Girraj Singh v. Khachara Etc.

2024:PHHC:027530

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: 27.02.2024 GIRRAJ SINGH .... Appellant

VERSUS

KHACHARA AND ORS .... Respondents CORAM : HON'BLE MRS. JUSTICE ALKA SARIN Present :

Mr. R.S. Kundu, Advocate and Mr. Anshul Singh Chahal, Advocate for the appellant. Mr. Varun Parkash, Advocate for respondents No.1 to 3 and 8. Mr. Abhilaksh Grover, Advocate for respondents No.5 to 7. ALKA SARIN, J. (ORAL) 1.

The present appeal has been preferred by the plaintiff-appellant aggrieved by the judgment and decree dated 04.09.1995 passed by the learned Additional District Judge, Faridabad. 2.

The brief facts relevant to the present lis are that the plaintiffappellant had filed a suit for possession by way of pre-emption of the land measuring 13 marla out of total land of 3 kanals and 8 marla, as described in the plaint. Vide judgment and decree dated 09.08.1994 the suit was decreed. Aggrieved by the same the defendant-respondents preferred an appeal before the First Appellate Court. Vide impugned judgment and decree dated 04.09.1995 the First Appellate Court allowed the appeal and dismissed the suit only on the ground that vide Notification dated 07.09.1995 Section 15 of the Punjab Pre-emption Act, 1913 (for short 'the Act') had been amended

-2and right of pre-emption vested only in tenants and hence the co-sharers had no right. Hence, the present regular second appeal by the plaintiff-appellant. 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-respondents are 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 cosharer 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

-3consideration 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.

-4the 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

-5Section 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. Parties are directed to appear before the First Appellate Court concerned on 20.03.2024 at 10:00 am. Records be also sent back.

8.

Disposed off in the above terms. Pending applications, if any, also stand disposed off.

27.02.2024 (ALKA SARIN) Aman Jain JUDGE NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: YES/NO