The court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against



( Before : A. N. Ray, C.J; K. K. Mathew, J )

AMARJIT KAUR — Appellant



Civil Appeal No’s. 941, 1123, 1572, 1666, 1667, 1760 and 1870 of 1973 and 8 of 1974

Decided on : 06-08-1974

Punjab Pre-emption (Repeal) Act, 1973 – Section 3
Civil Procedure Code, 1908 (CPC) – Section 9 – Bar to jurisdiction – Effect of – The statutory bar coming into force after passing of decree – The Appellate court dismissing the appeal against the decree would be confirming decree and thus it would amount to passing a decree in suit which is barred – Order setting aside decree, affirmed.

Counsel for Appearing Parties

D.V. Patel, V.C. Mahajan S.S. Khanduja, Janardhan Sharma and Ram Swarup, for the Appellant; Hardyal Hardy, O.P. Sharma, S. K. Mehta, K.R. Nagaraja and M. Quamaruddin, for the Respondent


K.K. Mathew, J.—In these appeals, a common question of law arises for consideration and this judgment will dispose of all the appeals.

2. 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 preempt, 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. 3. The Punjab Preemption (Repeal) Act, 1973 (Act II of 1973) received the assent of the Governor 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 Section 3 of the above Act should govern the decision. The plaintiff-appellant then applied for leave to file Letters Patent Appeal. That was dismissed.

3. Section 3 of the Punjab Preemption (Repeal) Act, 1973, provides:

Bar to pass decree in suit for preemption–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.

4. In Lachweshwar Prasad Shukul v. Keshwar Lal Chaudhury [1940] F.C.R. 84 it was held that once the decree passed by a court had been appealed against, the matter became subjudice again and thereafter the appellate court has session 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 CPC on courts of original jurisdiction, that even before the enactment of that Code, the position was explained by Bhashyam lyengar J. in Kristnama Chariviar v. Mangammal [1902] ILR 26 Mad. 91 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 appealed against.

5. 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 preemption. 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 preemption, it would be passing a decree in a suit for preemption, 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.

6. We therefore, dismiss the appeal but, in the circumstances, make no order as to costs.

(1974) AIR(SC) 2068 : (1974) CivAppJ(SC) 238 : (1974) PLJ 406 : (1974) 77 PLR 19 : (1974) RLR 606 : (1974) 2 SCC 363 : (1975) 1 SCJ 375 : (1975) 1 SCR 605 : (1974) 2 SCWR 298