Knowledge and Belief: What the Verification Clause Decides

The verification is the paragraph that gets typed last, usually from the previous file. It sits below the pleading and above the signature, and says that paragraphs 1 to 24 are true to the knowledge of the deponent and paragraphs 25 to 31 are true to his information received and believed to be true — with the two ranges assigned by whoever was doing the typing, on no principle in particular. It is treated as the closing formality of a document whose real work is already over.

Order VI Rule 15 does not describe a formality. Sub-rule (2) says that the person verifying "shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true." That is not a request for a sentence. It is a request for a classification of every paragraph in the pleading, made by a named individual, on the basis of how that individual came to know the fact.

The Code asks for the classification because it does not treat the two classes alike anywhere else.

Two classes, two evidentiary fates

Order XIX Rule 3(1) is the provision that gives the division its consequence. Affidavits, it says, "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."

Read alongside Rule 15(2), the position is straightforward. A fact within the deponent's own knowledge can be deposed to anywhere. A fact known only on information cannot be deposed to at all, except on an interlocutory application, and even there only if the affidavit states the grounds of the belief. The verification clause is where the pleading declares, in advance and on its own record, which of its paragraphs fall on which side of that line.

That is why the omnibus verification is not a harmless shortcut. It resolves the classification in one of two directions, and both are costly.

If it verifies too much as knowledge — the common habit, because it reads stronger — it puts the deponent's signature behind facts he learnt from a file, a relative, or his own counsel. The document then asserts personal knowledge of matters the deponent cannot be questioned on without the assertion coming apart, and the Code keeps that questioning available. Order XIX Rule 2 provides that upon any application evidence may be given by affidavit, but that the Court may, at the instance of either party, order the attendance of the deponent for cross-examination. Rule 1 works from the other direction: where it appears that either party bona fide desires the production of a witness for cross-examination, and that the witness can be produced, an order is not to be made authorising that witness's evidence to be given by affidavit at all. An overclaimed verification is therefore not a theoretical exposure. It sits in the record from the date of filing.

If it verifies too much as information and belief — the defensive habit — the pleading has classed its own strongest facts as material the deponent cannot prove. Those paragraphs become usable only on interlocutory applications, and only with grounds stated. The party has narrowed his own case in the paragraph he thought was boilerplate.

Where the cost is actually paid

The stage at which this is felt is the interim application, because that is where affidavits are not supporting material but very nearly the whole record. Evidence is not ordinarily recorded before an injunction is granted or refused. What the Court has is the application, the affidavit and the documents, and the finding of a prima facie case is made on that.

Order XIX Rule 3 permits belief to do work at that stage, but attaches a condition that is routinely ignored: the grounds must be stated. "Believed to be true" is not a ground. A ground is the source — the document seen, the person who said it, the register inspected, the date on which the information reached the deponent. An affidavit asserting belief without disclosing where the belief came from has not complied with the proviso, and the Court is entitled to leave the assertion out of account.

The asymmetry this produces runs against the drafting instinct and is worth stating plainly. A carefully drafted affidavit on information is often stronger than a loosely drafted affidavit on knowledge. The first tells the Court where to look; the second only tells it what to believe. A deponent who says he was informed by the tenant in occupation, on a stated date, that construction had reached the plinth has given the Court something it can test. A deponent who swears to the same fact as within his own knowledge, having never visited the site, has given the Court something that will not survive the first question put to him about it.

The affidavit added in 2002

Two changes made by Act 46 of 1999, both brought into force on 1 July 2002, sit beside the verification and are frequently confused with it.

Order VI Rule 15(4) requires that the person verifying the pleading "shall also furnish an affidavit in support of his pleadings". Section 26(2) provides that in every plaint, facts shall be proved by affidavit. Together they mean that a pleading no longer stands on its verification alone; it arrives accompanied by a sworn document. Because Rule 15(4) speaks of pleadings and not of plaints, the requirement attaches to the written statement as much as to the plaint.

What these provisions do not do is convert the pleading into evidence. A plaint supported by an affidavit remains a plaint — a statement of the case to be proved, not proof of it. Issues are still framed on it, and what it puts in issue is still established at trial in the ordinary way. What changed in 2002 is the position of the deponent rather than the status of the document: the facts pleaded are now sworn to at the threshold, by a named person, before any question of proof arises.

The practical consequence is that the verification and the supporting affidavit have to agree with each other. They are prepared at the same time, by the same person, about the same paragraphs. An affidavit that swears to the whole plaint while the verification divides it at paragraph 24 is an inconsistency on the face of the record — a cheap point for the other side, and an avoidable one.

The costs rule that is never invoked

Order XIX Rule 3(2) provides that the costs of every affidavit "which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same."

It is close to a dead letter, and it is worth reading anyway for what it says about what an affidavit is for. The three things the sub-rule penalises — hearsay, argument, and reproduced documents — are precisely the three things that pad a modern affidavit. Argument belongs in the submissions. Documents belong in the annexures, referred to rather than transcribed. Hearsay belongs nowhere unless it is identified as information and its source given, at which point it has stopped being hearsay in the sense the sub-rule means.

Read as a drafting instruction rather than as a costs provision, it describes an affidavit confined to facts, attributed to a source, and considerably shorter than the one usually filed.

What the commercial courts did about it

When the legislature concluded that the open-form verification was not working, it did not amend Rule 15. It prescribed a form.

Order VI Rule 15A, inserted by the Commercial Courts Act, 2015, provides that notwithstanding anything contained in Rule 15, every pleading in a commercial dispute shall be verified by an affidavit in the manner and form prescribed in the Appendix to that Schedule — the Statement of Truth. The same Schedule inserted a proviso into Section 26(2) requiring the affidavit under that sub-section to be in the same prescribed form, so that a single instrument now answers both requirements.

Two features of Rule 15A have no equivalent in Rule 15. Sub-rule (4) provides that where a pleading is not verified in the prescribed manner, the party "shall not be permitted to rely on such pleading as evidence or any of the matters set out therein". Sub-rule (5) permits the Court to strike out a pleading not verified by a Statement of Truth. In that regime the verification is not a closing formality at all; it is a condition of the pleading being usable.

The prescribed form is more interesting than the sanction. Its third paragraph asks the deponent to identify three sets of paragraphs, not two: those true to his knowledge, those based on information received which he believes to be correct, and those "based on legal advice". Rule 15 recognises only the first two. The third category is the one that quietly absorbs the difference in ordinary practice — the paragraphs that are neither observed nor reported but constructed, the characterisations and legal conclusions that a party cannot have knowledge of and has not been informed of. The commercial form makes the drafter name them and count them.

By Section 16 of the Act, these amendments operate in suits in respect of a commercial dispute of a Specified Value; Rule 15A does not govern an ordinary civil suit. The standard it sets, however, is available to anyone. A verification drafted to the discipline of the Statement of Truth in a suit where Rule 15 alone applies costs nothing and is better than what Rule 15 will accept.

A working method

The verification is drafted last but decided while the pleading is being written. Four steps, in order, produce a clause that is accurate rather than habitual.

Identify the deponent before drafting, not after. Rule 15(1) allows verification by a party, by one of several parties, or by another person proved to the satisfaction of the Court to be acquainted with the facts of the case. Which of these it is determines what can be said on knowledge, because knowledge attaches to a person and not to a party.

Mark each paragraph as it is drafted. A paragraph pleaded from the client's own account of what he did or saw is knowledge. A paragraph pleaded from a document, a search, a report, or a third party's account is information — and the source goes into the working note at that moment, while it is still known. A paragraph that is a characterisation rather than a fact is neither, and is better recognised as such before it is sworn to.

Write the ranges from those marks and accept the ranges they produce. If the knowledge range comes out short, the pleading is reporting something true about the case, and the answer is a better deponent or a properly grounded belief, not a wider claim.

Carry the sources forward into every affidavit filed on an interim application in the matter. The grounds required by the proviso to Rule 3(1) were collected at the second step; at that stage they only have to be written down.

Conclusion

Nothing in Order VI Rule 15 or Order XIX Rule 3 is difficult, and neither is obscure. What makes the verification the weakest paragraph in an otherwise careful pleading is that it is the only paragraph in the document that says something about the deponent rather than about the case, and it is therefore the only paragraph the drafter is not thinking about while drafting.

The question the Code asks there is a narrow one: of these facts, which does this person actually know, and where did the rest come from. A pleading that answers it accurately is easier to hold at every stage that follows. A pleading that answers it by habit has left the answer to be supplied later — in cross-examination, by the other side.

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Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.