Mohinder Singh v. Krishan And ORS.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision : 28.05.2024 MOHINDER SINGH .... Appellant

VERSUS

KRISHAN AND ORS.

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

Dr. Anand Kumar Bishnoi, Advocate for the appellant. Mr. Yash Yadav, Advocate for respondents No.1 to 6. ALKA SARIN, J. (ORAL) 1.

The present appeal has been preferred by the plaintiff-appellant aggrieved by the judgment and decree dated 16.10.1995 passed by the First Appellate Court.

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 as described in the plaint. Vide judgment and decree dated 21.08.1993 passed by the Trial Court the suit was decreed. Aggrieved by the same the defendant-respondents No.1 to 6 preferred an appeal before the First Appellate Court. Vide impugned judgment and decree dated 16.10.1995 the First Appellate Court allowed the appeal and dismissed the suit of the plaintiff-appellant only on the ground that as a result of the Punjab Preemption (Haryana Amendment) Act, 1955 (hereinafter referred to as the Act), which came into effect in May 1995, the right of pre-emption is now

-2available only to the tenant and hence a co-sharer has no right to pre-empt. 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 therein 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 of the Act, as introduced by the Haryana Amendment Act of 1995, does not have retrospective effect.

4.

Learned counsel for defendant-respondents No.1 to 6 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 by the First Appellate Court 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 by the Larger Bench of the Hon'ble Supreme Court 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

-3retrospective 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.

-4retrospective 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 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."

-57.

In view of the fact that the suit was dismissed only on the ground that 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 the year 1995, Registry is directed to remit the same to the successor Court of the learned First Appellate Court concerned for 06.06.2024 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.

28.05.2024 (ALKA SARIN) Aman Jain JUDGE NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: Yes/No