D.P. Gupta, J.
1. Heard learned counsel for the petitioner and Additional Government Advocate on the question as to whether an affidavit sworn before a Notary and presented in this Court should bear a notary stamp of Rs. 3.20 under Article 42 of the Rajasthan Stamp Law (Adaptation) Act, 1952 (hereinafter referred to as 'the Act'). The affidavit which has been presented in this case was sworn before a Notary appointed under Section 3 of the Notaries Act, 1952, but as no stamp was affixed on the said affidavit, an objection was raised by the office that the affidavit could not be taken into consideration as it was not properly stamped.
2. Learned counsel for the petitioner contends that no stamp duty is leviable in case an affidavit verified by a Notary is presented in this Court. The argument of the learned counsel is twofold. In the first instance he relies upon a notification issued by this Court on January 29, 1963 and published in the Rajasthan Gazette dated February 21, 1963 Part 4 (c) whereby every Notary appointed under the Notaries Act, 1952 has been designated by the High Court to be a person appointed under Section 139 of Civil P. C. and Section 539 of Criminal P. C. (Act No. 5 of 1898) before whom affidavits and affirmation to be used before the High Court or Subordinate courts may be sworn or affirmed.
Learned counsel for the petitioner contends, on the basis of the aforesaid notification, that as a Notary has also been designated as the person before whom an affidavit could be sworn or affirmed under Section 139 of Civil P. C. and Section 539 of Criminal P. C. (old), an affidavit sworn before such a Notary and presented in this Court should be considered at par with an affidavit sworn before an Oath Commissioner appointed by this Court and, therefore, the same should be considered to be exempted from payment of stamp duty.
The other argument of the learned counsel is that Article 4 of the Act makes an exemption in respect of affidavits sworn or affirmed for the immediate purpose of being filed or used in any court or before an officer of any court and that as Article 4 is a specific Article it would override the provisions of Article 42, which provides for charging of stamp duty in respect of Notarial Acts. Learned Additional Government Advocate, however, contends that the provisions of Article 42 are applicable to affidavits sworn before a Notary, even though they may be presented before this Court and a Notary stamp of Rs. 3.20 is required to be affixed on such an affidavit before it can be filed in this Court.
3. I have considered the rival contentions. The notification issued by this Court dated January 29, 1963, relied upon by the learned counsel for the petitioner has no relevancy to the matter regarding the charging of stamp duty in respect of affidavits sworn before a Notary. The relevant records of this Court which led to the issuance of the aforesaid notification have also been placed before this Court. It appears that previously there was some controversy as to whether affidavits sworn or affirmed before a Notary are admissible when presented before a civil court or a criminal court and in order to put an end to that controversy, the High Court thought it proper that a person who has been appointed as a Notary under Section 3 of the Notaries Act may also be authorised as the person before whom affidavits may be sworn or affirmed for presentation before a civil court or a criminal court under Section 139, Civil Procedure Code and Section 539 of Criminal P. C. (old). The notification of January 29, 1963 was, therefore, issued in order to direct and to clarify that affidavits sworn or affirmed before the Notary would be admissible if presented before a civil or a criminal court. The aforesaid notification does not make a mention as to whether the affixation of any stamp would be necessary or not on an affidavit that may be sworn or affirmed before a Notary when the same is filed or used in this Court or in the subordinate courts. The said notification only designated a Notary as an authorised person under Section 139, Civil Procedure Code and Section 539, Criminal Procedure Code (old) for the purpose of swearing and affirmation of affidavits. Thus the aforesaid notification does not help the petitioner in respect of the present controversy.
4. As regards the second contention advanced by the learned counsel, Article 4 requires stamp to be affixed on an affidavit although an exemption has been provided therein in respect of three types of affidavits, including those which are sworn or affirmed for the immediate purpose of being filed or used in any court or before an officer of any court. Thus there is no doubt that the affidavits filed or used in this Court do not require to be affixed with a stamp under Article 4 of the Act. Yet Article 42 of the Act makes a further provision for affixation of stamp to any instrument, endorsement, note, attestation or certificate made or signed by a Notary in the execution of the duties of his office or by any other person lawfully acting as a Notary Public. Now 'Notarial act', which requires the affixation of stamp under Article 42 has not been defined under the Act but under the Notaries Act, 1952, the duties and functions of a Notary have been specified and performance of such functions and duties by a Notary would amount to the performance of Notarial acts by such a person within the meaning of Article 42 of the Act.
Clause (c) of Section 8(1) of Notaries Act authorises the Notary by virtue of his office, to administer oath to or take affidavit from any person. Further Subsection (2) of Section 8 provides that no act specified in Sub-section (1) shall be deemed to be a 'notarial act', except when it is done by a Notary under his signature and official seal. Learned counsel had conceded that the affidavit verified or affirmed by a 'Notary act' filed or used in this Court or in subordinate courts in this State are verified by the Notary under his signatures and official seal of the Notary. If such an act is done by the Notary, acting as a Notary, under his signatures and official seal of the Notary, then it is definitely a 'notarial act' and for such 'notarial acts', stamp duty under Article 42 of the Act is leviable.
Learned counsel relied upon a decision of the Allahabad High Court but that is not applicable to the facts of the present case inasmuch as in that case the affidavit was sworn before a Magistrate who derived power to swear affidavits not by virtue of his appointment under the Notaries Act, but from the provisions of Section 539 (AA) of Criminal P.C., (old) and it was therefore held in that case that the affidavit sworn by such a Magistrate did not require affixation of any stamp as the Magistrate did not perform any 'notarial act' and while verifying the affidavit he was not acting by virtue of his appointment as a Notary under the Notaries Act. The exemptions specified in Article 4 only provide for exemption from payment of stamp duty leviable under Article 4. But such exemptions cannot be construed as exemptions in respect of stamp duty payable under Article 42 of the Act. The affidavit which has been presented in this Court has been verified by Mr. R. R. Bhandari as a Notary under his signatures and the official seal of the Notary and in my opinion the verification of such an affidavit is a 'notarial act'. In these circumstances the office objection deserves to be upheld and it must be held that notary stamp of the value of Rupees 3.20 should be affixed on such an affidavit sworn or affirmed before a Notary, before the same can be filed or used in this Court.
5. Learned counsel for the petitioner prays for a week's time to file a fresh affidavit which is allowed.