RAMJIBAN BHUTTACHARJEE Vs. AHMED KHAN

JUDGEMENT

(1.) The present petitioner instituted on the 27 July, 1908, in the Court, of the 4 Munsif, Tamluk, a suit for the recovery of money due on a bond. On the 8 August 1909, the plaintiff appeared in the Munsif's Court to prove service of process on the defendant and filed in support of that proof an affidavit sworn in the Bar Library by the identifier before a pleader who is also an Honorary Magistrate. The Munsif refused to accept the affidavit and directed the petitioner to have an affidavit sworn before the officer of the Court appointed for that purpose. Thereafter on the same date the petitioner appeared again before the Munsif with an affidavit of the identifier sworn before another pleader Honorary Magistrate. The Munsif refused to accept the affidavit and dismissed the suit for default.

(2.) On the 28 August, the petitioner made an application to this Court and a rule was issued on the opposite party to show cause why the suit by the petitioner should not be restored and the Munsif directed to accept the affidavit filed on behalf of the petitioner, as a, good and proper one on the grounds stated in the petition.

(3.) The Munsif has held that, as the pleader was not acting as an Honorary Magistrate when the affidavit was sworn before him and, as it was not known whether the signature was genuine, it would not be safe to take judicial notice of the signature and accept the affidavit. He further pointed out that he was unable to accept the affidavit as the rule of the High Court regarding the registration and defacement of stamps on the affidavit could not be complied with. He also held that as the Honorary Magistrate had not been sitting as to Court, no seal of the Court had been attached to the document as a voucher of the authenticity of the signature.