.

(2.) AT the very outset it is seemly to state that there is no dispute that the affidavits in these appeals have been sworn to by the oath Commissioner. Mr. A. M. Trivedi, learned senior counsel leading the argument has commended us to the Rule 1 of Chapter 3 of M. P. High Court Rules and Orders.

(3.) ON the bedrock of the aforesaid Rule it is urged that the persons who have the authority under Section 297 of the Code of criminal Procedure and Section 139 of the code of Civil Procedure are the persons empowered to administer oath or receive solemn affirmation for the affidavits used in the proceeding before the High Court. Learned senior counsel has commended us to the Division bench decision rendered in the case of Bhagwati Prasad Singhal v. State of Madhya Pradesh (MP No. 4033/1993 decided on 9-5-2005)reported in 2005 (3) Jab LJ 166. Quite apart from the above learned counsel have invited our attention to the decision rendered by Constitution Bench of the Apex Court in Kamal Narain Sarma v. Dwarka Prasad Mishra, AIR 1966 SC 436, and a decision rendered by the Division bench of Allahabad High Court in Sajjain kumar v. C. L. Verma, AIR 2006 Allahabad 36. It is canvassed by them that the view expressed by the Division Bench of this court in Smt. Manju Singh Parmar v. Brij kishore Palod (MCC No. 1962/2007 decided on 3-9-2007) (reported in 2007 (4) MPHT 409) runs counter to the decision rendered in Bhagwati Prasad Singhal (supra) and, therefore, it does not have the precedential value if the fundamental concept of precedent is taken into consideration and law laid down by the Full Bench in Jabalpur Bus operators Association v. State of M. P. , 2003 (1) MPJR 158 : AIR 2003 MP 81. Learned counsel for the parties have further propounded that Section 139 of the CPC and s. 297 of the Cr. P. C. in unequivocal and categorical terms authorise the Oath commissioner to administer the oath or receive solemn affirmation in the case of affidavit for any purpose, for the simon pure reason the said provisions by the express and unambiguous language used therein so postulate. A decision rendered in Shashi bhushan Bajpai v. Madhavrao Scindia, AIR 1998 MP 31 has also been pressed into service to pyramid the stand that an affidavit sworn to by the Oath Commissioner for the purpose of proceeding before the High Court cannot be treated to be illegal, unjust and unacceptable. The learned counsel have further, to bolster their stand and reinforce the stance, placed reliance on the decision rendered in the case of Maharishi Mahesh Yogi shiksha Prasaar Samiti v. State of M. P. (Writ petition No. 14211 /2007) decided on 26-10- 2007.