Court Procedure and Legal Drafting
Affidavit, Counter Affidavit and Rejoinder Affidavit: Meaning and Use in Court
What is an Affidavit?
An affidavit is a written statement of facts made by a person, called the deponent, and sworn or solemnly affirmed before a person legally authorised to administer an oath or affirmation. Affidavits are commonly used to support petitions, applications, replies, objections and other court filings and, where permitted by law, may also be used as evidence.
The original page correctly described an affidavit as a sworn written statement used in support of court applications and proceedings. In writ proceedings in particular, factual disputes are frequently placed before the Court through affidavits, counter affidavits and rejoinders.
The Oaths Act, 1969 and Affidavits
The Oaths Act, 1969 governs the administration of oaths and affirmations in judicial proceedings. Section 3 identifies authorities empowered to administer oaths or affirmations in the circumstances covered by the Act, while Section 6 and the Schedule prescribe forms of oath or affirmation.
The Schedule contains a specific form for affidavits under which the deponent swears or solemnly affirms that the document bears the deponent's name and signature or mark and that the contents are true.
Official India Code - Oaths Act, 1969
Notary Public and Attestation of Affidavits
The Notaries Act, 1952 regulates the profession of notaries in India. A notary is a person appointed under that Act. Depending on the document, forum and applicable law, an affidavit may be sworn or affirmed before a notary, oath commissioner or another authority legally empowered to administer the oath or affirmation.
Official India Code - Notaries Act, 1952
Order XIX CPC: Affidavits in Civil Proceedings
Order XIX of the Code of Civil Procedure, 1908 contains general provisions concerning affidavits in civil proceedings.
| Provision | Meaning |
|---|---|
| Order XIX Rule 1 | The Court may order that a particular fact or facts may be proved by affidavit, subject to the safeguards contained in the Rule. |
| Order XIX Rule 2 | The Court may order attendance of the deponent for cross-examination where appropriate. |
| Order XIX Rule 3 | Affidavits are generally to be confined to facts within the deponent's own knowledge, except in interlocutory applications where statements based on belief may be admitted if the grounds of belief are stated. |
Official India Code - Code of Civil Procedure, 1908
What is a Counter Affidavit?
A counter affidavit is an affidavit filed by a respondent in reply to a petition, application or other pleading. It answers the factual assertions and legal grounds raised by the petitioner and may place the respondent's own facts and documents on record.
In writ proceedings, a counter affidavit is a common form of response by the Government, public authorities and private respondents. The respondent may admit, deny or explain the allegations paragraph by paragraph and may raise preliminary objections such as maintainability, delay, jurisdiction, alternative remedy or disputed facts.
Typical contents of a Counter Affidavit
- Cause title and identification of the proceeding.
- Description and authority of the deponent.
- Preliminary objections, where applicable.
- Paragraph-wise response to the petition.
- Additional facts relied upon by the respondent.
- Reference to supporting annexures.
- Prayer or request for dismissal or appropriate orders.
- Verification stating which statements are based on knowledge, records, information or legal advice, as applicable.
What is a Rejoinder Affidavit?
A rejoinder affidavit is a verified response filed by the petitioner after receiving the respondent's counter affidavit. Its main purpose is to answer the counter and deal with new factual assertions, documents or objections raised by the respondent.
The original article correctly identified the rejoinder as the petitioner's reply to the counter affidavit. However, a rejoinder should not ordinarily be used to transform the original case by introducing an entirely new cause of action or a materially different case without permission where permission is required.
Counter Affidavit vs Rejoinder Affidavit
| Document | Usually filed by | Main purpose |
|---|---|---|
| Affidavit | Any party or deponent as required | To place sworn or affirmed facts before a court or authority. |
| Counter Affidavit | Respondent | To answer the petition and place the respondent's factual and legal position on record. |
| Rejoinder Affidavit | Petitioner | To reply to the counter affidavit, especially new assertions or objections raised by the respondent. |
| Additional / Supplementary Affidavit | Either party, where permitted | To place subsequent facts, additional documents or further material on record, often subject to court permission. |
Supreme Court Rules and Affidavit Practice
Affidavit practice in the Supreme Court is governed by the Supreme Court Rules, 2013 as amended, together with Registry directions, filing checklists and orders passed in the particular case.
The Supreme Court's current Rules page continues to publish the Supreme Court Rules, 2013 together with later amendment notifications. The Court also maintains a current list of interlocutory applications, including applications concerning supplementary affidavits, additional facts and grounds, rejoinders and related filing permissions.
Supreme Court of India - Supreme Court Rules
Supreme Court - Interlocutory Applications
Verification: Knowledge, Information and Belief
Verification is an important part of an affidavit. The deponent should identify which statements are true to personal knowledge and, where permitted, which statements are based on records, information or belief. Where a statement is based on information or belief, the applicable rules may require the source or grounds to be disclosed.
This distinction matters because an affidavit is not merely a signed pleading. It is a sworn or affirmed factual statement for which the deponent assumes responsibility.
Can an Affidavit Contain Legal Arguments?
The primary function of an affidavit is to state and verify facts. Legal submissions may appear in petitions, counters and rejoinders as part of the pleading structure, but factual assertions should be clearly separated from legal contentions and should comply with the verification rules applicable to the forum.
Can New Facts Be Added Through a Rejoinder?
A rejoinder may answer new facts first raised in the counter affidavit. If a party seeks to introduce substantial new facts, subsequent events, new grounds or additional documents going beyond a proper reply, the safer procedural course may be to seek permission to file an additional or supplementary affidavit or an appropriate application.
The Supreme Court's current interlocutory-application list expressly recognises applications for permission to place additional facts and grounds, permission to place subsequent facts on record, permission to file a sur-rejoinder affidavit and permission to file supplementary or additional counter affidavits.
What is a Sur-Rejoinder?
A sur-rejoinder is a further response after a rejoinder. It is not ordinarily filed as a matter of course. Where a further reply is genuinely necessary, the party may seek the Court's permission to place it on record.
Affidavits in Writ Petitions
Writ proceedings frequently involve affidavits because constitutional courts often determine public-law disputes on the pleadings, official records and sworn statements filed by the parties. The respondent may file a counter affidavit, and the petitioner may then be permitted or directed to file a rejoinder.
The exact sequence and time limits are not universal. They depend on the applicable High Court or Supreme Court Rules and the directions made in the particular proceeding.
Basic Drafting Checklist for an Affidavit
- Use the correct cause title, case number and court heading.
- Identify the deponent fully and explain the deponent's authority where the affidavit is filed for an organisation or Government department.
- State facts in numbered paragraphs.
- Distinguish personal knowledge from information derived from records or other permitted sources.
- Refer accurately to annexures and documents.
- Avoid unnecessary argument, scandalous allegations or facts unrelated to the issue.
- Include the verification required by the applicable rules.
- Swear or affirm the affidavit before the legally competent authority.
- Comply with filing, attestation, translation and e-filing requirements of the court concerned.
Common Errors to Avoid
- Signing an affidavit without proper oath, affirmation or attestation where required.
- Failing to disclose the source of information for statements not based on personal knowledge.
- Using a rejoinder to raise an entirely new case without procedural permission.
- Annexing documents without identifying or referring to them correctly.
- Making sweeping factual assertions without supporting records.
- Ignoring the filing timeline fixed by the Court.
- Assuming that every court follows identical affidavit formats or attestation requirements.
Official Legal Resources
Supreme Court Rules, 2013 and amendments
Supreme Court Handbook on Practice and Procedure
India Code - Code of Civil Procedure, 1908
India Code - Notaries Act, 1952
This article provides a general explanation of affidavit practice. The correct form, attesting authority, verification, filing sequence and permission requirements depend on the court, statute, rules and orders applicable to the particular proceeding.