Allowed

(O&M) Kamla v. Pawan Kumar

Punjab & Haryana HC4 Dec 2009RSA/2042/1996

Case brief

AI extract

What is this about?

The High Court allowed the appellants' appeal in a pre-emption suit, set aside the lower appellate court's dismissal, and upheld the trial court's decree, holding that the Amending Act 1955 is prospective and does not affect rights acquired during litigation.

What did the court decide?

The judgment and decree of the Additional District Judge setting aside the suit were set aside; the judgment and decree of the Senior Sub Judge decreeing the suit were upheld.

(O&M) Kamla Vs Pawan Kumar — Specific Performance | Punjab & Haryana HC (2009)

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RSA No.2042 of 1996

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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

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R.S.A. No.2042 of 1996 (O&M) Date of Decision:December 04 , 2009

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Kamla

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...........Appellant

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Versus

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Pawan Kumar and others

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..........Respondents

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Coram: Hon'ble Mrs. Justice Sabina

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Present: Mr.Ashwani Talwar, Advocate for the appellant Mr.Surya Kant Gautam,Advocate for respondent No.1. **

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Sabina, J.

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Plaintiff filed a suit for possession by way of pre-emption. The suit of the plaintiffs was decreed by the Senior Sub Judge Panipat vide judgment and decree dated 3.2.1994. Aggrieved by the same, defendants filed an appeal and the same was allowed by the learned Additional District Judge(I) Panipat vide judgment and decree dated 29.2.1996 and the judgment and decree of the trial Court was set aside . Hence, the present appeal by the plaintiff.

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The case of the parties, as noticed by the learned Seniorl Sub Judge, in paras 2 and 3 of its judgment reads as under:-

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“ 2. In brief, the case of the plaintiff is that Manga and

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RSA No.2042 of 1996

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Smt.Natho, defendant no. 4 and 5, sold their share in the land detailed and described above to defendants No.1 to 3 for a consideration of Rs.40,000/- vide registered sale deed dated 11.7.91. According to the plaintiff, she is a co-sharer in the land detailed and described above. No notice of sale was given to her. Defendants no. 1 to 3 are totally strangers and had no share in the suit land at the time of sale whereas the plaintiff being a co-sharer in the suit land has superior right to pre-empt the sale. It has further been pleaded by the plaintiff that previously, one Nekhi son of Hardwari Lal was a co-sharer in the suit land to the extent of 16/52 share. The plaintiff purchased the land from him on 15.7.1980 through a registered sale deed and thus, became a cosharer in the land in dispute. Thus, according to the plaintiff, she being a co-sharer has a superior right to pre-empt the sale. Inspite of having requested, the defendants have refused to accept the claim of the plaintiff and have refused to deliver the possession of the suit land to her on receipt of Rs.40,000/-. Hence, this suit. 3.In the written statement filed by the defendants, it has been averred that the plaintiff is not a co-sharer in the suit land and has no right, title or interest in the suit property, therefore, she has no superior right to pre-empt the sale. In these circumstances, it has been prayed that the suit of the plaintiff be dismissed. A number of preliminary objections have also been taken, such as, the plaintiff has no right, or interest in the suit property, the suit is bad for misjoinder and non-joinder of necessary parties, the suit is not maintainable in the present form and the plaintiff has no locus

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RSA No.2042 of 1996

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standi to file the present suit. It has further been averred by the defendants that the father of defendants no. 1 to 2 is a tenant on the suit land. In these circumstances, the plaintiff has no superior right to pre-empt the sale.”

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On the pleadings of the parties, the following issues were framed by the trial Court:-

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“1.Whether the plaintiff has superior right of pre-emption?OPP

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2.Whether the plaintiff has no locus standi ?OPD

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3.Whether the plaintiff has no right or interest in suit property?OPD

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4.Whether the suit is bad for misjoinder and non-joinder of necessary parties?OPD

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5.Whether the suit is not maintainable?OPD

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Relief.”

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After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed.

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Plaintiff-appellant had filed a suit for possession by way of pre-emption. The case of the plaintiff was that on the day sale deed dated 11.6.1991 was executed by Manga and Matho, defendants No. 4 and 5, they sold their share in the suit land to defendants No. 1 to 3. The question that requires consideration is as to whether the plaintiff was a co-sharer on the date of sale and till the suit filed by her was decided. There is no force in the argument raised by the learned counsel for the respondents that on the day of sale, the plaintiff was no longer a co-sharer in the suit property as the property in question had already been partitioned. However, admittedly, the plaintiff was not a party in the partition proceedings. In these

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RSA No.2042 of 1996

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circumstances, the learned trial Court had rightly held that the partition proceedings, if any, are not binding on the plaintiff. Plaintiff had purchased share out of the suit property vide sale deed dated 15.7.1980. Mutation qua the sale in favour of the plaintiff by Neki was sanctioned on 15.2.1989. Hence, the plaintiff was rightly held to be a co-sharer in the suit property by the learned trial Court and it was rightly held that she had superior rights to pre-empt the sale.

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The learned Additional District Judge, while allowing the appeal filed by the defendants, held that since the Amending Act had come into force that co-sharer will no longer pre-empt a sale, dismissed the suit of the plaintiff. Initially, Punjab Pre-emption Act was applicable to the State of Haryana. Section 15 was introduced by the Haryana Amendment Act, 1955. The same reads as under:-

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"Section 15 of the Amending Act, whereby right of a cosharer to pre empt a sale was taken away, reads as under:-

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“ Right of pre-emption to vest in tenant- The right of preemption in respect of sale of agricultural land and village immovable property shall vest in tenant who holds under tenancy of the vendor or vendors of the land or property sold or a part thereof.”

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The substantial question of law that arises in this case is as to what is the effect of substituted Section 15 introduced by the Haryana Amendment Act, 1955 (hereinafter referred to as 'the Amending Act') in the parent Act i.e. Punjab Pre-emption Act (hereinafter referred to as 'the parent Act) as applicable to the State of Haryana with regard to the right of a co-

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RSA No.2042 of 1996

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sharer to pre- empt a sale during the pendency of an appeal after the suit of the co-sharer to pre- empt a sale has been decreed.

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The controversy involved in this case is no longer resintegra. The

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Apex Court in Shyam Sunder and another v. Ram Kumar and another 2001 (SC) 2472 has held that the Amending Act being prospective in operation does not effect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the Appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the Amending Act. The relevant paras of the aforesaid judgment are reproduced herein as under:-

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“11. An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerges are these:

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The pre-emptor must have the right to pre-empt the sale on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.

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The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for preemption must fall.

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A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to

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RSA No.2042 of 1996

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the decree of the first Court would not affect his right or maintainability of the suit for pre-emption.

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A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.

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14.The legal position that emerges on review of the second category of decisions is that the appeal being continuation of suit the appellate court is required to give effect to any change in law which has retrospective effect.

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During the course of argument, a half-hearted argument was raised that a substituted Section in an Act introduced by an amending Act is to be treated having retroactive operation. According to the learned counsel for the appellant, the function of a substituted section in an Act is to obliterate the rights of the parties as if they never existed. This argument is noted only to be rejected. A substituted section in an Act is the product of an amending Act and all the effects and consequence that follow in the case of an amending Act the same would also follow in the case of a substituted Section in

RSA No.2042 of 1996

an Act.

Coming to the next question, learned counsel for the appellants after characterising the right of preemption as archaic and feudal, argued that substituted Section 15 being a beneficial legislation enacted for general benefit of citizens, this Court while construing it, is required to apply rule of benevolent construction and on application of the said rule of construction the substituted Section 15 has to be given retroactive operation. Generally rules of interpretations are meant to assist the Court in advancing the ends of justice. It is,therefore, true in the case of application of rule of benevolent construction also. If on application of ruleof benevolent construction, the Court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied in the present case. But there are limitations on the powers of the Court, in a sense that Courts in certain situations often refrain themselves to apply rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. One of the situations is, when the Court finds that by application of rule of benevolent construction it would be relegislating a provision of statute either by substituting,

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RSA No.2042 of 1996

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adding or altering the words used in the provision of the Act. In such a situation, generally Courts have refrained themselves to apply rule of benevolent construction. Under the cover of application of rule of benevolent construction a Court is not entitled to re-legislate a provision of the Act so construed. The second situation is when the words used in a stature is capable of only one meaning. In such a situation, the Courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the Courts are not precluded to apply such rule of construction. The third situation is when there is no ambiguity in a provision of a statute so construed. If the provision of a statute is plain, unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application. However, if it is found that there is a doubt in regard to meaning of a provision or word used in provisions of an enactment it is permissible for court to apply the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction has been applied while construing welfare legislations or provisions relating to relationship between weaker and stronger contracting

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parties. Assuming that the amending Act is for general good of people, we do not find the presence of the aforestated situations which may call for application of such rule while constructing substituted Section 15 introduced by the amending Act. A reading of substituted Section 15 would show that the words used therein are plain and simple and there is no ambiguity in it. The words used in the Section do not give rise to more than one meaning. Further, we do not find that amending Act either expressly or by necessary implication is retrospective. If we hold that the amending Act is retrospective in operation, we would be re-legislating the enactment by adding words which are to be found in the amending Act either expressly or by necessary intendment and it would amount doing violence with the spirit of the amending Act. For these reasons, the application of rule of benevolent construction is wholly inapplicable while construing substituted Section 15.

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Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore,has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or explain previous

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statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed invariably it has been held to be retrospective. Mere absence of use of word 'declaration' in an Act explaining what was the law before may not appear to be a declaratory Act but if the Courts finds an Act as declaratory or explanatory it has to be construed as retrospective. Conversely where a statute uses the word ' declaratory' the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.

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From the aforesaid decisions, the legal principle that emerges is that the function of a declaratory or explanatory Act is to supply an obvious omission or to clear up doubts as to meaning of the previous Act and such an Act comes into effect from the date of passing of the previous Act. Learned counsel for the appellants strongly relied upon a decision of two-Judges Bench of this Court Mithilesh Kumari and another v. Prem Behari Khare, 1989 (2) SCC 95 in support of his argument. In the said decision, it was held by this Court that the Benami Transactions (Prohibition) Act,1988 being a declaratory Act, the provision of Section4 of the

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Act has retroactive operation. The reliance onthis decision by the appellants' counsel is totally misplaced as this decision was overruled in R.Raja Gopal Reddy

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v. Padmini Chandrasekharan (supra) wherein it was held that, the Act was not passed to clear any doubt existed as to the common law or the meaning of effect of any statute and it was, therefore, not a declaratory Act.

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We have already quoted substituted Section 15 of the amending Act but do not find that the amending Act either expressly or by necessary implication intended to supply an omission or to clear up a doubt as to the meaning of previous Section 15 of the parent Act. The previous Section 15 of the parent Act was precise, plain and simple. There was no ambiguity in it. The meaning of the words used in Section 15 of the parent Act was never in doubt and there was no omission in its phraseology which was required to be supplied by the amending Act. Moreover, the amending Act either expressly or by implication was not intended to be retroactive and for that reason we hold that the amending Act 10 of 1995 is not a declaratory Act and, therefore, it has no retrospective operation.

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For the aforestated reasons, we approve the view of law taken in Didar Singh etc. v. Ishar Singh (dead) by Lrs. etc. (supra) and further hold that the decision inthe

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RSA No.2042 of 1996

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case of Ramjilal v. Ghisa Ram (supra) does not lay down the correct view of law.

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The result of the aforesaid discussion is that the amending Act being prospective in operation does not affect the rights of the parties to the litigation on the date of adjudication of the pre-emption suit and the appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the amending Act.”

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Before the Appellate Court, there was nothing to suggest that the plaintiff had ceased to be a co-sharer. Since vide the decision of a Bench of five Judges in Shyam Sunder's case (supra) in order to resolve conflict between the decisions rendered by two different Benches, it has been held that the Amending Act is prospective in operation and will not effect rights of the parties in litigation on the date of adjudication of pre-emption suit and the appellate Court is not required to take into account or give effect to the substituted Section 15 introduced by the Amending Act, the present appeal deserves to be allowed.

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Accordingly, this appeal is allowed and the judgment and decree of the learned Additional District Judge, Panipat whereby the suit of the plaintiff was dismissed are set aside and the judgment and decree of the Senior Sub Judge Panipat dated 3.2.1994, whereby the suit of the plaintiff was decreed, are upheld.

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( Sabina ) Judge

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December 04 , 2009 arya

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RSA No.2042 of 1996 13

(O&M) Kamla v. Pawan Kumar

Case brief

What is this about?

What did the court decide?

(O&M) Kamla v. Pawan Kumar

Case brief

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What did the court decide?

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