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PETITIONER: AMARJIT KAUR

       Vs.

RESPONDENT: PRITAM SINGH & OTHERS

DATE OF JUDGMENT06/08/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: 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)

ACT: Practice and Procedure--Nature of appeal--How far appellate. Court  can  take into account matters which have  come  into existence after the passing of the decree appealed against.

HEADNOTE: Section  3  of the Punjab Pre-emption  (Repeal)  Act,  1973. 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 pre-empt. 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,  [1940] F.C.R. 84 Kristnama Chariviar v. Mangammal, [1902] 1. L.  R. 26 Med. 91, at PP. 95-96, referred to.,

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 941, 1123,

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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 appellants. 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-

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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 appealed against. 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)  [1940] F.C.R. 84. (2)  [1902] I.L.R. 26 Mad. 91, at pp. 95-96. 607