Amarjit Kaur Vs. Pritam Singh &
Ors  INSC 132 (6 August 1974)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
RAY, A.N. (CJ)
CITATION: 1974 AIR 2068 1975 SCR (1) 606 1974
SCC (2) 363
CITATOR INFO :
R 1975 SC2299 (232,607) R 1977 SC2090 (1) R
1980 SC1654 (2) R 1985 SC 111 (9) F 1989 SC1247 (24) RF 1991 SC1654 (42,44)
Practice and Procedure--Nature of appeal--How
Court can take into account matters which
have come into existence after the passing of the decree appealed against.
Section 3 of the Punjab Pre-emption (Repeal)
which came into force in April 1973, provides
that don and from the date of the commencement of the Act, no court shall pass
a decree in any pre-emption suit.
The 4th defendant sold his property to
defendants 1 to1965 and the Plaintiff filed a suit claiming a right to
The trial court and first appellate court
held in plaintiffs favour. A second appeal to the High Court by that time the
Act had come into force and the High Court the decision.
Dismissing the appeal to this Court,
HELD : 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. 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, and therefore, the High Court
was right in allowing the appeal. [606D-F] Lachweshwar Prasad Shukul v. Keshwar
Lal Chaudhury,  F.C.R. 84 Kristnama Chariviar v. Mangammal,  1. L.
26 Med. 91, at PP. 95-96, referred to.,
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 941, 1123, 1572, 1666, 1667, 1760, 1780 of 1973 and 8 of 1974.
Appeals by. special leave from the judgment
and order dated 22nd May/31st August, 22nd May/20th September/17th August/ 17th
September, 1973 of the Punjab & Haryana High Court in R. S. As. Nos.
1095/71, 271/69, 11/68, 879/70, 899/11, 2015/70 and 1137 of 1973 respectively.
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 and S. C. Patel for
Hardyal Hardy, 0. P. Sharma, S. K. Mehta, K.
R. Nagaraja, M.Quamaruddin and Vinod Dhawan for respondents.
The Judgment of the Court was delivered by
MATHEW, J.-In these appeals, a common question of law arises for consideration
and this judgment will dispose of all the appeals.
We will take up for consideration Civil
Appeal No. 941 (N) of 1973. The appellant challenges the correctness of a
decree passed by the High Court dismissing a suit for pre- emption. The plaint
property belonged to defendant No. 4.
He sold the same to defendants Nos. 1 to 3 by
a sale deed dated July 29, 1965 and registered on October 14, 1965. The
appellant who is the daughter of defendant No. 4 claiming that she has right to
pre-empt, instituted the suit through her guardian. The trial court decreed the
suit. Against the decree, an appeal was preferred by the vandees. That appeal
was dismissed on July 17, 1971. An appeal was preferred to the High Court
against this decree.
606 The Punjab Pre-emption (Repeal) Act, 1973
(Act 11 of 1973) received the assent of the Gavernor of Punjab on April 6, 1973
and was published in the Punjab Gazette on April 9, 1973. The High Court
allowed the appeal and dismissed the suit holding that the provision of s. 3 of
the above Act should govern the decision. The plaintiff appellant then applied
for leave to file Letters Patent Appeal. That was dismissed.
Section 3 of the Punjab Pre-emption (Repeal)
Act, 1973, provides:
"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".' The section, in effect, says that no court shall decree a
suit for preemption after the coming into force of the Act.
The question is, whether the appellate court,
when it passes a decree, confirming the decree for pre--emption passed by the
trial court or the lower appellate court, is passing a decree for pre-emption.
In Lachweshwar Prasad Shukul v. Keshwar Lal
Chaudhury (1) it was held that once the decree passed by a court had been
appealed against, the matter became sub-judice again and thereafter the
appellate court has seisin of the whole case, though for certain purposes,
e.g., execution, the decree was regarded as final and the courts below retained
jurisdiction. The Court further said that it has been a principle of
legislation in British India at least from 1861 that a court of appeal shall
have the same powers and shall perform as nearly as may be the same duties as
are conferred and imposed by the Civil Procedure Code on courts of original
jurisdiction, that even before the enactment of that Code, the position was
explained by Bhashyam Iyengar J.
in Kristnama Chariviar v. Mangammal(2) in
language which makes it clear that the hearing of an appeal is under processual
law of this country in the nature of a re- hearing, and that it is on the
theory of an appeal being in the nature of a re-hearing that the courts in this
country have in numerous cases recognized that in moulding the relief to be
granted in a case on appeal, the court of appeal is entitled to take into
account even facts and events which have come into existence after the decree
As an appeal is a re-hearing, it would follow
that if the High Court were to dismiss the appeal, it would be passing a decree
in a suit for pre-emption. Therefore, the only course open to the High Court
was to allow the appeal and that is what the High Court has done. In other
words, 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, and
therefore, the High Court was right in,-allowing the appeal.
We, therefore, dismiss the appeal but, in the
circumstances,' make no order as to costs.
V. P. S. Appeal dismissed.
(1)  F.C.R. 84.
(2)  I.L.R. 26 Mad. 91, at pp. 95-96.