ORDER
Dipak Misra, J.
1. This batch of appeals was listed for rectification of default, the same being, the affidavit that has been filed in support of the applicant for condonation of delay preferred under Section 5 of the Limitation Act, 1963 in each case has been sworn to by the Oath Commissioner instead of Notary under the Notaries Act, 1952. Though the aforesaid matters were listed for rectification of the aforesaid singular default which has been pointed out by the Registry, Mr. A.M. Trivedi, learned Senior Counsel, Mr. P.C. Paliwal, Mr. Imtiyaz Hussain, Mr. Ashok Lalwani, Mr. Greeshm Jain, Mr. K.N. Fakaruddin, Mr. Ashish Shroti, Mr. Ashish Trivedi, Mr. N.S. Parmar, Mr. D.K. Sharma and Mr. Vipin Sharma, Advocates addressed this Court that the default pointed out by the Registry is absolutely erroneous as such a default does not emerge if the provisions engrafted in various enactments and rules framed by the High Court of Madhya Pradesh from time to time are scrutinized in proper perspective and further in view of the decisions in the field governing the said facet.
At the very outset it is seemly to state that there is no dispute that the affidavits in these appeals have been sworn to by the Oath Commissioner. Mr. A.M. Trivedi, learned Senior Counsel leading the argument has commended us to the Rule 1 of Chapter 3 of M.P. High Court Rules and Orders.
2. On the bedrock of the aforesaid Rule it is urged that the persons who have the authority under Section 297 of the Code of Criminal Procedure and Section 139 of the Code of Civil Procedure are the persons empowered to administer oath or receive solemn affirmation for the affidavits used in the proceeding before the High Court. Learned Senior Counsel has commended us to the Division Bench decision rendered in the case of Bhagwati Prasad Singhal v. State of Madhya Pradesh and Anr. M.P. No. 4033/1993, decided on 9-5-2005. Quite apart from the above learned Counsel have invited our attention to the decision rendered by Constitution Bench of the Apex Court in Kamal Narain Sarma v. Dwarka Prasad Mishra and Ors. : [1966]1SCR478 , and a decision rendered by the Division Bench of Allahabad High Court in Sajjain Kumar v. C.L. Verma and Anr. : AIR2006All36 . It is canvassed by them that the view expressed by the Division Bench of this Court in Smt. Manju Singh Parmar and Ors. v. Brij Kishore Palod and Anr. MCC No. 1962/2007, decided on 3-9-2007 runs counter to the decision rendered in Bhagwati Prasad Singhal (supra) and, therefore, it does not have the precedential value if the fundamental concept of precedent is taken into consideration and law laid down by the Full Bench in Jabalpur Bus Operators Association and Ors. v. State of M.P. and Anr. 2003 (1) M.P.H.T. 226 : 2003 (1) MPJR 158. Learned Counsel for the parties have further propounded that Section 139 of the CPC and Section 297 of the Cr.PC in unequivocal and categorical terms authorise the Oath Commissioner to administer the oath or receive solemn affirmation in the case of affidavit for any purpose, for the simon pure reason the said provisions by the express and unambiguous language used therein so postulate. A decision rendered in Shashi Bhushan Bajpai v. Madhavrao Scindia AIR 1998 MP 31, has also been pressed into service to pyramid the stand that an affidavit sworn to by the Oath Commissioner for the purpose of proceeding before the High Court cannot be treated to be illegal, unjust and unacceptable. The learned Counsel have further, to bolster their stand and reinforce the stance, placed reliance on the decision rendered in the case of Maharishi Mahesh Yogi Shiksha Prasaar Samiti v. State of M.P. and Ors. Writ Petition No. 14211/2007, decided on 26-10-2007.
3. The learned Counsel for the appellants have further canvassed that the Rule 1 of Chapter III of the High Court Rules and Orders has to govern the field and the Commissioner of Oath Rules, 1976 (for short 'the 1976 Rules') cannot override the same and a harmonious construction has to be placed so that they can coexist in congruity and homogeneity so that the Oath Commissioner can be regarded as entitled to administer the oath and get affidavits sworn for the purpose of filing before the High Court. It is their further submission that the procedural law is handmaid of justice and it cannot be conferred the status of mistress to rule.
4. To appreciate the submissions raised at the Bar it is necessary, nay, imperative to refer to Rule f of Chapter III of the High Court Rules and Orders. The said Rule reads as under:
1. The Additional Registrar or Deputy Registrar, a notary public appointed under the Notaries Act, 1952, and other persons mentioned in Section 539 of the Code of Criminal Procedure and Section 139 of the Code of Civil Procedure are persons empowered to administer the oath or receive the solemn affirmation in the case of affidavits to be used in this Court and the Supreme Court.
[Note: Section 539 of the Code of Criminal Procedure Code, 1898 referred in the said rule corresponds to Section 297 of the Criminal C, Procedure.]
5. The said Rule was referred to in Bhagwati Prasad Singhal (supra). The Division Bench in Paragraphs 2.4 has expressed the opinion as under:
It is clear from the above provisions that they relate to and provide for only administration of oath or affirmation in respect of affidavits' to be used in proceedings before the Courts covered by the Civil Procedure Code or Criminal Procedure Code, as also the High Court and the Supreme Court. They do not enable or empower any one, in particular Judges or Judicial Magistrate to administer oath or affirmation in respect of affidavits which are not intended to be used in proceedings before Courts.
6. Submission of Mr. Trivedi, Mr. Ashok Lalwani, Mr. Paliwal and Mr. Greeshm Jain and other Counsel appearing for the parties is that the said Rule is the fundamental and principal genus and any person empowered in Section 297 of the Code of Criminal Procedure and Section 139 of the Code of Civil Procedure can administer the oath or receive the solemn affirmation an affidavit for a judicial proceeding in any Court. To bolster the aforesaid stance they, with immense vehemence, have drawn our attention to the conclusions summed up in Bhagwati Prasad Singhal (supra) in Paragraph 7. Learned Counsel for the parties have drawn inspiration from sub-paragraph (a) of Paragraph 7. However, for the sake of completeness we intend to reproduce the paragraph in entirety:
7. We may resultantly summarize the position as follows:
(a) A Judge or Magistrate or an Oath Commissioner may administer oath or affirmation in respect of any affidavit to be used in any judicial proceedings, that is, any proceeding before any Court to which CPC or Cr.PC is made applicable or any proceeding before any Tribunal which is empowered to receive evidence on oath.
(b) A Notary Public may administer oath or affirmation in regard to all affidavits, that is not only to the affidavits in respect of which oath or affirmation can be administered by a Judge, Magistrate or Oath Commissioner, but also affidavits which are to be used for purposes other than Court/Judicial proceedings.
(c) An Executive Magistrate can administer oath or affirmation in respect of affidavits to be used in any criminal proceedings or any proceedings before the High Court.
(d) In regard to any affidavit which is to be used for purposes other than Judicial/Court proceedings, oath or affirmation can be administered by a Notary Public. It can also be administered by any person if empowered by the State Government under Section 3(2) of the Oaths Act, 1969. At present no person is empowered under Section 3(2) of the Oaths Act.
7. Emphasising on the language used in Paragraph 7 (a) Mr. Trivedi has submitted that the Division Bench has clearly laid down that the Oath Commissioner may administer the oath and receive solemn affirmation in the shape of affidavits to be used in any judicial proceeding, i.e., before any Court to which the Code of Civil Procedure and Code of Criminal Procedure are made applicable. Proponement of Mr. Trivedi is that when the Division Bench has used the word 'in any Court' it would cover any Court of law and indubitably would inckide the High Court.
8. To appreciate the aforesaid submission it is apt and apposite to get the projection of facts in the case of Bhagwati Prasad Singhal (supra). The cavil that emanated in the said case was whether a Judicial Magistrate can administer oath and affirmation in a proceeding which is not judicial in nature. The Court referred to Section 139 of the Code of Civil Procedure, Sections 2 and 297 of the Code of Criminal Procedure, M.P. High Court Rules and Orders, provisions of Section 8 of the Notaries Act, 1952, Section 3 of the Oaths Act, 1969 and eventually summed up the conclusions as we have reproduced hereinabove. Thus, from the aforesaid adumbration of facts it is clear as sunshine that the lis was quite different. The Division Bench was not addressing itself whether the Oath Commissioner can administer oath or receive solemn affirmation in the affidavits to be used for the purpose of proceedings before the High Court. It is well settled in law that a judgment is a precedent for what it decides. In this context we may profitably refer to the decision rendered in the case of Ambica Quarry Works etc. v. Slate of Gujarat and Ors. and Ambalal Manibhai Patel and Ors. v. State of Gujarat and Ors. : [1987]1SCR562 , wherein it has been held as under:
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
9. In Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. : [2002]1SCR621 , it has been held as under:
19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read. In the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graying Dock Co. Ltd. v. Morton (131 at. P. 761), Lord Mac Dermot observed: (All ER p. 14 C-D)
The matter cannot, of course, be settled merely by treating the ipsissima verba of Willies, J. as though they were part of an Act of Parliament and applying the rules on interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
20 In Home Office v. Dorset Yacht Co. Lord Reid said at All ER p. 297 g-h 'Lord Atkin's speech...is not to be treated as if it were a statutory definition. It will require qualification in new circumstances'. Megarry, J. in (1971) 1 WLR 1062, observed:
One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament. And, in Herrington v. British Railways Board, Lord Morris said: (All ER p. 761c)
There is always peril in treating the words of a speech or judgment as through they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
*** *** *** *** *** *** ***Precedent should be followed only so far as its marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.
10. Similar view has been iterated in State of Haryana and Ors. v. AGM Management Service Ltd. : (2006)5SCC520 .
11. In view of the aforesaid enunciation of law we are disposed to think that the term 'any Court' used in the summation in Paragraph 7 (a) has to be restricted to mean the Court to which CPC and Cr.PC is made applicable regard being had to the context in which the decision was rendered. Quite apart from the above it is evident that the Division Bench speaking through the learned Chief Justice (as His Lordship then was) did not lay down the law regarding the exact conceptuality that flows from language employed in the Code of Civil Procedure and Code of Criminal Procedure. Thus, the conclusion, irrefragably, has to be studied in the backdrop of the Code of Civil Procedure and Code of Criminal Procedure. Ergo, we proceed.
12. In this context we may profitably refer to the decision rendered in Rambhuwan Prasad Upadhyaya and Anr. v. State of M.P. and Ors. Writ Petition No. 1945/1998. In the said case the Division Bench of this Court in Paragraphs 10 and 11 has expressed the opinion as under:
10.3 Thus, the rule contained in Section 139 of the CPC are the rules which do not apply to the proceeding under Article 226 of the Constitution. Apart from this, these rules which are known as 'Commissioner of Oath Rules, 1976' framed under Section 139 of the CPC define the Court to mean only Civil Court under superintendence of the High Court. These rules define the 'Commissioner of Oaths' to mean the person other than Civil Courts or Magistrates authorised under Section 139(a), CPC or under Section 297, Cr.PC. Or any other Court generally or specially empowered under Section 139(c) of the CPC to administer oath to the deponent. The 'Appointing Authority' is defined to mean the High Court and the jurisdiction of the Oath Commissioner is given in Rule 5, which says that the Commissioner of Oaths shall have power to verily affidavits to be used in Courts by administering oaths and affirmations. The term of Oath Commissioner is provided in Rule 7 which is for a period not exceeding three years and his certificate may thereafter be renewed every three years by the District Judge with prior approval of Appointing Authority on payment of prescribed fee. It means that a person can remain Oath Commissioner in perpetuity provided a renewal application is made by him to the District Judge within 90 days before the expiry of the term under the existing certificate and the District Judge has been authorised to condone the delay up to 30 days and such an application is to be accompanied by a copy of treasury challan evidencing the deposit of fee prescribed for the certificate of Oath Commissioner. The fees for renewal of the certificate of Oath Commissioner is Rs. 300/- per year. This practice of appointment of Oath Commissioner in the District Court is unhealthy and leads to discrimination and the needy and deserving person is thrown out from the arena, and a monopoly is crated in favour of the few persons who are attached to or arc favourite of the District Judge, and the criteria of the appointment has been completely sacrificed. These rules, in the opinion of the Court, require a thorough review so to satisfy the need of the needy advocates and also require precautions regarding abuse of the authority and elimination of corruption and in respect whereof Allahabad High Court Rules can be taken aid of. A situation may come that a particular Oath Commissioner adopting corrupt practice collect huge amount whereas the other, who do not indulge in corrupt practice may not earn any thing. In this connection, Rule 6 Chapter IV of the Allahabad High Court Rules, 1952 have provided that the fees paid shall be distributed among Oath Commissioners in such manner as the Chief Justice may from time to time direct. Under this rule, the Chief Justice of Allahabad High Court has introduced a coupon system.
These items need to be considered by the Rules Making Committee.
11. The rules framed under Section 297 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.PC) are extracted below:
2. Appointment of Commissioner of Oaths by the High Court.-
The Commissioner of Oaths appointed from time to time by the High Court under Section 122, read with Section 139 of the Code of Civil Procedure, 1908 (Act 5 of the 1908) shall also be deemed to be appointed as the Commissioner of Oaths under Clause (b) of Sub-section (1) of Section 297 of the Code of Criminal Procedure 1973.
3. Appointment of Commissioner of Oaths by the Court of Sessions.--(1) When there is appointed a Commissioner of Oaths for any area by the High Court under Rule 2, of the Court of Session shall not appoint any Commissioner of Oaths for that area.
(2) When there is no Commissioner of Oaths appointed by the I ligh Court as above for any particular area and the Sessions Judge is of opinion that there is need of a Commissioner of Oaths being appointed for that area, the Sessions Judge shall intimated such need to the District Judge concerned who shall deal with the matter as the Commissioner of Oaths Rules, 1976.
These rules are known as 'Commissioner of Oath (Criminal) Rules, 1995' and have adopted the rules by saying that the Commissioner of Oaths appointed from time to time by the High Court under Section 122 read with Section 139 of the CPC shall also be deemed to be appointed as the Commissioner of Oaths under '1 Clause (b) of Sub-section (1) of Section 197 of the Cr.PC.
13. In Paragraph 13, it has been held as under:
The Rules known as 'Commissioner of Oath's Rule, 1976' do not apply to any proceedings in the High Court.
14. It is worthnoting that in the said case a report was called from the Additional Registrar (J) who submitted the report on 2-2-99. After perusing the report the Bench expressed that no person has been appointed or empowered under the Oaths Act, 1969 as Oath Commissioner.
15. Presently to the provisions. Section 139 of the CPC deals with the oath on affidavit by whom to be administered. The said provision read as under:
Section 139. Oath on affidavit by whom to be administered.--In the case of any affidavit under this Code-
(a) any Court or Magistrate, or
(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952);
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf, may administer the oath to the deponent.
(Underlining is ours)
16. Section 297 of the Cr.PC reads as under:
Section 297. Authorities before whom affidavits may be sworn.-
(1) Affidavits to be used before any Court under this Code may be sworn or affirmed before-
(a) any Judge or any judicial or Executive Magistrate, or
(b) any Commissioner of Oaths appointed by a High Court or Court of Session, or
(c) any notary appointed under the Notaries Act, 1952 (53 of 1952).
(2) Affidavits shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable ground to believe to be true, and in the latter case, the deponent shall clearly state the grounds of such belief.
(3) The Court may order any scandalous and irrelevant matter in the affidavit to be struck out or amended.
(Emphasis supplied)
17. Mr. A.M. Trivedi, learned Senior Counsel and other Counsel appearing for the parties have laid immense emphasis on Clause (b) of the aforesaid provision. It is their submission that other persons would mean an Oath Commissioner as the words 'other persons' also find mention in Rule 1 of Chapter III of the M.P. High Court Rules and Orders. If both the provisions are read in proper perspective they would convey, if we are allowed to say so, a singular and solitary meaning that any officer or person whom the High Court may appoint in this behalf has the authority to give oath and receive affidavit on solemn affirmation. This is the language used in the Code of Civil Procedure. As far as the Code of Criminal Procedure is concerned, it postulates that any Commissioner of Oaths appointed by a High Court or Court of Session.
18. In this context, it is obligatory on our part to refer to Section 3 of the Oaths Act, which deals with the power to administer oath. The said provision reads as under:
Section 3. Power to administer oaths.-
(1) The following Courts and persons shall have power to administer, by themselves or, subject to the provisions of Sub-section (2) of Section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:
(a) all Courts and persons having by law or consent of parties authority to receive evidence;
(b) all commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.
(2) Without prejudice to the powers conferred by Sub-section (1) or by or under any other law for the time being in force, any Court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf-
(a) by the High Court, in respect of affidavits for the purpose of judicial proceedings; or
(b) by the State Government in respect of other affidavits.
(Emphasis supplied)
19. On a perusal of the said provision it is clear that an Oath Commissioner has to be authorised and empowered by the High Court for the purpose of affidavits for any judicial proceeding. Thus, if the language of Sections 139 of the Code of Civil Procedure, Section 297 of the Code of Criminal Procedure and language of Oaths Act are appropriately understood it would mean that an officer or other persons has to be conferred the authority by the High Court. Rule 1 of Chapter III of the M.P. High Court Rules and Orders stipulates the names of two categories of the officers, Le., Additional Registrar or Deputy Registrar. The Rule also includes the Notary appointed under the Notaries Act, 1952. It also includes persons mentioned under Section 139 of the CPC and Section 297 of the Cr.PC. As far as officers are concerned there cannot be any shadow of doubt that power has been conferred on them. As far as Notaries are concerned they should be appointed under the 1952 Act. The Notaries Act, 1952 defines Notary under Section 2(d). Section 2(e) defines' word 'prescribed' meaning thereby prescribed by rules made under the said Act. Section 3 confers power on the Central Government as well as on State Government to appoint Notaries. Section 8 deals with the functions of Notaries. Section 15 deals with the power to make rules. On a perusal of the anatomy of the said Act it is clear as day that there is no further provision by which a Notary is required to acquire powers. To clarify: A Notary once appointed, he is a Notary and would carry out the functions under the Act that has been so held in Bhagwad Prasad Singhal (supra). In Rule 1 of Chapter III the term 'Notary' has been used. As far as Oath Commissioner is concerned there is no conferral of power but a referral of power which is ingrained under Section 139 of the Code of Civil Procedure and Section 297 of the Code of Criminal Procedure. Section 139(b) postulates that any officer or other person whom a High Court may appoint in this behalf. Section 297 of the Cr.PC lays down that any Commissioner of Oaths appointed by a High Court or Court of Session. Thus, an Oath Commissioner, ipso facto, does not have the authority. He has to be appointed by the High Court for the said purpose as per the Code of Civil Procedure or by High Court or Court of Session as per the provisions of Code of Criminal Procedure. That is also the basic requirement' under the Oaths Act. Section 3(a) of the said Act envisages to empower the persons. Thus, the matter can be looked into by another angle. An Oath Commissioner is created under the Oaths Act. As per Section 3(1)(a) of the said Act they can administer oath for filing in the judicial proceeding only if they are empowered in this behalf by the High Court. The High Court has not empowered any person to administer oath for filing affidavits for proceeding before the High Court. Hence, cannot usher their authority and administer oath for filing affidavits before High Court. That apart, as has been discussed hereinabove when no one has been appointed, provisions of Section 3(1)(a) has to be given due prominence and its statutory requirement cannot be annihilated or made nugatory. Hence, there has to be an appointment. It is submitted by the learned Counsel for the parties that Oath Commissioners have been appointed by the High Court and hence, Rule 1 of Chapter III of the M.P. High Court Rules and Orders would come into full play. The aforesaid submission, on a first flush, seems quite attractive but the resplendence of the first Hush docs require close scrutiny for appreciation of its real bright contour. High Court of M.P. has framed Commissioner of Oaths Rules, 1976. The dictionary Clause that has been envisaged in Rule 2 (a) defines 'Appointing Authority' means the High Court. Clause (b) of Rule 2 reads as under:
2. Definitions.-
(b) 'Court' means only Civil Court under superintendence of the High Court.
(Emphasis supplied)
Clause (d) defines 'Commissioner of Oaths' and Clause (e) defines 'District Judge'.
20. Emphasis is laid before us on Rule 5, which deals with the jurisdiction of Commissioner of Oaths. The said Rule reads as under:
5. Jurisdiction of Commissioner of Oaths.--The Commissioner of Oaths shall have power to verify affidavits to be used in Courts by administering oaths and affirmations.
21. It is contended that the term 'Courts' has been used in Rule 5 and hence, it would include all Courts including the High Court. The dictionary Clause defines that the 'Court' would mean only Civil Court under the superintendence of the High Court. As far as the term means is concerned it has definitcness and nothing can be ordinarily added to it. The matter would have been different had there been inclusive definition or a different kind of definition. Mr. Trivedi has forcefully drawn our attention to the decision rendered in the case of Sajjan Kumar (supra). Learned Counsel has placed reliance on Paragraphs 3, 4 and 7 of the same. On a perusal of Paragraph 3 it is patent that under Rule 1 of Chapter IV of the Allahabad High Court Rules there is provision for appointment of Oath Commissioner who is appointed by the Chief Justice of that High Court. The Division Bench dealt with the anatomy of the aforesaid rules and thereafter in Paragraph 4 expressed the opinion that there is nothing to show that it was the sole provision and has been made in exclusions of or in derogation of other provisions of law governing the swearing of the affidavits. It was also held that not only the said but contrary to it, the proviso contained in Rule 4 of Chapter IV carves out exception to the general rules where the affidavits verified by the Oath Commissioner's of the other States. It was held that the said provisions show that it is not affidavit verified and sworn before the Oath Commissioner of High Court alone can be presented before High Court rather affidavit sworn before other persons authorised to verify affidavits and administer oath or affirmation also be presented before the High Court. In our considered opinion the Rules in Allahabad High Court are different and that is why the Division Bench had delivered the judgment in that context.
23. As far as Kamal Narain Sarma (supra), is concerned be it noted the said case arose from the State of Madhya Pradesh. In the said case the affidavit of the election petitioner was sworn by a clerk of Court in the District Court, Jabalpur. An objection was raised by the first respondent that the affidavit was not sworn before the proper authority as required under Rule 94-A of the conduct of Election Rules, 1961 and the Election Tribunal accepted the objection and allowed the lime to file proper affidavit. No action was taken against the said order. The Tribunal framed two issues for determination. Issue No. 20 dealt with the facet of affidavit. The Tribunal rejected the said contention and expressed the opinion that as a fresh affidavit has already been filed the Tribunal could proceed for trial. A writ petition was filed before the High Court and the Court quashed the two orders and the Tribunal was directed to deal further with the petition. The High Court considered whether the provisions of Rule 94-A were mandatory or directory but did not address itself whether the first affidavit was proper or not. The Apex Court referred to Section 83 of the Representation of People Act, 1952 and thereafter referred to Rule 92 of the Conduct of Election Rules, 1961. Their Lordships eventually after referring to Section 139 of the Code of Civil Procedure and Section 539 of the Code of Criminal Procedure in Paragraph 8 held as under:
8. The Clerk of Court was appointed a Commissioner of Oaths under Section 139(c) quoted above. It is contended that the powers of such a Commissioner were to administer oaths for purposes of affidavits under the Code of Civil Procedure and this meant Order XIX of the Code. It is pointed out that none of the conditions under which the affidavit is required under that Order applies here. It is argued that Commissioners appointed under one statute cannot swear affidavits prescribed under another statute and Section 539 of the Code of Criminal Procedure is also cited as an instance. This may be so. It may be that an affidavit sworn by a District Clerk of Court may not be good for the purposes of the Code of Criminal Procedure and vice versa but that is because the restriction is to be found in Section 139 of the one Code and Section 539 of the other. Rule 94-A makes no such condition and makes receivable an affidavit sworn before a Commissioner of Oaths without specifying of what kind. In this view of the matter the affidavit sworn before the District Clerk of Court, who undoubtedly is a Commissioner of Oaths, can only be excluded by taking an extreme and technical a view which, in our opinion, is not justified.
23. We have bestowed our thoughtful and anxious consideration and carefully perused the aforesaid decision. In the aforesaid case Their Lordships observed that the clerk of Court was appointed as Commissioner of Oaths under Section 139 and thereafter as has been stated above Their Lordships referred to Rule 94-A expressed that the said Rule does not lays such condition and makes receivable an affidavit sworn before a Commissioner of Oaths without specifying of what kind and in that backdrop further expressed the opinion that the affidavit sworn before the District Clerk of Court who undoubtedly is a Commissioner of Oaths can only be excluded by taking an extreme and technical view. Mr. A.M. Trivedi submitted that exclusion of Oath Commissioner for the present purpose would tantamount to extreme technical view which the Constitution Bench has not appreciated.
24. The question that falls for consideration is whether there is any employed inclusion or whether in the Rule non-inclusion of the Oath Commissioner would be extremely technical in nature. As has been discussed earlier the High Court of M.P. has framed Commissioner of Oaths Rules, 1976. The High Court has already stipulated other persons mentioned in Section 139 of the CPC and Section 297 of the Cr.PC. In Karnal Narain Sarma (supra), Rule 94-A was silent in this regard. Here the High Court has framed a set of Rules and referred to the provision and Acts conferring power on the High Court. In the said Rule there is the definition of 'Court'. The terms 'only' has been used. If Rules are read in entirety the indubitable and inescapable conclusion is that the Oath Commissioner can administer oath or receive solemn affirmation in respect of Civil Courts only.
26. Learned Single Judge in Maharishi Mahesh Yogi Shiksha Prasaar Samiti (supra), has referred to the decision rendered in MCC No. 1962/2007, Rule 1 of Chapter III, Section 139 of the CPC and decision rendered in the case of Bhagwati Prasad Singhal (supra), and expressed the opinion in Paragraphs 6 and 8 as under:
6. Cumulative effect of Rule 1 of Chapter 111 of High Court Rules read with Section 129 of Code of Civil Procedure and provisions of Commissioner of Oath Rules, 1976 is that an affidavit attested by the Oath Commissioner would be valid in the proceedings before the High Court.
*** *** *** *** *** ***8. It seems that the aforesaid position of law was not brought into the notice of the learned Division Bench which passed the order in MCC No. 1962/2007. However, in view of the Division Bench decision in the case of Bhagwati Prasad Singhal (supra) and further in view of Rule 1 of the Chapter III of the High Court Rules and Orders read with Section 139 of CPC and Oath Commissioner Rules, there seems to be no default and accordingly, the default pointed out by the office is liable to be ignored. Office is now t directed to ignore the default and proceed with the case in due manner.
26. In our considered opinion the learned Single Judge has not correctly appreciated the ratio of the decision rendered in Bhagwati Prasad Singhal (supra), and has also not soundly placed interpretation on Section 139 of the CPC arid provisions relating to Commissioner of Oaths Rules, 1976.
27. In view of the aforesaid we are of the considered opinion that Oath Commissioner is not entitled under the law to administer the oath and receive solemn affirmation under the Commissioner of Oaths Rules, 1976 for the purpose of a proceeding in the High Court. Thus, view taken in Smt. Manju Singh Parmar (supra) lays down the correct law. Consequently, the order passed in Maharishi Mahesh Yogi Shiksha Prasaar Samiti (supra) stands overruled.
Learned Counsel for the parties are directed to rectify the default within a period of four weeks hence.