Amarjit Kaur v. Pritam Singh & Others

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 941, 1123, 1572, 1666, 1667, 1760, 1780 of 1973 and 8 of 1974. Appeals by special leave from the judgment and order dated the 22nd May/31st August, 22nd May /20th September/I 7th August/ 17th September, 1973 of the Punjab & Haryana High Court in R. S. As. Nos. 1095/71, 271/69, IJ/68, 879170, 899171, 2015170 and 1137 of 197l respectively. D. V. Patel, V. C. Mahajan, S. S. Khanduja, Janardhan Sharma, Ram Swarup, R. A. Gupta, Hardev Singh, Bupinder Singh, J. D. Jain, R. C. Kohli and S. C. Patel for appellunts. Hardyal Hardy, 0. P. Sharma, S. K. Mehta, K. R. Nagaraja, M. Quarnaruddin and Vinod Dhawan for respondents. The Judgment of the Court was delivered by MATHEW, J.-In these appeals, a common questioi1 of law arises for consideration and this judgment will disporn of all the appeals. We will take up for consideration Civil Appeal No. 941 (N) of 1973.

The appellant challenges the correctness of a decree pamd by the High Court dismissing a suit for pre-emption. The plaint property belonged to defendant No. 4. He sold the rnme to defendants Nos. I to 3 by a sale deed dated July 29, 1965 and registered on October 14, 1965. The appellant who is the daughter of defendant No. 4 claiming that she has right to pre-empt, instituted the suit through her guardian. The trial court decreed the suit. Against the decree, an appeal was preferred by the ~andees. That appeal was dismissed on July 17, 1971. An appeal was preferred to the High Court against this dec1ee. The Punjab Pre-em~tion (R~poal) Act, 1973 (Act II of 1973) receiv-...d the assent of the Governor. of Punjab on April 6, 1973 and was published in the Punjab Gazotte on April 9, 1973. The High Court allowJd the appeal and dismi~sed t~e suit holding that the provision of s. 3' of the above Act should govern the decision.

The plaintiffappdlant then applied for leave to file Letters Patent Appeal. That was dismissed. Section 3 of the Punjab Pre-emption (Repeal) Act, 1973, provides: "Bar to pass decree in suit for pre-E mption....:On and from the date of commencement of the Punjab Pre-emption (Repeal) Act, 1973, no court shall pass a decree in any suit for pre-emption". The section, in effect, says that no court shall decree a suit fo1 preem;ition after the coming into force of the Act: The question is, whether the appellate court, when it passes a decree, confirming the decree for pre-emption passed by the trial court or the lower appellate . court, is passing a decree for pre-emption. In Lachweshwar Prasad Shukul v. Keshwar Lal Cluwdhury (') it was held that once the decree passed. by a court had been appealed against, the m1tter became sub-judice again and thereafter the appellate court has •eisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the courts below re• tainod jurisdiction.

The Court further said that it has been a principle of legislation in British India at Ieasffrom 1861 that a court of appeal shal.I have.the same powers and shall perform as nearly as may· be the same duties as are conferred and imposed by the Civil Procedure Code on courts of original jurisdiction, that even before the enactmmt of that Code, the position was explained by Bhashyam Iyengar 1: in Kristnama Chariviar v. Mangamma! (') in language which m1kes it clear that the hearing of an appeal is under processual law of this country in the nature of a re-hearing, and that it is on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a cas~ on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence. a.Iler the. decree appealed against.

As an appeal is a re~hearing, itwould follow that if the High Court were to dismiss the appeal, iUvould be passing a decree in a suit for pre-em;ition. Therefore, the only course open to. the High Court .·was to allow the appeal and that is what the High Court has done. In other words, if the High Court were to confirm the decree. allowjng the suit" for pre-emption, it would be passing a deacee in a suit for pre' em;ition, for, when the appellate court confirms a decree, it passes a decree of its own, and therefore, the High Court was _right in allowing the appeal. We, therefore, dismiss the appeal ,but, in the circumstances; make no order as to costs. Appeal dismisred. · · (I) (1940) F.C.R. 8~. (2) [1902) I.LR. 26 Mad. 91, atpp.95-96.