CM No.11460-C of 2010 in/and -1- RSA No.1318 of 1996 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.11460-C of 2010 in/and RSA No.1318 of 1996 (O&M) Date of decision:22.12.2010. Ranpat and another ...Appellants Versus Naresh Kumar and others ...Respondents CORAM: HON’B LE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Anil Ghanghas, Advocate, for Mr. Sunil Panwar, Advocate, for the applicants/appellants. Mr. Mani Ram Verma, Advocate, and Mr. Nipun Verma, Advocate, for non-applicants/respondents. ***** RAKESH KUMAR JAIN, J. The applicants/appellants have filed the present application under Section 151 of the Code of Civil Procedure, 1908 [for short “CPC”] for disposal of the main appeal in terms of the judgment rendered by the Supreme Court in the case of Shyam Sunder and another Vs. Ram Kumar and another, 2001(3) R.C.R. (Civil) 754 on the ground that right of co-sharer/appellant to pre-empt the sale in favour of the respondents would subsist till the passing of the decree by the First Court and would not be affected with the repeal of the right of pre-emption of the co-sharer by virtue of the Punjab Pre-emption (Haryana Amendment) Act, 1995 [for short “Amending Act of 1995”]. Notice in the application was issued to which reply has been filed today in the Court, which is taken on record. Undisputedly, the ultimate decision of the present application is CM No.11460-C of 2010 in/and -2- RSA No.1318 of 1996 (O&M) going to affect merits of the main appeal and hence, the facts from the main appeal are being extracted as under: Plaintiffs filed a suit for possession by way of pre-emption under the Punjab Pre-emption Act, 1913 [for short “the Act”] to pre-empt the sale deed dated 27.12.1991 purported to have been executed by defendant No.4 in favour of defendant Nos.1 to 3 for a sum of `50,000/- by claiming a superior right of pre-emption being a co-sharer with the vendor. The suit was filed on 12.12.1992 which was admittedly decreed on 25.05.1995. The vendees assailed the validity of the judgment and decree of the learned Trial Court by way of appeal which was allowed by the First Appellate Court vide its judgment and decree dated 15.01.1996 on the ground that right of pre-emption of a co-sharer has been abolished by coming into force of the Amending Act of 1995. Aggrieved from the judgment and decree of the learned First Appellate Court, the present appeal was filed in which a plea was taken that the amendment is not retrospective in nature and would not affect a decree which has already been passed by the learned Trial Court. The appeal was admitted on 26.07.1996 with the following order: - “Admitted. Awaiting the decision by the Supreme Court on the issue of application of the Act amending the Pre-emption Act.” While this appeal was pending, the issue of applicability of the Amending Act of 1995 was considered by the Supreme Court in the case of Shyam Sunder and another (supra) and it is decided that the view taken in Didar Singh etc. Vs. Ishar Singh (dead) by LRs. etc., 1994(1) Scale 1 is correct and the view taken in Ramjilal and others Vs. Ghisa Ram etc., 1996 (2) RCR(Civil) 456 (SC) was not approved. In nut shell, it was held that the Amending Act of 1995 is not a declaratory Act and this has no retrospective operation. It was further held that any decree passed by the Court of the first instance shall enure if it is so passed by the Court before coming into force of the Amending Act of 1995. Thus, the question which is to be considered by this Court is as to “whether the decree passed by the learned Trial Court was CM No.11460-C of 2010 in/and -3- RSA No.1318 of 1996 (O&M) passed before coming into force of the Amending Act of 1995 or it is thereafter?” Although learned counsel for the applicants/appellants has not mentioned the date of enforcement of the Amending Act of 1995, yet learned counsel for the respondents has brought to the notice of this Court the notification dated 07.05.1995 published in the Haryana Government Gazette, according to which Amending Act of 1995 received consent of the Governor of Haryana on 04.05.1995 and was published on 07.05.1995 by way of notification in the Haryana Government Gazette. Meaning thereby the Amending Act of 1995 had come into force before passing of the decree by the learned Trial Court, i.e. 25.05.1995. Therefore, the said decree cannot be enured because it is well settled that the pre-emptor has to maintain his right of pre-emption at all the three stages, i.e. at the time of sale, at the time of filing of suit and at the time of decree. In the present case, the present appellants have failed to maintain their right of pre-emption at the time of decree because the decree was passed on 25.05.1995, whereas the right of a co-sharer was abolished by the Amending Act of 1995 before that date and at the time when the decree was passed, right of the present appellants to pre- empt the sale deed was not in existence. In view of the above, while disposing of the present application, I do not find any question of law much-less substantial involved in the main appeal as envisaged under Section 100 of the CPC and as such, the appeal is also hereby dismissed with costs. December 22, 2010. (RAKESH KUMAR JAIN) vinod* JUDGE