Sri Lanka Law Reports
12004) 2 Sri L.R
where any party to the action is absent from Sri Lanka, hisattorney duly authorized to bring, conduct or defend theaction, as the case may be, and
. (d) Where any party to the action or where there is more thanone party to the action such of the parties as are in SriLanka, or when such attorney of the parties as is justabove mentioned, is or are unable, for want of personal 60knowledge or bodily or mental infirmity, to make therequired affidavit, any recognized agent of such party…
may make an affidavit in respect of these matters, instead of theparty to the action.
It is to be observed that in the affidavit filed by Shahul Hameed,there is no averment to state that the defendant-petitioner is out ofthe island nor is there an averment that the defendant-petitioner isunable or incapable to make the required affidavit.
Furthermore, there is no averment in the affidavit that the factsstated therein are within the personal knowledge of the declarant 70and that he is able of his own knowledge and observation to testi-fy to. The affidavit should clearly state, what the facts are, within thedeclarant’s personal knowledge. It is also necessary to disclose thenature and source of knowledge with sufficient particularity. Whenthere is no averment in the affidavit that the declarant deposessuch facts from his personal knowledge, it contravenes the provi-sions of the proviso to section 183A of the Civil Procedure Code.
The proviso to section 183A is similar to the first part of section181 of the Code which deals with as to what statements may anaffidavit contain. Section 181 states as follows:so
“Affidavits shall be confined to the statement of such facts asthe declarant is able of his own knowledge and observation totestify to”
In the case of Abeywardena v Abeywardena
S.N. Silva, J. (as he then was) made the following observations:
“The fact that T. Nadeson holds a power, of attorney and is arecognized agent pertains to his capacity to file an affidavit onbehalf of the petitioner-respondent. It does not lend any extra
Umma Anina v Jawahar (Wimalachandra, J.)
credence to the affidavit. His affidavit must comply with therequirements of the Civil Procedure Code. Even if the provi-sions of sections 183 (A) of the Civil Procedure Code broughtby the Civil Procedure Code (Amendment) Act, No. 79 of 1988(not yet in operation at the time of this case) are applied, therelevant amendment permits an attorney to file an affidavitinstead of the party to the action where such party is absentfrom Sri Lanka. The proviso to this section states that in suchsituation the person making the affidavit must be one havingpersonal knowledge of the facts of the cause of action andmust in his affidavit swear or affirm that he deposes fromhis own personal knowledge” (emphasis added)
In the instant case, there is no averment in the affidavit filed byShahul Hameed to state that he had personal knowledge of thefacts stated therein and also there is no statement that he deposedsuch facts from his own personal knowledge.
In the circumstances, I am of the view that the affidavit tenderedby the said Shahul Hameed is not in conformity with the proviso tosection 183(A) of the Civil Procedure Code, and hence there is novalid application before Court.
Besides this infirmity in the said affidavit, when compared withthe petition reveals that the affidavit is nothing more than a repeti-tion of the averments of the petition.
It is apt to refer to the following observation made by S.N. Silva,J. (as then he was) in Abeywardena v Abeywardena {supra) at281.
“Learned District Judge has observed that the affidavit con-firms the averments in the petition. Indeed, on a comparison itis revealed that the affidavit is a verbatim repetition of theaverments of the petition. However, the correct test is not to•consider whether one confirms the other upon a comparisonof this nature. Repetition of the averments of a petition in theaffidavit is an evil that we often note in affidavits that are filed.Learned Judge has regrettably seen a virtue in this evil. Thecorrect test is to ascertain whether the affidavit contains directevidence, that is, statements of such facts as the declarant isable to his knowledae and observation to testifv to and
Sri Lanka Law Reports
[2004] 2 Sri L.R
whether this evidence together with the documentary evi-dence furnishes prima facie proof of the matters of fact set outor alleged in the petition.”
It is also a fundamental rule of procedure that a petition cannotbe converted into an affidavit by the addition of a verifying clause, 130on affirmation or oath to the effect that the statements in the peti-tion are true (section 182 of the Civil Procedure Code).
n Kanagasabai v Kirupamoorth/2) the Supreme Court held thatwhen affidavits are filed in civil proceedings, it is the duty of Judges,Justices of the Peace and Proctors to see that the rules governingaffidavits in sections 181, 437 etc. of the Code are complied with.
In these circumstances, I am of the view that the affidavit ofShahul Hameed has serious defects which contravene the provi-sions of section 183(A). Accordingly, I hold that there is ho validaffidavit before Court. Hence there is no valid application for’revi- 140sion in the absence of a valid affidavit.
The second preliminary objection raised by the plaintiff-respon-dent is that the defendant-petitioner is not entitled to make the pre-sent application in revision through his power of attorney, ShahulHameed, as the defendant-petitioner is residing within the jurisdic-tion of the District Court of Colombo. The affidavit which is in ques-tion is from the said Shahul Hameed, who is the power of attorneyholder of the defendant-petitioner.
By looking at the caption of the petition and the affidavit filed inthe application in revision, both the defendant-petitioner, namely, tsbAliya Buhari Umma Anina and the power of attorney holder, ShahulHameed, reside in the same house at No. 20/7, KetawalamullaLane, Colombo 9, within the local limits of the jurisdiction of thisCourt.
It was held in the case of William Silva v SirisenaP) that a per-son holding a power of attorney as the agent of a party is debarredby section 25(b) of the Civil Procedure Code from, appointing aproctor on behalf of his principal, if the principal is residing withinthe jurisdiction of the Court at the time the action is instituted there.
Dharmasiri and others v Janatha Fertiliser Enterprise Ltd and
others (Imam J)
Thus it is clear if the “principal” and the “power of attorney hold- 160er” reside within the jurisdiction of Court, the power of attorneyholder is not entitled to act on behalf of the “principal” as his rec-ognized agent.
In any even the learned counsel for the defendant-petitioner hasconceded in his written submissions filed of record, that the “powerof attorney” given to the said Shahul Hameed by the defendant-petitioner is not valid in terms of section 25(b) of the Civil ProcedureCode as the defendant-petitioner, admittedly, resides within thejurisdiction of this Court.
For these reasons, the two preliminary objections raised by the noplaintiff-respondent are upheld and the application in revision isaccordingly dismissed with costs.
AMARATUNGA, J. – I agree.
Application dismissed