Case Note & Summary
The Supreme Court considered eight civil appeals by special leave against judgments of the Punjab and Haryana High Court, all raising a common question of law about the effect of the Punjab Pre-emption (Repeal) Act, 1973 on pending pre-emption appeals. The representative appeal, Civil Appeal No. 941 (N) of 1973, arose from a suit filed by Amarjit Kaur, daughter of defendant No. 4, claiming a right to pre-empt the sale of property her father had sold to defendants Nos. 1 to 3 by a sale deed dated July 29, 1965 and registered on October 14, 1965. The trial court decreed the suit, and the first appellate court dismissed the vendees' appeal on July 17, 1971. During the pendency of the second appeal before the High Court, the Punjab Pre-emption (Repeal) Act, 1973 (Act 11 of 1973) received the Governor's assent on April 6, 1973 and was published on April 9, 1973. Section 3 of that Act provided that no court shall pass a decree in any suit for pre-emption on and from the date of commencement of the Act. The High Court allowed the appeal and dismissed the suit, holding that the bar under Section 3 applied because the appellate court, if it confirmed the decree, would itself be passing a decree for pre-emption. The plaintiff appellant's application for a Letters Patent Appeal was dismissed, and the matter reached the Supreme Court. The Supreme Court relied on Lachweshwar Prasad Shukul v. Keshwar Lal Chaudhury and Kristnama Chariviar v. Mangammal, which established that an appeal is a rehearing and that the appellate court has seisin of the whole case. The Court reasoned that if the High Court dismissed the appeal and confirmed the pre-emption decree, it would be passing a decree of its own in a suit for pre-emption, which Section 3 prohibited. Therefore, the only course open to the High Court was to allow the appeal and dismiss the suit. The Supreme Court upheld the High Court's decision, dismissed the appeals, and made no order as to costs.
Headnote
A) Civil Procedure - Nature of Appeal and Post-Decree Events - An appeal is a rehearing; the appellate court can mould relief considering facts and events subsequent to the decree appealed against; when an appellate court confirms a decree, it passes a decree of its own - Punjab Pre-emption (Repeal) Act, 1973, Section 3 - In a pre-emption suit, trial court and first appellate court decreed the suit, but after the Repeal Act came into force, the High Court allowed the appeal and dismissed the suit, holding that if it confirmed the pre-emption decree, it would be passing a decree in a suit for pre-emption, which Section 3 prohibited. Held that the appellate court has seisin of the whole case and can take into account post-decree events; therefore, the High Court correctly allowed the appeal (Pages 606-607).
Issue of Consideration
Whether an appellate court, while considering an appeal against a decree for pre-emption after the commencement of the Punjab Pre-emption (Repeal) Act, 1973, is barred by Section 3 from confirming the decree, since an appeal is a rehearing and the appellate court would be passing a decree of its own.
Final Decision
Supreme Court dismissed the appeals, upheld the High Court's decision allowing the appeals and dismissing the pre-emption suits, and made no order as to costs.
Law Points
- Appeal is a rehearing
- appellate court can consider post-decree events
- appellate court's confirmation of a decree amounts to passing a decree of its own
- Section 3 of Punjab Pre-emption (Repeal) Act
- 1973 bars any court from passing a decree in a pre-emption suit after commencement of the Act
Case Details
1974 LawText (SC) (08) 30
Civil Appeals Nos. 941, 1123, 1572, 1666, 1667, 1760, 1780 of 1973 and 8 of 1974
Kuttyil Kurien Mathew, A.N. Ray (CJ)
1974 AIR 2068, 1975 SCR (1) 606, 1974 SCC (2) 363
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, S. C. Patel for appellants; Hardyal Hardy, 0. P. Sharma, S. K. Mehta, K. R. Nagaraja, M.Quamaruddin, Vinod Dhawan for respondents
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Nature of Litigation
Civil suit for pre-emption of sale of property; appeal against High Court order dismissing the suit after the Punjab Pre-emption (Repeal) Act, 1973 came into force.
Remedy Sought
Appellant sought from the Supreme Court to set aside the High Court's decree dismissing the suit and to restore the trial court's pre-emption decree.
Filing Reason
Appellant claimed a right to pre-empt the sale of property by her father (defendant No. 4) to defendants Nos. 1 to 3, asserting her right as a daughter; trial court and first appellate court decreed the suit, but the High Court allowed the second appeal under the subsequent Repeal Act.
Previous Decisions
Trial court decreed the suit; first appellate court dismissed the vendees' appeal on 17-07-1971; High Court allowed the appeal and dismissed the suit holding that Section 3 of Punjab Pre-emption (Repeal) Act, 1973 barred the decree; leave to file Letters Patent Appeal was dismissed.
Issues
Whether an appellate court confirming a decree for pre-emption passed by a lower court after the commencement of the Punjab Pre-emption (Repeal) Act, 1973 is 'passing a decree' and thus barred by Section 3.
Submissions/Arguments
Appellant contended that the High Court erred in applying the Repeal Act to a pending appeal and that the trial court's decree should stand.
Respondents argued that Section 3 of the Repeal Act barred any court from passing a decree in a pre-emption suit after the Act came into force, and an appellate decree confirming the trial court's decree is itself a decree.
Ratio Decidendi
An appeal is a rehearing; the appellate court has the same powers and duties as a court of original jurisdiction and can take into account facts and events that have come into existence after the decree appealed against. When an appellate court confirms a decree, it passes a decree of its own. Section 3 of the Punjab Pre-emption (Repeal) Act, 1973 bars any court from passing a decree in a suit for pre-emption after the commencement of the Act; therefore, the High Court correctly allowed the appeal and dismissed the suit.
Judgment Excerpts
An appeal is a rehearing and in moulding the relief to be granted in case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against.
Bar to pass decree in suit for pre-emption--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.
If the High Court were to confirm the decree allowing the suit for pre-emption, it would be passing a decree in a suit for pre-emption, for, when the appellate court confirms a decree, it passes a decree of its own.
Procedural History
Trial court decreed the pre-emption suit; vendees' first appeal dismissed on 17-07-1971; second appeal preferred to High Court; Punjab Pre-emption (Repeal) Act, 1973 came into force on 09-04-1973; High Court allowed the appeal and dismissed the suit; plaintiff's application for Letters Patent Appeal dismissed; appeals by special leave to Supreme Court.
Acts & Sections
- Punjab Pre-emption (Repeal) Act, 1973: Section 3
