Dhirendra Kumar and anr. Vs. Binay Kumar Singh and ors. - Court Judgment

Excerpt:
- constitution of india article 215: [m. karpaga vinayagam, cjm, .y.eqbal & amareshwar sahay, r.k. merathia, narendra nath tiwari, jj] contempt proceedings review powers of high court held, article 215 of the constitution vests the high court with all the powers of court of record including the power to punish for its contempt. this special jurisdiction is inherent in a court of record from the very nature of the court itself. the said special power is not subject to the procedural law either of the criminal procedure code or the contempt of courts act. the high court can deal with the matter summarily and can adopt its own procedure. however, if the high court initiates the proceeding as a court of record, principle of natural justice must be applied and the contemner should be given sufficient opportunity to know the accusation and to defend himself. in the instant case, the contemner was served with the notice to show cause. he was well aware of the accusation. he also admitted his guilt. in view thereof, contention of the contemner lawyer that he was not heard on merit of the contempt application and the impugned judgment of punishing petitioner in contempt of court is violative of principles of natural justice, is not tenable. article 215: contempt proceedings review of conviction held, it is the solemn duty of the bench and bar to maintain and uphold the majesty, authority and dignity of the courts for the sustenance and progress of democracy in our country particularly at the juncture when there are number of instances of outside attempt to disintegrate and destroy the democratic set up of our country. such conduct of a member of the bar brings the authority of the court and the administration of justice into disrespect, erodes and undermine the foundation of the judiciary by shaking faith and confidence of the people in the ability of the courts to deliver free and fair justice, it is a deliberate attempt to insult the high court and denigrate the authority and solemnity and court strongly deprecate such attempt made with biased attitude. such indiscriminate allegations against judges, who are the members of the bench, cannot be a ground for review of the impugned judgment. punishment of prohibiting appearance of contemner/lawyer before high court as well as courts under its jurisdiction is based on his repeated convictions for contempt in the past is not violative of article 19(g) of the constitution. no interference in exercise of review jurisdiction is warranted. orderp.k. balasubramanyan, c.j. 1. heard both sides.2. this is a proceeding under article 227 of the constitution of india by the opposite parties in a probate proceeding challenging the order of the additional district judge allowing an amendment of the application for probate.3. it is seen that the application for probate was made by the legal representatives of the alleged legatee under the will propounded. it is seen that the legatee died before the testator died. the opposite parties had opposed the application. the applicants in the proceeding filed an application for amendment of the original application for issuance of probate by adding paragraph 10(a) to the petition by setting up a case that subsequent to the death of the legatee and during the life time of the alleged testator, the alleged testator had made a declaration that the sons of the legatee will be the beneficiaries. this application for amendment was opposed by contending that it was beyond the scope of the proceeding initiated; that the alleged will itself was not genuine; that the will was fraudulent and that the amendment sought for was without any bona fides. the trial court allowed the application for amendment. .4. on hearing counsel for the opposite parties, the petitioners before me, i find that the objection of the opposite parties is regarding the maintainability of the application for probate, the genuineness of the will, the genuineness of the alleged subsequent declaration and the filing of such an application in a proceeding for probate of the original will in the form it was sought for in the petition, i think that these are all matters, which have to be decided by the court after trial and at the time of final disposal of the proceeding. but, i find substance in the objection raised on behalf of the opposite parties, the petitioners before me, that the trial court was completely in error in proceeding to make observations touching on the merits of the claim. the trial court in its order itself observed that the matter is at the preliminary stage and issues and evidence are yet to come. in such a situation, it is not expected of the trial court to deal with the merits of the claim in any manner. in fact, all the observations on merits are unwarranted at the stage of considering whether the amendment is to be allowed or not. therefore, it is clear that the observations in the order on merits, appearing in the third penultimate paragraph of the order are unwarranted and uncalled for. they are set aside. the order of the court below is upheld only to the extent of allowing of the amendment. in the circumstances, it is made clear that it is open to the opposite parties, the petitioners before me, to file an additional objection to the amended application, if so advised. it is the duty of the trial court to consider all their objections while disposing of the suit after a proper trial, in accordance with law.5. subject to the above, the proceeding is closed.

Judgment:
ORDER

P.K. Balasubramanyan, C.J.

1. Heard both sides.

2. This is a proceeding under Article 227 of the Constitution of India by the opposite parties in a probate proceeding challenging the order of the Additional District Judge allowing an amendment of the application for probate.

3. It is seen that the application for probate was made by the legal representatives of the alleged legatee under the Will propounded. It is seen that the legatee died before the testator died. The opposite parties had opposed the application. The applicants in the proceeding filed an application for amendment of the original application for issuance of probate by adding paragraph 10(A) to the petition by setting up a case that subsequent to the death of the legatee and during the life time of the alleged testator, the alleged testator had made a declaration that the sons of the legatee will be the beneficiaries. This application for amendment was opposed by contending that it was beyond the scope of the proceeding initiated; that the alleged Will itself was not genuine; that the Will was fraudulent and that the amendment sought for was without any bona fides. The trial Court allowed the application for amendment. .

4. On hearing counsel for the opposite parties, the petitioners before me, I find that the objection of the opposite parties is regarding the maintainability of the application for probate, the genuineness of the Will, the genuineness of the alleged subsequent declaration and the filing of such an application in a proceeding for probate of the original Will in the form it was sought for in the petition, I think that these are all matters, which have to be decided by the Court after trial and at the time of final disposal of the proceeding. But, I find substance in the objection raised on behalf of the opposite parties, the petitioners before me, that the trial Court was completely in error in proceeding to make observations touching on the merits of the claim. The trial Court in its order itself observed that the matter is at the preliminary stage and issues and evidence are yet to come. In such a situation, it is not expected of the trial Court to deal with the merits of the claim in any manner. In fact, all the observations on merits are unwarranted at the stage of considering whether the amendment is to be allowed or not. Therefore, it is clear that the observations in the order on merits, appearing in the third penultimate paragraph of the order are unwarranted and uncalled for. They are set aside. The order of the Court below is upheld only to the extent of allowing of the amendment. In the circumstances, it is made clear that it is open to the opposite parties, the petitioners before me, to file an additional objection to the amended application, if so advised. It is the duty of the trial Court to consider all their objections while disposing of the suit after a proper trial, in accordance with law.

5. Subject to the above, the proceeding is closed.