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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 ..... el Nagar, Delhi-8" [Through its authorised representative] Mr.Amitabh Sharma The original plaint filed by the plaintiff was amended subsequently and in the amended plaint also the appellant-plaintiff described itself as above. In paragraph 1 of the plaint the plaintiff stated that the plaintiff is a proprietorship firm having its office at the aforementioned address. The said suit was instituted by the appellant-plaintiff seeking for a decree for recovery of Rs. 4,34,600/- along with pendente lite and future interest from the date of institution of the suit till realisation. 3. In the written statement filed by the defendants, certain preliminary objections were raised. One of the said objections was that the plaint had not been signed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int had been filed by the proprietor, Shri A.K. Pandey, on behalf of the proprietorship firm. As there was no statement as to who was the proprietor of the firm in the plaint nor it was mentioned as to who had signed the plaint, it was held by the trial court that a proprietorship firm is not a legal entity and, therefore, the suit could not be brought in the firm's name. The suit was accordingly dismissed. Being aggrieved by the said judgment, the present appeal is filed on which we have heard the learned counsel appearing for the parties and gone through the record. 6. It was submitted by the learned counsel appearing for the appellant that the verifications/affidavits filed by way of evidence were in the nature of evidence and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaswant Singh, , it was held that where an affidavit seeking to leave to defend application is not properly verified it cannot be allowed to be amended but the deponent may be given an opportunity to file another affidavit. In the case of Musebhai Jivanbhai Jivani v. Special Land Acquisition Officer, (1999-2) 19 Gujarat Law Journal 108, the Division Bench of the Gujarat High Court has held that in case of an affidavit what is required to be declared is the source of knowledge whether it is personal knowledge or knowledge on information based on record or on the basis of the legal advice, etc. But to say that the deposition is true to the best of own knowledge is no affidavit and is not in accordance with the provisions of Order XIX, Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said two deponents in the said verifications of the affidavits that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be that of Shri A.K. Pandey, who was examined in the suit as PW-2, as the main witness. He stated in his cross-examination that he was the proprietor of the plaintiff firm. He also stated in his cross-examination that the plaint was signed, filed and verified by him. PW-1 also in his cross-examination 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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