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N.S.HEGDE, S.P.BHARUCHA, SHIVARAJ V.PATIL, V.N.KHARE, Y.K.SABHARWAL
Shyam Sunder – Appellant
Versus
Ram Kumar – Respondent
What is the effect of the substituted Section 15 introduced by the Haryana Amendment Act, 1995 on the rights of a co-sharer to pre-empt a sale during the pendency of an appeal? What are the rights of a pre-emptor regarding the maintenance of qualification from the date of sale, filing of suit, and decree of the first court? What is the retrospective or prospective operation of the substituted Section 15 in the Punjab Pre-emption Act?
Key Points: - The substituted Section 15 introduced by the Haryana Amendment Act, 1995 is prospective in operation and does not affect the substantive rights of parties accrued on the date of suit or decree (!) (!) (!) . - An appellate court is not required to take into account or give effect to the substituted Section 15 during the pendency of an appeal against a decree in a pre-emption suit (!) (!) . - A pre-emptor must prove the right to pre-empt on the date of sale, date of filing the suit, and date of passing the decree by the Court of the first instance (!) (!) (!) . - Loss of the right of pre-emption by a pre-emptor subsequent to the decree of the first court does not affect the maintainability of the suit for pre-emption (!) (!) . - Once a decree for pre-emption is passed and purchase money is deposited under Order 20 Rule 14 CPC, the right and title vest in the pre-emptor and become a vested right (!) (!) . - The amending Act is not a declaratory Act as it does not supply an omission or clear a doubt in the previous Section 15 which was precise and plain (!) (!) . - The view that an appeal being a continuation of suit allows the appellate court to consider subsequent legislative changes is limited to laws with retrospective operation (!) (!) . - The decision in Ramjilal v. Ghisa Ram is distinguished because the amending Act in that case was found to have retrospective operation, unlike the 1995 Act (!) (!) .
JUDGMENT
V.N. Khare, J.-Leave granted.
2. "What is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1995 (hereinafter referred to as the Amending Act 1995) in the parent Act i.e. The Punjab Pre-emption Act (hereinafter referred to as the parent Act) as applicable to the State of Haryana whereby the right of a co-sharer to pre-empt a sale has been taken away during the pendency of an appeal filed against a judgment of the High Court affirming the decree passed by the trial Court in a preemption suit".
3. That is the short question which we are required to answer in this group of appeals which has come on reference before us.
4. When Civil Appeal No. 4680/93 came up for hearing before a Bench of this Court, the Bench, on the question of the effect of the amendment made in 1995 in the parent Act, found that there is conflict in the view taken in the decisions of two three-Judges' Bench of this Court, which are Didar Singh etc. etc. v. Ishar Singh (dead} by LRs. etc. etc.1 (wherein it was held that in a suit for pre-emption, the pre-emptor must prove his right to preempt upto the date of decree of the first court and any loss of right or subsequent change in
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