Punjab-Haryana High Court
Jai Parkash vs Suraj Mal on 22 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:042210
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
205
RSA-227-1996 (O&M)
Date of decision: 22.03.2024
Jai Parkash @ Parkash and Another ... Appellant(s)
Versus
Suraj Mal and Others ...Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Harinder Singh Sandhu, Advocate for the appellants.
Mr. Dhananjay Mittal, Advocate for the respondents.
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 on 29.01.1993
Telu Ram son of Smt. Bhaga sold his 1/4th share in land measuring 24
kanals 12 marlas comprised in Khewat No.315, Khasra Nos.528-529, 1/4th
share in land measuring 56 kanals comprised in Khewat No.466, Khasra
Nos.766, 767 and his 15/60th share in land measuring 27 kanals 8 marlas
comprised in Khewat No.731, Khasra Nos.1202, 1203 total measuring 27
kanals for the sale consideration of Rs.1,14,750/-. The present suit was filed
by the plaintiff-appellants for pre-empting the sale on the ground that they
were co-sharer in the suit property. Vide judgment and decree dated
21.10.1994 the suit was decreed by the Trial Court. Aggrieved by the same,
an appeal was preferred by the defendant-respondents which was allowed
integrity of this judgment/order.
RSA-227-1996 (O&M) 2024:PHHC:042210 --2--
vide judgment and decree dated 13.10.1995 on the ground that there was an
amendment in the Punjab Pre-emption Act, 1913 whereby the right of the
co-sharer had been taken away.
3. Learned counsel for the plaintiff-appellants 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 apply prospectively and 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-respondents is not in a
position to controvert the position in 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
integrity of this judgment/order.
RSA-227-1996 (O&M) 2024:PHHC:042210 --3--
retrospective and a court of appeal cannot take into
consideration a new law brought into existence after the
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
integrity of this judgment/order.
RSA-227-1996 (O&M) 2024:PHHC:042210 --4--
the parties on the date of adjudication of suit and the
same is required to be taken into consideration by the
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
integrity of this judgment/order.
RSA-227-1996 (O&M) 2024:PHHC:042210 --5--
deems it appropriate to remand the matter back to the First Appellate Court
concerned to decide the same afresh, on merits, on all issues. Since the
matter pertains to the year 1996, the Registry is directed to remit the matter
for 15.05.2024 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.
22.03.2024 (ALKA SARIN)
Ankur JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this judgment/order.
