An affidavit sworn before a Notary is a 'notarial act' and, therefore, stamp duty under Article 42 of the Rajasthan Stamp Law (Adaptation) Act, 1952, is leviable.

ORDER:- 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 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 two-fold. 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 pointed under the Notaries Act, 1952 has been designated by the High Court to 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 petition contends, on the basis of the aforesaid notification, that as a Notary has also been designated as the person before whom affidavit could be sworn or affirmed under Section 139 of Civil P. C. and Section of Criminal P. C. (old), an affidavit sworn, before such a Notary and presented 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 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 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 he subordinate courts. The sai