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TMI Blog2004 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... on stated that the plaintiff firm was a proprietorship firm and that Shri A.K. Pandey was the sole proprietor of the plaintiff firm. It was, however, stated by him that the plaintiff firm was a registered firm but he could not state as to when the said firm was registered. It is apparent that Shri A.K. Pandey had not instituted the suit. He had only come as a witness. Even in the amended plaint the suit was shown to have been instituted in the name of the firm. A sole proprietorship firm is not a legal entity which can sue or be sued in its own name. Such suit relating to or against the affairs or claims of a proprietorship concern has to be brought or made against the person who is the sole proprietor of the firm. The plaintiff was described to be a proprietorship firm and represented through Shri Amitabh Sharma. Shri Amitabh Sharma had neither signed the plaint nor he signed the power which was filed in the present case. Thus, we agree with the findings and the conclusions recorded by the trial court that the suit was not instituted by a duly authorised person. Accordingly, we find no infirmity in the judgment and order passed by the learned trial court dismissing the suit on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2 and also filed his examination-in-chief through an affidavit whereas the respondents-defendants examined Mr.Sanjeev Kapil as DW-1. 6. In the verification of the affidavit filed by way of evidence filed by Shri Ajay Gogia as PW-1, it was stated thus:- Verification: Verified on this 30th day of July 2002, that the contents of the above affidavit is (are) true and correct to the best of my knowledge and nothing material has been concealed there from. Similar verification was also done in the affidavit filed by way of evidence by Shri A.K. Pandey as follows:- Verification: Verified on this 30th day of July 2002 that the contents of the above affidavit is true and correct to the best of my knowledge and nothing material has been concealed there from. 3. The learned Additional District Judge thereafter heard the arguments in the said suit and by judgment and order passed on January 31, 2003 he dismissed the said suit filed by the plaintiff in the light of the evidence recorded by him as against Issues No. 1, 4 and 5. Issues No. 1 and 5 were taken up first. While discussing the said issues, the learned trial court referred to the aforesaid verifications appended to the affidavits by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir verifications in the affidavits had stated that the contents of the affidavits were true and correct to the best of their knowledge and, therefore, the said verifications in both the affidavits satisfied the requirements of Rule 3 of Order XIX of the Code of Civil Procedure. 7. Order XIX of the Code of Civil Procedure permits a court to receive evidence by way of affidavit for proving particular fact or facts. Affidavits are not included in the definition of 'evidence' in section 3 of the Evidence Act and can be used as evidence only if, for sufficient reasons, a court passes an order to that effect under Order XIX Rule 1 or 2 of the Code of Civil Procedure. As to how an affidavit is to be filed is also set out in Rule 3 of the said Order XIX. It is provided therein that the 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 his belief may be admitted provided that the grounds thereof are stated. 8. In the case entitled A.K.K. Nambiar v. Union of India, , it was held by the Supreme Court that in the absence of proper verification, affidavits could not be admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all the statements made in the said affidavits are true and correct to the best of their knowledge. Hence, according to the deponents, the entire contents of the affidavits were based on their personal knowledge. Although the said verifications were not sworn as true to the personal knowledge of the deponents, yet in our considered opinion the said verifications substantially comply with the requirement of Rule 3 of Order XIX of the Code of Civil Procedure. These affidavits and the deposition therein would have to stand to the test of cross-examination. Examination of the affidavits and evidence on behalf of the appellant in this background shows that PW-2 Shri A.K. Pandey has stated that the affidavit was prepared on the basis of the record being maintained. There is no such deposition in the affidavit or verification, nor any such record produced. In the face of such statements, hardly any evidentiary value can be attached to the affidavit by way of evidence on behalf of the appellant. 11. Be that as it may, we may also now look to the second contention which was advanced before us and was hotly debated. It was submitted that the suit was instituted in the name of the propriet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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