Shaikh Mohammad Azahar v. Ishwar Pralhad Dham

15. Support sought to be drawn to sustain an application for rejection of such proceeding from the provisions contained in Section 141 of the Code, according to Mr. Pramod Patil, is unsustainable. The provisions contained in Section 141 of the Code are enabling in nature and do not mandate that the procedure provided in the Code be followed in all proceedings before the Civil Court. Mr. Pramod Patil submitted that Section 141 of the Code makes it abundantly clear that the procedure prescribed in the Code be followed as far as it can be made applicable. The provisions contained in Order VII Rule 11 of the Code, according to Mr. Pramod Patil, cannot at all be made applicable to a proceeding under Section 263 of the Indian Succession Act as it confers a statutory right upon an aggrieved person to seek revocation of probate or letters of administration. Such statutory right cannot be interdicted by filing an application under Order VII Rule 11 of the Code. Lest the provisions contained in Section 263 of the Indian Succession Act would be rendered nugatory.

16. To buttress the aforesaid submission, Mr. Pramod Patil placed reliance on an order passed by a learned Single Judge of this Court in Civil Revision Application No. 481 of 2023 dated 10th November 2023, wherein it was held in clear terms that the provisions contained under Order VII Rule 11 of the Code do not apply to an application for revocation of heirship certificate issued under the provisions of the Bombay Regulation Act, 1827

17. Mr. Drupad Patil, the learned counsel for the applicant joined the issue by canvassing multi-pronged from submissions. Firstly, Mr. Drupad Patil would urge, a plain reading of the provisions contained in Section 141 of the Code in conjunction with the provisions contained in Section 295 and 263 of the Indian Succession Act, does not rule out the applicability of the provisions contained in Order VII Rule 11 of the Code to a proceeding for revocation of the probate or letters of administration, under Section 263 of the Indian Succession Act, 1925. Mr. Drupad Patil would urge, all the necessary factors to make the procedure contained in the Code applicable to a proceeding for revocation of probate or letters of administration obtain in a situation of the present nature. Firstly, the proceeding under Section 263 of the Act, 1925 falls within the ambit of the term ‘Proceedings” under Section 141 of the Code. Secondly, the said proceeding is undoubtedly before a Civil Court. Thirdly, the qualifying expression in Section 141 namely “as far as it can be made applicable” cannot be so construed as to make the provisions of the Code inapplicable to such proceeding, in the absence of any indication to the contrary.

18. Mr. Drupad Patil further submitted that the reliance on the judgment in the case of Nalini Navin Bhagwati (supra) is of no assistance to respondent no. 1. The core question that arose for consideration in the said case was, can an application filed under Section 263 of the Act, 1925 be treated as a contentious suit as envisaged by Section 295 of the Act, 1925. The decision in the case of Nalini Navin Bhagwati (supra), according to Mr. Durpad Patil, cannot be said to be an authority for the proposition that an application under Order VII Rule 11 of the Code for rejection of the proceeding under Section 263 of the Act, 1925, is not at all maintainable.

19. Secondly, Mr. Drupad Patil submitted that this very question has been dealt with by another learned Single Judge of this Court in the case of Vijay Shivram Pathare Vs. City Corporation Limited and Anr[1], wherein, an objection to the tenability of an application for rejection of a proceeding under Section 263 of the Act 1925, based on the decision of the Supreme Court in the case of Nalini Navin Bhagwati (supra) was repelled by the learned Single Judge. Though the said decision in the case of Vijay Shivram Pathare (supra) was rendered prior in point of time, the same was not brought to the notice of the learned Single Judge in the case of Hiraman Shankar Khanavkar (supra) and, therefore, the subsequent decision in the case of Hiraman Shankar Khanavkar (supra) without noticing an earlier decision of the coordinate bench cannot command precedential value, submitted Mr. Drupad Patil.

20. Thirdly, laying emphasis on the object of the provisions contained in Order VII Rule 11 of the Code, Mr. Drupad Patil would urge if a wholly sham and vexatious proceeding under Section 263 of the Act 1925 is filed, it cannot be said that the Court has no power to dismiss such proceeding at the very threshold.

21. Lastly, Mr. Drupad Patil placed reliance on a judgment of Supreme Court in the case of Subal Paul Vs. Malina Paul and Anr,[2] wherein in the context of the tenability of an appeal against judgment delivered by the Single Judge under Section 299 of the Act, 1925 before the Division Bench, the Supreme Court had enunciated that the order passed by the Court under Section 299 of the Act, 1925 though may not be stricto sensu a decree within the meaning of Section 2(2) of the Code of Civil Procedure Code but it is beyond any cavil that the same would be a judgment within the meaning of Section 2(9) thereof.

22. Drawing analogy Mr. Drupad Patil would urge, when a proceeding under Section 263 of the Act, 1925 is filed to revoke a probate or letters of administration based on such judgment, the nonexistence of the cause of action or any other bar to the tenability of such application, must be dealt with at the threshold and such a proceeding can be rejected by invoking the power under Order VII Rule 11 of the Code.

23. The aforesaid submissions now fall for consideration.

24. To begin with, it may be necessary to note the nature of the proceeding under Section 263 of the Act, 1925. Section 263 reads as under: “263. Revocation or annulment for just cause.— 2 (2003) 10 SCC 361. The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation. —Just cause shall be deemed to exist where— (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

25. As the text of aforesaid section indicates the grant of Probate or Letters of Administration may be revoked if the proceedings to obtain the grant were, “defective in substance”, or the grant was obtained fraudulently by making a false suggestion or by suppressing from the Court something material to the case or if the grant was obtained by means of untrue allegations or if the grantee has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of Part IX.

26. Section 263 of the Act vests a judicial discretion in the Court to revoke or annul the grant for “just cause”. The Explanation to Section 263 enumerates the circumstances in which the Court may legitimately draw an inference that a just cause to revoke the grant has been made out. It is trite, the onus rests on the person who seeks the revocation of the grant to show that a just cause for revocation exists.

27. Keeping in view the aforesaid nature of the proceeding under Section 263 of the Act, 1925 the provisions contained in Section 141 of the Code deserve to be noted. It reads as under: “141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. [Explanation.-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.]

28. A plain reading of the aforesaid section would indicate that the procedure in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. By insertion of the Explanation, it has been clarified that the expression "proceedings" includes proceedings under Order IX of the Code, but does not include any proceeding under Article 226 of the Constitution.

29. For the applicability of the procedure provided in the Code two conditions are primarily required to be satisfied. First, it ought to be a “proceeding” within the meaning of Section 141 of the Code. Second, such proceeding ought to be before any court of civil jurisdiction. If these two conditions are satisfied then the provisions in the Code can be made applicable to such proceeding before the civil court, as far as it can be made applicable. A cumulative reading of Section 4 and Section 141 of the Code would thus imply that unless there is a special form of procedure prescribed by or under any other law for the time being in force for a proceeding before the civil court, ordinarily, the procedure provided by the Code can be made applicable as far as possible.

30. The expression, “proceeding” is defined in Black’s Law Dictionary as, “The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.”

31. The expression “Proceedings” in Section 141 of the Code appears to be of wide connotation. The Explanation, appended to Section 141 clearly indicates that it is an inclusive definition. What is expressly included in the Explanation is not exhaustive of the term, “proceedings”, rather illustrative and inclusive. Thus a proceeding filed under Section 263 of the Act 1925 for revocation of probate or letters of administration falls within the ambit of the term “proceeding” under Section 141 of the Code.

32. What is the import of the term “a court of civil jurisdiction” under Section 7 of the Maharashtra Civil Courts Act 1869 (“the Act of 1869”). The District Court shall be the principal Court of original civil jurisdiction in the District, within the meaning of the Code of Civil Procedure. Under Section 28A of the said Act of 1869, the High Court may by general or special order invest any Civil Judge within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act 1925. In exercise of the powers conferred by Section 28A(1) of the said Act of 1869, the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding under Indian Succession Act 1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges (See paragraph 305 Chapter XIV of the Civil Manual).

33. The aforesaid provisions would thus indicate that a court dealing with the matters under the Indian Succession Act, 1925 is the court of civil jurisdiction. Thus, both the Tests of the “proceeding”, and “court of civil jurisdiction” stand satisfied in relation to a proceeding under Section 263 of the Act of 1925.

34. This takes to me to the question of the extent of the application of the provisions of Code, especially, Order VII Rule 11 to a proceeding under Section 263 of the Act of 1925, in the context of the qualifying expression, “as far as it can be made applicable.” The sheet anchor of the submission of Mr. Pramod Patil, was the decision in the case of Nalini Navin Bhagwati (supra).

35. In the said case the probate was granted on 16th January 1967. The Appellants therein filed an Application to revoke the Probate. A prayer to convert the said Revocation Application into a Suit was rejected by the City Civil Court. The High Court directed to treat the Application for Revocation as a Suit filed under Section 295 of the Act of 1925. On Appeal, the Supreme Court was confronted with a question; whether the Application for Revocation of the Probate would be treated as a Suit under Section 295 of the Act of 1925 ?

36. The observations of the Supreme Court in paragraph 7 are material and, hence, extracted below. “7. But when the grant of probate or letter of administration is sought to be revoked, it is not clear what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly when the suit was dismissed for default, under Order IX Rule 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, Section 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is whether such an application would be treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit vs Jevallabh Harijivan (1933) 35 Bom LR 998. Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295.” (emphasis supplied)

37. The Supreme Court has in terms enunciated that the Application for Revocation of Probate or Letters of Administration would be treated as Miscellaneous Application and may be disposed either summarily or after recording the evidence. It is not necessary that a proceeding to revoke the Probate or Letters of Administration would be treated as a Suit as prescribed under Section 295 of the Act of 1925.

38. The question that, however, wrenches to the fore and remains to be answered is, whether the aforesaid pronouncement can be construed to render the provisions of Order VII Rule 11 of the Code inapplicable to a proceeding filed under Section 263 of the Act of 1925, for the reason that the said proceeding is not to be treated as a Suit?.

39. On a fair reading of the aforesaid observations of the Supreme Court, in my considered view, such an inexorable inference is not deducible. The aforesaid decision is an authority for the proposition that such a proceeding under Section 263 of the Act 1925 need not be treated as a Suit. It, however, does not necessarily justify a further inference that the provisions contained in Order VII Rule 11 of the Code need not be made applicable to such proceeding. The submission that if the proceeding is not treated as a Suit, the provisions contained in Order VII Rule 11, which empowers the Court to reject the Plaint, are not attracted, appears to be fallacious.

40. In the case of Vijay Shivram Pathare (supra), a learned Single Judge of this Court, after adverting to the aforesaid pronouncement, observed as under:

41. The reliance placed by Mr. Pramod Patil on the order in the case of Hiraman Shankar Khanavkar (supra) does not seem to advance the cause of the submission on behalf of Respondent No.1. Firstly, the said judgment was rendered in a slightly different fact-situation. In the said case an Application for Revocation of Heirship Certificate was filed and the Applicants therein had sought rejection of the said Application for Revocation, under Order VII Rule 11 of the Code. It is trite, the grant of Heirship Certificate does not determine the proprietary rights of the parties. Heirship Certificate does not confer status of an heir. It merely recognize such status. Secondly, in the said case, the decision of this Court in the case of Vijay Shivram Pathare (supra) was not considered.

42. I find substance in the submission of Mr. Drupad Patil that since the decision in the case of Vijay Shivram Pathare (supra) was rendered prior in point of time, the co-ordinate Bench in Hiraman Shankar Khanavkar (supra) was bound by the said decision and thus the decision in the case of Hiraman Shankar Khanavkar (supra), does not command precedential value.

43. Various provisions of the Code have been held applicable to the proceedings under the Act of 1925 and other special enactments. In the case of Deubai Tukaram Pakhare & Ors Vs Muktabai Tukaram Pakhare & Ors[3] the provisions contained in order VI Rule 17 of the Code were held applicable to the proceeding under Section 373 of the Act of 1925. In the case of Jairam Gurnani Vs Shanta Gurnani,[4] the Delhi High Court has held that the provisions contained in the Code were applicable to the proceedings under the Guardians and Wards Act, in view of the provisions contained in Sections 4 and 141 of the Code.

44. The matter can be looked at form a slightly different perspective. The object of the provisions contained in Order VII rule 11 is to nip in the bud a vexatious and abortive proceeding. Its object is to save the precious judicial time which would otherwise be wasted in dealing with a proceeding which is ex-facie sans cause of action or barred by any provision of law. It serves the cause of public justice by throwing out sham and unwarranted proceeding.

45. In the case of Azhar Hussain Vs Rajiv Gandhi,[5] the purpose of conferment of power to reject the Plaint was expounded as under: 3 2000 (1) MhLJ 511. 4 ILR (1979) I Delhi 99.

“12....The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. That sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinarily civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.”

46. In the case of Dahiben Vs Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives And Ors,[6] the object of Order VII Rule 11 was enunciated as under: “The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.”

47. If a proceeding for Revocation under Section 263 of the Act of 1925 is shown to be ex-facie without any locus or cause of action or otherwise barred by law, it cannot be said that the Court is denuded of the power to stop such proceeding at the threshold and must decide such proceeding after a long drawn hearing or trial. Such an interpretation would defeat the very object of investing jurisdiction in

48. It is well recognized that the period of limitation prescribed in Article 137 of the Schedule to the Limitation Act 1963 applies to a proceeding for revocation of the Probate or Letters of Administration under Section 263 of the Act of 1925. If a proceeding for revocation of the Grant of Probate or Letters of Administration is shown to be clearly beyond the period of limitation from the date of the accrual of the cause of action, such a proceeding must be rejected at the threshold. The provisions contained in Order VII Rule 11(d) would have clear application to such a situation. Merely because the proceeding under Section 263 of the Act of 1925 partakes the character of Miscellaneous proceeding and not a Suit, it cannot be insulated from the operation of Order VII Rule 11.

49. A profitable reference in this context may be made to the judgment of the Supreme Court in the case of Ramesh Nivrutti Bhagwat Vs Dr Surendra Manohar Parakhe,[7] wherein it was enunciated that the residuary entry Article 137 in the Schedule to the Limitation Act, 1963 covers proceedings for Revocation of the Probate or Letters of Administration and the Petition for Revocation of Letters of Administration filed beyond the said period of three years was clearly time barred and, thus, was rightly rejected by the Courts by allowing the Application for rejection of the said Petition for Revocation.

50. The conspectus of the aforesaid consideration is that there is no justifiable reason not to apply the provisions contained in Order VII Rule 11 of the Code to a proceeding under Section 263 of the Act of

1925. I am, therefore, impelled to held that the provisions contained in Order VII Rule 11 are applicable to a proceeding for Revocation of Probate.

51. As far as the parameters for applying Section 141 of the Code to the proceeding under Section 263 of the Act 1925, in my view, the law enunciated by the Supreme Court in the case of Nalini Navin Bhagwati (supra) illuminates the path. If the Court decides to determine the proceeding under Section 263 of the Act 1925 in a summary manner, all the provisions of the Code do not become applicable to such a proceeding. On the other hand, if in the given fact-situation, the Court considers that the issues are required to be determined by providing an opportunity to adduce evidence, then, the provisions of the Code which govern the procedure of trial, wherein evidence is recorded, can be made applicable. No straight jacket formula as to the applicability of the particular provision of the Code can be laid down. The applicability of the provisions of the Code to a proceeding under Section 263 of the Act of 1925 would hinge upon the fact-situation of the given case.

52. This takes me to the merits of the matter. As noted above, the rejection of the Application for Revocation of Probate was sought on the ground that the decree passed by the Civil Court granting Probate is amenable to an Appeal under the provisions of the Code and, thus, the Application for Revocation was not tenable.

53. The submission is required to be stated to be repelled. Section 263 of the Act of 1925, as noted above, empowers the Testamentary Court to revoke the Grant of Probate or Letters of Administration for a just cause. The said remedy is independent of the right of an aggrieved party to prefer an Appeal against the order granting Probate. The existence of the remedy of Appeal, does not take away the right of an aggrieved person to seek revocation of Probate or Letters of Administration, provided he succeeds in establishing a just cause for the same.

54. In the case at hand, the civil Court has granted the Probate by a judgment and order dated 16th November 2021. The Application for Revocation of the Probate came to be filed on 15th March 2022. The Application is, evidently, within the statutory period of limitation.

55. It is trite, while considering the Application for rejection of the Plaint, the Court can only examine the averments in the Plaint and the documents annexed thereto. The defence of the Defendant is totally irrelevant. If on a meaningful reading of the Plaint, the Court finds that there is no cause of action or the relief claimed is otherwise barred by any law, then only a Plaint can be rejected.

56. On the aforesaid touchstone, if the averments in the Application for Revocation of the Probate are considered, it becomes evident that the Applicant has made assertion which prima facie fall within the ambit of Clauses (b) and (c) of the Explanation to Section 263 of the Act of 1925.

57. The peculiar circumstances in which the Probate came to be granted deserve to be noted. Initially, Respondent Nos. 3 and 4 herein had preferred an Application for grant of Probate propounding a registered Will of the Testator dated 18th April 2013. The Applicant filed objection and a counter-claim. The Applicant propounded the Will dated 28th October 2016. It seems, later on, Respondent Nos. 3 and 4, the Plaintiffs in the Probate Proceeding, conceded that the Will propounded by the Applicant dated 28th April 2016 was the last Will and Testament of the Testator and the prior Will dated 18th April 2013 stood revoked. From the perusal of the order passed by the learned Civil Judge dated 16th November 2021 it becomes evident that there was no contest as the contents of the counter-claim and the evidence adduced by Applicant-Defendant No.9 and his witnesses had gone unchallenged.

58. It is in the aforesaid context the Respondent No.1 alleges that the said Probate was obtained in collusion by the Applicant, Respondent Nos. 3 and 4, the propounder of the prior Will, and Respondent No.2, Ranjit Burte, who was shown as the attesting witness.

59. A perusal of the Will dated 28th October 2016, prima facie, indicates that there is a reference to the nephews and nieces of the Testator who were then residing in America. The Application preferred by Respondent Nos. 3 and 4 indicates that those heirs of the testator were impleaded as Defendant Nos. 2 to 7 to the said Application. It becomes abundantly clear that neither the Applicant herein, nor Respondent Nos. 3 and 4, nor for that matter, Respondent No.2, Ranjit Burte, who had also propounded another Will dated 25th January 2016, were related to the Testator. All claimed to have worked for the Testator in one or the other capacity. This backdrop of none of these parties being even remotely related to the Testator and, conversely, there were other heirs of the Testator, who were stated to be residing in America also needs to be kept in view.

60. In the aforesaid backdrop the averments in the application for Revocation were required to be appreciated albeit prima facie, to ascertain whether a case for rejection of the application, was made out. Apart from the allegations that the Will dated 28th October 2016 propounded by the Applicant is false and fabricated, the Respondent No.1 has specifically asserted that in the very Will, the Testator purportedly made grave allegations against Ranjit Burte, Respondent No.2 and, yet, the said Ranjit Burte has been shown to have attested the said Will. Respondent No.1 has also alleged that to the said Will a copy of the driving license of Ranjit Burte is annexed; which shows that the said license was issued on 6th July 2017 well after the purported execution of the said Will on 28th October 2016. The Testator passed away on 13th November 2016; under two weeks of the execution of the Will in question. The intrinsic evidence of the Will also indicates that the Testator was suffering from Alzheimer and mental illness since the year 2002.

61. The assertions in the application for Revocation of the Probate are required to be appreciated in the light of the all these factors. It is more so, for the reason that a Testamentary Court is a Court of conscience. If viewed through this prism, it would be rather difficult to draw an inference that the Application for revocation is devoid of substance and deserves to be rejected at threshold. It is an altogether different matter, whether the Applicant would succeed in demonstrating that a just cause for Revocation of probate is made out. That would be a matter for consideration by the Trial Court by adopting the procedure which it considers appropriate in the fact-situation of the case.

62. Resultantly, I am inclined to hold that the learned Civil Judge was justified in rejecting the application for rejection of the proceeding under Section 263 of the Act, 1925.

63. Hence the following order:: O R D E R:

64. The Application stands rejected.

65. No costs. [N. J. JAMADAR, J.]

69. At this stage, the learned Counsel for the applicant seeks continuation of the ad-interim relief.

70. Having regard to the view taken by this Court, the prayer for further continuation of the ad-interim relief does not merit acceptance. Hence, the oral application for continuation of stay stands rejected. [N. J. JAMADAR, J.]