Affidavit stamping and affirmation defects held curable where the document was for court use and no substantive right was affected.

An affidavit filed solely for use in court and not creating or extinguishing any right or liability was held not to attract stamp duty under the Indian Stamp Act, 1899, and also within the exemption for affidavits made for immediate filing or use in court; the prior contrary direction was recalled. A supplementary affidavit affirmed before a foreign notary was held receivable, as separate identification was not required on the facts and the notarial and evidence rules supported admissibility. Defects in the writ petition affidavit and affirmation were treated as procedural and curable, and the petitioner was allowed time to reaffirm or file a supplementary affidavit, failing which dismissal would follow.

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Issues: (i) whether a supplementary affidavit sworn outside India required stamping under the Indian Stamp Act, 1899; (ii) whether a supplementary affidavit affirmed before a foreign notary could be received in the proceeding; (iii) whether defects in the writ petition affidavit and affirmation were fatal or curable.

Issue (i): whether a supplementary affidavit sworn outside India required stamping under the Indian Stamp Act, 1899.

Analysis: Section 18 of the Indian Stamp Act, 1899 applies to instruments executed out of India, and the expression "instrument" in Section 2(14) covers documents that create, transfer, limit, extend, extinguish, or record rights or liabilities. A supplementary affidavit that does not create or extinguish any right or liability does not answer that description. Even otherwise, Serial No. 4(b) of Schedule 1A exempts an affidavit made for the immediate purpose of being filed or used in Court, and the stated purpose of the affidavit brought it within that exemption.

Conclusion: No stamp duty was payable on the supplementary affidavit, and the earlier contrary direction was recalled.

Issue (ii): whether a supplementary affidavit affirmed before a foreign notary could be received in the proceeding.

Analysis: The affidavit was affirmed before the same Notary Public who had earlier attested the power of attorney, so separate identification of the deponent was not necessary in the facts of the case. Rule 29 of Chapter IV of the Appellate Side Rules requires identification only when the deponent is not personally known to the Commissioner. The affidavit was also held admissible in light of Section 82 of the Indian Evidence Act, Rule 16 of Chapter XV of the Original Side Rules, and the notarial framework under Sections 14 and 15 of the Notaries Act, 1952.

Conclusion: The supplementary affidavit was held to be acceptable and receivable in the proceeding.

Issue (iii): whether defects in the writ petition affidavit and affirmation were fatal or curable.

Analysis: The writ petition affidavit did not conform to the prescribed rules of affirmation, and the constituted attorney had no personal knowledge of all the statements. However, the defects were procedural and capable of being rectified. The Court therefore permitted the petitioner to cure the defect by reaffirming the affidavit or filing a supplementary affidavit within the time granted.

Conclusion: The defects were treated as curable and the petitioner was granted time to remedy them, failing which dismissal would follow.

Final Conclusion: The supplementary affidavit was accepted, the stamp-duty objection was rejected, and the writ petition was allowed to proceed subject to curing the affidavit defect within the time granted.

Ratio Decidendi: An affidavit filed solely for use in court, which does not create or extinguish rights, is either outside the mischief of stamping provisions or falls within the statutory exemption for affidavits made for the immediate purpose of being filed in court; procedural defects in affidavit affirmation may be treated as curable where no irretrievable prejudice is shown.

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