Punjab-Haryana High Court
Satbir vs Raghbir on 11 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:034533
2024:PHHC:034533
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
215
RSA-101-1996 (O&M)
Date of decision : 11.03.2024
Satbir and another ... Appellant(s)
Versus
Raghbir ...Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. R.S. Mamli, Advocate for the appellants.
Mr. Raman Sharma, Advocate for the respondent.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the plaintiff-
appellants challenging the judgment and decree dated 13.10.1995 passed by
the First Appellate Court.
2. Brief facts relevant to the present lis are that the plaintiff-
appellants filed a suit for possession by way of pre-emption against the
defendant-respondent in respect of land measuring 13 kanal 18 marlas,
which was a part of total land measuring 122 kanals and was sold by the
vendor Karta Ram son of Chhotu Ram to the defendant-respondent for a
sum of Rs.35,000/- on 12.12.1988 vide registered sale deed on the ground
that the plaintiff-appellants are co-sharers in the khewat. The suit was
decreed by the Trial Court vide judgment and decree dated 06.05.1995.
Aggrieved by the same, the defendant-respondent had preferred an appeal
before the First Appellate Court which appeal was allowed vide judgment
and decree dated 13.10.1995 on the ground that there was an amendment in
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the Punjab Pre-emption Act, 1913 whereby the right of the co-sharer had
been taken away.
3. Learned counsel for the plaintiff-appellant has relied upon the
judgment of the Larger Bench of the Hon'ble Supreme Court in the case of
Shyam Sunder & Anr. V/s Ram Kumar & Anr. [2001 (3) RCR (Civil)
754] to contend that the amendment would not have retrospective effect. It
was further held that the right to pre-empt must exist on the date of the
decree of the first Court and that the amendment under Section 15 as
introduced by the Haryana Amendment Act of 1995 does not have
retrospective effect.
4. Learned counsel for the defendant-respondent is not in a
position to deny the law as laid down by the Hon'ble Supreme Court in
Shyam Sunder's case (supra).
5. Heard.
6. In the present case the suit was dismissed only on the ground
that as per the amendment under Section 15 of the Act the rights of a co-
sharer to pre-empt have been taken away. The law now stands settled in the
case of Shyam Sunder (supra) wherein it has been held as under :
'From the aforesaid decisions the legal position that
emerges is that when a repeal of an enactment is
followed by a fresh legislation such legislation does not
effect the substantive rights of the parties on the date of
suit or adjudication of suit unless such a legislation is
retrospective and a court of appeal cannot take into
consideration a new law brought into existence after the
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judgment appealed from has been rendered because the
rights of the parties in an appeal are determined under
the law in force on the date of suit. However, the
position in law would be different in the matters which
relate to procedural law but so far as substantive rights
of parties are concerned they remain unaffected by the
amendment in the enactment. We are, therefore, of the
view that where a repeal of provisions of an enactment
is followed by fresh legislation by an amending Act such
legislation is prospective in operation and does not
effect substantive or vested rights of the parties unless
made retrospective either expressly or by necessary
intendment. We are further of the view that there is a
presumption against the retrospective operation of a
statute and further a statute is not to be construed to
have a greater retrospective operation than its language
renders necessary, but an amending Act which affects
the procedure is presumed to be retrospective, unless
amending Act provides otherwise. We have carefully
looked into new substituted section 15 brought in the
parent Act by Amendment Act 1995 but do not find it
either expressly or by necessary implication
retrospective in operation which may effect the right of
the parties on the date of adjudication of suit and the
same is required to be taken into consideration by the
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appellate Court. In Shantidevi (Smt) and another vs.
Hukum Chand [1996 (5) SCC 768] this Court had
occasion to interpret the substituted section 15 with
which we are concerned and held that on a plain
reading of section 15 it is clear that it has been
introduced prospectively and there is no question of
such section affecting in any manner the judgment and
decree passed in the suit for pre-emption affirmed by the
High Court in the second appeal. We are respectfully in
agreement with the view expressed in the said decision
and hold that the substituted Section 15 in the absence
of anything in it to show that it is retrospective, does not
effect the right of the parties which accrued to them on
the date of suit or on the date of passing of the decree by
the Court of first instance. We are also of the view that
present appeals are unaffected by change in law in so
far it related to determination of the substantive rights
of the parties and the same are required to be decided in
light of law of preemption as it existed on the date of
passing of the decree.'
7. In view of the fact that the suit was dismissed only on the
ground that vide Notification dated 07.09.1995 there was an amendment to
Section 15 of the Act and the case was not decided on merits, this Court
deems it appropriate to remand the matter back to the First Appellate Court
concerned to decide the same afresh, on merits. Since the matter pertains to
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the year 1996, Registry is directed to remit the matter for 05.04.2024 to the
successor Court of the learned First Appellate Court, who shall issue notice
to the parties and proceed accordingly.
8. Disposed off in the above terms. Pending applications, if any,
also stand disposed off.
11.03.2024 (ALKA SARIN)
Ankur JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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