Court sets aside trial court order allowing affidavit sworn by counsel, emphasizing affidavit must be personally sworn by plaintiff to establish relevancy and admissibility of documents
In a significant judgment delivered on September 10, 2026, the Kerala High Court, presided over by Justice Easwaran S., clarified the scope of a lawyer's authority to swear affidavits on behalf of a plaintiff in civil litigation, particularly in suits for partition. The Court held that a lawyer cannot swear an affidavit seeking permission to produce additional documents unless the facts stated therein are within the personal knowledge of the lawyer. Affidavits containing statements beyond the counsel's personal knowledge are impermissible and exceed the authority granted under the Advocates Act.
The case arose from a partition suit where the plaintiff's counsel filed an application for producing additional documents after the defendant began adducing evidence. The affidavit supporting the application was sworn by the counsel himself, not the plaintiff. The trial court accepted this affidavit, allowing the application on the premise that the relevancy and admissibility of the documents could be assessed at a later stage.
Challenging this order, the petitioners contended that such affidavits should be sworn by the plaintiff personally, as only the plaintiff can verify the relevancy and admissibility of documents related to the suit. The High Court agreed with the petitioners, citing the precedent set in Abdul Kareem v. State of Kerala [2006 (2) KLT 408], where it was held that affidavits by lawyers are only valid when facts lie within their personal knowledge, such as applications for condonation of delay.
Justice Easwaran observed that it is "beyond comprehension" that a lawyer could swear an affidavit on behalf of the plaintiff in seeking permission to produce documents, which involves facts known only to the plaintiff. The Court found that the trial court erred in accepting such an affidavit and entertaining the application, thereby quashing the impugned order.
The High Court set aside the trial court's order and dismissed the applications filed by the plaintiff's side for production of documents based on the counsel's affidavit. However, the Court granted liberty to the plaintiff to file an appropriate application supported by a personal affidavit. The Court made it clear that upon such filing, the trial court could consider the application in accordance with law, maintaining the procedural safeguards for evidence production.
This ruling reinforces the principle that affidavits must be truthful and within the personal knowledge of the deponent, preserving the integrity of the judicial process and upholding the limits of advocates' authority as prescribed by the Advocates Act. It also serves as a procedural reminder in civil suits that document production applications must be supported by the plaintiff's own sworn statements to establish the relevance and admissibility of the evidence sought to be introduced.
Bottom Line:
A lawyer cannot swear an affidavit on behalf of a plaintiff seeking permission to produce additional documents in a suit for partition. Such an affidavit is beyond the authority conferred under the provisions of the Advocates Act.
Statutory provision(s): Advocates Act, Civil Procedure Code, 1908.
Balan v. Parameswaran, (Kerala) : Law Finder Doc Id # 2980686
