The Affidavit in Support of a Plaint Under Section 26(2) CPC: Purpose, Effect, and Whether It Is Evidence at Trial
- Umang
- 6 days ago
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A plaint is the charter of a plaintiff's case. From the moment it is filed, it defines the boundaries within which the plaintiff must prove his claim and outside which he cannot ordinarily adduce evidence.
The Code of Civil Procedure, 1908 has always required a plaint to be signed and verified — but for decades, verification alone was all the law demanded. The Code of Civil Procedure (Amendment) Act, 1999, which came into force with effect from 1 July 2002, added a further and more demanding layer: an affidavit in support of the plaint under Section 26(2), coupled with a companion affidavit under Order VI, Rule 15(4).
Together, these provisions fundamentally altered the relationship between the plaintiff and the facts pleaded in his plaint.
Understanding what this affidavit is, what it does, and — critically — what it does not do, is essential for every civil litigation practitioner. The answer to the last question is settled but frequently misunderstood: the affidavit filed under Section 26(2) is not evidence for the purpose of the trial.
The Pre-2002 Position: No Affidavit Required
Prior to the insertion of sub-section (2) in Section 26, there was no requirement of filing an affidavit with the pleadings. The plaintiff filed a plaint, signed it, and had it verified in accordance with Order VI, Rule 15. That verification — a statement at the foot of the plaint identifying which averments the verifier confirmed of his own knowledge and which on information received and believed to be true — was the only formal accountability mechanism attached to the pleadings.
The object of this verification was to fix responsibility for allegations made in the plaint on the person who verifies, and to ensure that false allegations were not made freely and recklessly (Rajkumar Dhar v. A. Stuart, (1958)). It was, however, a relatively thin safeguard. The verification was not sworn testimony. A plaintiff who made false statements in a verified plaint faced legal risk, but that risk was not as immediate or as direct as the risk faced by one who swears a false affidavit.
The Statutory Text: Section 26(2) and Its Companion Provisions
Section 26(2): The Principal Obligation
Section 26(2) of the Code of Civil Procedure, 1908 provides: "In every plaint, facts shall be proved by affidavit."
Seven words — but they carry a structural consequence. The plaintiff, in addition to filing and verifying the plaint in the manner prescribed by Order VI, Rule 15, must now also accompany the plaint with an affidavit attesting to the facts stated in it.
For suits involving commercial disputes of a Specified Value under the Commercial Courts Act, 2015 (Act 4 of 2016), a proviso has been inserted: such an affidavit shall be in the form and manner as prescribed under Order VI, Rule 15A.
Order VI Rule 15(4): The Verification Affidavit
Order VI, Rule 15(4), also inserted by the 1999 Amendment, provides: "The person verifying the pleading shall also furnish an affidavit in support of his pleadings."
The requirement under Rule 15(4) is not limited to the plaint alone.
It extends to the written statement as well — both the plaintiff and the defendant, when verifying their respective pleadings, must furnish affidavits in support of those pleadings. The principle of additional accountability introduced by the 1999 Amendment is thus symmetrically applied to both sides of the litigation.
Two Affidavits, One Plaint: Understanding the Dual Requirement
The interaction between Section 26(2) and Order VI, Rule 15(4) creates what is, in practical terms, a dual affidavit requirement accompanying the plaint. Section 26(2) requires an affidavit proving the facts; Order VI, Rule 15(4) requires the person who verifies the pleading to furnish a further affidavit in support of that verification.
The two provisions work in tandem: the plaintiff must accompany the plaint with an affidavit under Section 26(2), and the verifying person must separately furnish an affidavit under Rule 15(4).
In most suits, these obligations are discharged by a single composite affidavit that addresses the requirements of both provisions. Courts have accepted this combined approach where the affidavit is in substantial compliance with the prescribed form, as the Supreme Court observed in Prasanna Kumar v. GM Siddeshwar (AIR 2010) in the context of election petitions subject to an analogous dual requirement.
The Legislative Purpose: Why the Affidavit Was Introduced
The legislative object of Section 26(2) is stated with clarity in the source material: the main object of introducing the affidavit requirement was to reduce the possibility of false statements being made in a plaint. The insertion of sub-section (2) was part of a wider legislative initiative — the CPC (Amendment) Act, 1999 — directed at eliminating procedural delays in the disposal of civil matters.
False and exaggerated pleadings were a well-recognised source of prolonged litigation: if a plaintiff could plead wildly, without personal accountability beyond a pro forma verification, the defendant was put to the expense and inconvenience of contesting averments that the plaintiff had no real basis for making.
The affidavit addresses this by raising the stakes for the plaintiff. Swearing a false affidavit exposes the deponent to the penalties for perjury and false evidence under the Indian Penal Code, 1860 — a significantly more serious consequence than signing a false verification.
The affidavit required under Section 26(2) and Order VI, Rule 15(4) has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. This is the provision's essential function: not to introduce a new category of evidence into the trial, but to create a personal oath-backed accountability mechanism at the threshold of the suit.
The Supreme Court, in Salem Advocate Bar Association, Tamil Nadu v. Union of India (AIR 2003 SC 189 : (2003) 1 SCC 49), upheld the constitutional validity of these amendments, holding that they were within the legislative competence and not violative of any provision of the Constitution.
Who Must Sign the Affidavit?
Under Order VI, Rule 15(1), every pleading shall be verified at the foot by the party or by one of the parties pleading, or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. The same flexibility extends to the affidavit under Rule 15(4).
This means the affidavit need not be sworn personally by the plaintiff in all cases. A person proved to the court's satisfaction to be acquainted with the facts can verify and swear the affidavit. Several propositions flow from the case law on verification that apply equally to the accompanying affidavit.
Agents, Officers, and Power of Attorney Holders
An agent holding a power of attorney from the manager of a partnership firm can verify the plaint and swear the accompanying affidavit (Delpi Lotteries v. Rajesh Aggarwal, AIR 1998). A principal officer of a bank acquainted with the facts can properly verify the bank's pleading (PNB v. Kusum Saxena, AIR 1998).
Where pleadings have been signed by an officer of a corporation without having a resolution or power of attorney, the corporation can ratify the officer's action — ratification can be express or implied (United Bank of India v. Naresh Kumar, AIR 1997).
Where, however, no resolution or document is produced, it cannot be said that the plaint has been signed and verified by a duly authorised agent (State of Haryana v. Bharat Steel Tubes Ltd, AIR 1996).
The principle is that the person who swears the affidavit must in fact be acquainted with the facts of the case — not merely associated with the party in a formal sense. An affidavit sworn by someone who does not actually know the facts deposed to would not merely be formally defective; it would be factually hollow.
What the Affidavit Must State: The Requirements Under Order XIX
The affidavit in support of the plaint must comply with the general requirements of Order XIX of the Code, which governs affidavits across all proceedings.
Personal Knowledge vs. Information and Belief
Order XIX, Rule 3(1) provides that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of belief may be admitted provided that the grounds thereof are stated.
For the affidavit accompanying the plaint — which is not an interlocutory application — the rule as applicable to evidence in the main suit therefore applies: the deponent should, as far as possible, depose only to facts within his own personal knowledge.
Where any averment is not based on personal knowledge, the source of information must be stated (Barium Chemicals v. Company Law Board, AIR 1967; Virendra v. Jagjiwan, AIR 1974). If an affidavit simply asserts or denies allegations as correct to the best of the deponent's knowledge without disclosing the nature and source of knowledge with sufficient particularity, it does not satisfy the requirements of Order XIX, Rule 3 (Rite Approach Group Ltd. v. Rosoboron Export, AIR 2007).
The grounds of belief must be stated with sufficient particularity to enable the court to judge whether it would be safe to act on the deponent's belief. Evidence in affidavit form, which is for the consideration of the court for decision on merit, should be confined to facts known to the deponent either of his own personal knowledge or based on information which the deponent has reason to believe.
In the case of information received by the deponent, the source as well as the reason to believe must be disclosed — otherwise it cannot have evidentiary value (FDC Ltd. v. Federation of Medical Representatives of India, AIR 2003).
A Defective Affidavit Is Not a Valid Affidavit
An affidavit that makes no statement as to which paragraphs are true to the deponent's personal knowledge and which are true on the basis of information and belief is not a valid affidavit in the eye of the law (Competent Authority v. Dhamji Vijendra Mehta, AIR 1997).
An affidavit without verification is not admissible in evidence, since it is from the verification that the court can determine which facts are proved on affidavit evidence (AKK Nambiar v. UOI, AIR 1970). The making of the endorsement on the affidavit, the recording of particulars, and obtaining the signature in the register are integral parts of the act of attestation — unless these are done, the act of administering of oath or affirmation is incomplete and the affidavit cannot be said to be duly attested (VR Kamath v. Divisional Controller, KSRTC, AIR 1997).
Language matters too. Where the text of the affidavit is in English and there is no evidence that its contents were explained to the executant, the affidavit cannot be relied upon (Rashid v. Calcutta Municipal Corporation, AIR 1990).
The Central Question: Is the Affidavit Evidence at Trial?
The Rule Stated Clearly
The most important and — for litigation practitioners — the most practically significant proposition about the Section 26(2) affidavit is this: such an affidavit is not evidence for the purpose of the trial.
This was made explicit in the commentary to the provision and affirmed in the Supreme Court's observations in Salem Advocate Bar Association (supra). The affidavit accompanying the plaint serves as a verified assertion of the facts at the threshold of the suit; it is not proof of those facts at the trial.
The Verification of a Plaint Is Not Evidence Either
This position is consistent with the long-standing rule on verification of pleadings. The verification of a plaint is not evidence on which a suit can be decreed, even if the defendant does not appear (Ross & Co. v. Scriven, (1916)).
Pleadings are statements of facts in issue; they are not themselves evidence of those facts. The role of pleadings is to define the dispute; the role of evidence is to resolve it. The affidavit under Section 26(2) belongs to the pleading stage, not the evidence stage.
A useful contrast may be drawn with affidavits filed in support of interlocutory applications — for example, affidavits in support of applications for temporary injunction under Order XXXIX, Rule 1, or for attachment before judgment under Order XXXVIII.
Those affidavits are expressly contemplated as the evidentiary material on which the court acts to decide the interlocutory question. The Allahabad High Court has held that the ingredients for grant of temporary injunction are to be proved by affidavit as envisaged under Order XXXIX, Rule 1, and the court's power to act on such an affidavit is unfettered (Satya Prakash v. First Additional District Judge, Etah, AIR 2002). No equivalent provision makes the Section 26(2) affidavit evidence for the decision on the merits of the suit.
Why This Rule Exists: The Policy Behind It
The exclusion of the Section 26(2) affidavit from trial evidence is not a technical gloss. It reflects a principled policy choice. If the plaint affidavit were treated as evidence, the plaintiff could, in effect, prove his case at the pleading stage — before the defendant has had any opportunity to cross-examine, to call rebuttal witnesses, or to challenge the basis of the plaintiff's assertions.
This would deprive the defendant of his fundamental right to contest the plaintiff's case through the adversarial process. The court cannot decree a suit on the basis of a verified plaint alone, even when the defendant does not appear; it requires the plaintiff to actually prove his case through admissible evidence at trial. Treating the plaint affidavit as trial evidence would invert that structure entirely.
Consequences of Non-Compliance: Directory, Not Mandatory
Non-Compliance Does Not Render the Plaint Nonest
The amendments effected to Section 26, Order IV, and Order VI, Rule 15 — being procedural in nature — are directory and not mandatory. Non-compliance will not automatically render the plaint nonest, as the Division Bench of the Calcutta High Court held in Vidyawati Gupta v. Bhakti Hari Nayak (AIR 2006 SC 1194 : (2006) 2 SCC 777).
This position is consistent with the Supreme Court's broader approach to procedural defects: procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or cause injustice. Procedure, which is a handmaiden to justice, should never be made a tool to deny justice.
A plaint which is not properly signed and verified is a mistake which can be rectified subsequently. An omission to verify a pleading is a mere irregularity within the meaning of Section 99 of the Code, which can be cured at any stage (Shib Deo v. Ram Prasad, (1924); Kailash Singh v. Hira Lal Dey, AIR 1994).
The Supreme Court has observed that where the verification of a plaint is defective, the plaint should not normally be rejected — an order should be made for its amendment (Bhikaji Keshao Joshi v. Brijlal Nandlal, [1955]).
Courts Grant Opportunity to Rectify Defects
The Delhi High Court has held that in case of defects in verification and affidavits, an opportunity can be given to the party to rectify the defects (Suman Jain v. Jaimala Jain, AIR 2008).
In the context of election petitions under the Himachal Pradesh Panchayati Raj Act, the failure to furnish a separate affidavit in support of pleadings as required by Order VI, Rule 15(4) was held to be a curable defect, and the petition was not liable to be dismissed on that ground (Devinder Singh v. Deputy Commissioner, Shimla, AIR 2010).
The consistent thread through the case law is that the courts treat the absence of the supporting affidavit — or a defective affidavit — as a matter to be cured, not a ground for summary dismissal of the plaintiff's claim.
Amendment of the Plaint: A Fresh Affidavit Is Mandatory
The directory character of the affidavit requirement in the context of the original filing is subject to one important qualification: where the plaint is subsequently amended, a fresh affidavit shall have to be filed in consonance with the amendment. This was expressly clarified by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (AIR 2003 SC 189).
The affidavit is, after all, a sworn statement of the truth of the facts pleaded. When the pleaded facts change by reason of an amendment, the existing affidavit no longer covers those changed averments, and a fresh affidavit is required to extend the plaintiff's oath-backed accountability to the new facts introduced.
Order VI, Rule 15A(3), in the commercial disputes context, is explicit on this point: where a pleading is amended, the amendments must be verified in the form and manner required by Rule 15A(1), unless the court otherwise orders.
The Commercial Courts Overlay: Order VI Rule 15A and the Statement of Truth
The Commercial Courts Act, 2015 introduced a materially different and stricter regime for commercial disputes of a Specified Value. Order VI, Rule 15A — inserted by Act 4 of 2016 with retrospective effect from 23 October 2015 — provides that every pleading in a commercial dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to the First Schedule, which contains the form of a Statement of Truth.
Sub-rule (4): Pleading Not Verified Cannot Be Relied Upon as Evidence
Rule 15A(4) provides: "Where a pleading is not verified in the manner provided under sub-rule (1), the party shall not be permitted to rely on such pleading as evidence or any of the matters set out therein."
This is a consequence of a different order of magnitude from the position under ordinary civil suits. In a commercial dispute, a pleading that is not accompanied by a verified Statement of Truth in the prescribed form cannot be relied upon — not as evidence, and not even for the matters stated in it.
The party is, in effect, stripped of the ability to draw upon his own pleading if he has not verified it in the required manner. This creates a meaningful procedural consequence for non-compliance — one that goes considerably beyond mere curability.
Sub-rule (5): Power to Strike Out the Pleading
Rule 15A(5) goes further: "The Court may strike out a pleading which is not verified by a Statement of Truth, namely, the affidavit set out in the Appendix to this Schedule."
The court has the power — though it is a discretionary one — to strike out an unverified pleading entirely. In the commercial courts context, the affidavit requirement has graduated from a directory procedural obligation to a prerequisite for the pleading's legal efficacy.
The Commercial Courts Regime Is Materially Stricter
The contrast between the ordinary civil suit regime and the commercial courts regime is sharp and deliberate. Under the ordinary CPC regime, the affidavit under Section 26(2) is directory, the plaint is not struck out for want of it, and the defect is curable.
Under the commercial courts regime, the pleading cannot be relied upon as evidence if unverified, and may be struck out. The legislature has consciously calibrated a higher standard of accountability for high-value commercial disputes, where the stakes of false or speculative pleadings are greater and the need for early certainty about the disputed facts is correspondingly more pressing.
The Affidavit in the Context of Order XIX: General Principles
It is worth situating the Section 26(2) affidavit within the broader framework of Order XIX, which governs affidavits generally under the Code.
Order XIX, Rule 1 empowers the court to order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. The proviso, however, is important: where a party bona fide desires the production of a witness for cross-examination, and the witness can be produced, the court shall not authorise evidence by affidavit alone.
Order XIX, Rule 2 separately provides that upon any application, evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance of the deponent for cross-examination.
These provisions govern affidavits as evidence. The Section 26(2) affidavit does not operate under Order XIX, Rule 1 or Rule 2 — it operates at the pleading stage, before any order for proof by affidavit has been made. Its legal character is that of a sworn verification of the pleading, not a sworn statement tendered as evidence. The distinction, once again, is between the pleading stage and the evidence stage of the suit.
Practical Guidance for Advocates
The following practical points flow from the foregoing analysis.
First, a plaint must be accompanied by an affidavit under Section 26(2) and a verification affidavit under Order VI, Rule 15(4). In practice, many courts accept a single composite affidavit satisfying both requirements.
Advocates should ensure that the composite affidavit is in the prescribed form, properly sworn before an officer empowered to administer oaths under Section 139 of the Code, and clearly identifies which averments are made from personal knowledge and which are based on information received and believed to be true, with sources disclosed.
Second, the affidavit is not evidence for the trial. A plaintiff cannot substitute the filing of a plaint affidavit for the adduction of proper evidence at trial. The two operate at different stages and serve different purposes. Relying on the plaint affidavit as proof of the plaintiff's case at the trial stage would be a fundamental error.
Third, for commercial disputes, the Rule 15A Statement of Truth must be in the prescribed form and properly verified. Non-compliance has direct and serious consequences: the pleading cannot be relied upon as evidence and may be struck out. The curable-defect safety net available in ordinary civil suits does not apply with the same force in the commercial courts regime.
Fourth, where a plaint is amended, a fresh affidavit is mandatory. The amendment brings new or changed facts into the pleadings — the original affidavit does not cover them. Filing the amended plaint without a fresh affidavit in consonance with the amendments leaves the new averments without the oath-backed accountability that Section 26(2) demands.
Fifth, a defective affidavit — one that fails to distinguish personal knowledge from information and belief, or omits to disclose sources of information — is not a valid affidavit. Courts should be given the opportunity to rectify the defect; but advocates should not rely on the court's indulgence as a first resort.
Conclusion
Section 26(2) of the Code of Civil Procedure, 1908 represents one of the more thoughtful interventions of the 1999 Amendment — an instrument of accountability that seeks to raise the cost, both legal and personal, of making false statements in civil pleadings.
By requiring the facts in a plaint to be sworn to by affidavit, the legislature has done something that the mere verification under Order VI, Rule 15 had never done: it has placed the plaintiff squarely within the reach of the law on perjury and false evidence in respect of every material averment in his plaint.
The corollary — that this affidavit is not evidence for the purposes of the trial — is equally important and equally principled. The plaintiff's accountability for what he has pleaded is enhanced; but that accountability is exacted through the mechanisms of penal law and sanctions for contempt, not by short-circuiting the adversarial trial process.
The defendant's right to cross-examine, to challenge the basis of the plaintiff's case, and to put the plaintiff to the proof of his averments remains intact. For commercial disputes, the regime has been further tightened under Order VI, Rule 15A — with consequences for non-compliance that go far beyond the ordinary civil suit framework.
Understanding both dimensions of the affidavit requirement — what it demands and what it does not achieve — is essential to the competent conduct of civil litigation in India.
Frequently Asked Questions
Q: What is the difference between the verification under Order VI Rule 15 and the affidavit under Section 26(2)?
The verification under Order VI, Rule 15(1) to (3) is a statement at the foot of the plaint, signed by the party or a person acquainted with the facts, identifying what is verified on personal knowledge and what on information and belief. It is not a sworn statement.
The affidavit under Section 26(2) — and the companion affidavit under Rule 15(4) — is a sworn statement before an officer empowered to administer oaths, attesting to the truth of the facts pleaded. The affidavit places the deponent under a higher and more personal legal obligation: swearing to a false affidavit exposes the deponent to prosecution for perjury, whereas a false verification attracts a lesser sanction.
Q: If the plaintiff files no affidavit with the plaint, will the plaint be rejected?
In ordinary civil suits, non-compliance with Section 26(2) does not automatically render the plaint nonest, as the provision is directory in nature (Vidyawati Gupta v. Bhakti Hari Nayak, AIR 2006 SC 1194). The defect is curable, and the court will ordinarily grant an opportunity to rectify it rather than reject the plaint outright. In commercial disputes, however, the consequences are more serious: a pleading not verified by a Statement of Truth under Order VI, Rule 15A cannot be relied upon as evidence and may be struck out.
Q: Is the Section 26(2) affidavit evidence at trial?
No. The affidavit filed under Section 26(2) and Order VI, Rule 15(4) is expressly not evidence for the purposes of the trial. Its function is to fix personal accountability on the deponent for the truth of the facts stated in the pleadings — not to prove those facts at trial. The plaintiff must prove his case through admissible evidence adduced at the trial stage, in the ordinary course of the adversarial process.
Q: Does the plaintiff need to file a fresh affidavit when the plaint is amended?
Yes. The Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India (AIR 2003 SC 189 : (2003) 1 SCC 49) made it clear that where the plaint is amended, a fresh affidavit in consonance with the amendment shall have to be filed. The original affidavit covers only the facts as originally pleaded; it cannot extend to new or changed averments introduced by the amendment.
Q: Who can swear the affidavit — must it be the plaintiff personally?
No. The affidavit may be sworn by the party, or by one of the parties to the proceedings, or by any other person proved to the satisfaction of the court to be acquainted with the facts of the case. Agents holding a power of attorney, officers of a company or bank acquainted with the facts, and managers of partnership firms have all been held to be competent deponents under the verification and affidavit provisions — provided they are, in fact, acquainted with the relevant facts and not merely formal representatives.
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