P L D 1996 Supreme Court (AJ&K) 25 (PLP)

SARDAR SAID MUHAMMAD KHAN, C J.

This appeal has been directed against the judgment of the High Court dated 24-5-1995 whereby the appeal filed by the appellant, herein, dismissed. The brief facts giving rise to the present appeal are that suit land measuring 5 Kanals, situate in All Sojal, Tehsil Rawalakot, was transferred by one Muhammad Hussain in favour of Muhammad Bashir respondent No.2 through a registered sale-deed on 27-6-1989. A suit for possession on the basis of right of prior purchase was filed by the appellant, herein, in the Court of Additional Sub-Judge, Rawalakot in the year 1990. On March 29, 1993 section 14 of the Right of Prior Purchase Act was amended whereby the grounds on which the rights of prior purchase were exercisable were substituted The pre-emption suit filed by the appellant was pending in the Court of Additional Sub-Judge when said amendment was made. The suit filed by the plaintiff-appellant was dismissed because the ground on which the right of pre-emption was exercised was no more available after the amendment of section 14 of the Prior Purchase Act. Appeals filed before the District Judge, Rawalakot and the High Court were also dismissed. We have heard the arguments advanced at the Bar. The identical matter came up for consideration before the Full Court in case reported as Fazal Dad v. Khadim Hussain and another 1995 MLD 1299 wherein it has been held that amendment of section 14 in the Right of Prior Purchase Act by substitution amounts to `repeal' of previous law within the meaning of section 6 of General Clauses Act and thus the pending suits would not be adversely affected. It was further observed that legislature can bring an end to pending proceedings and can take away the rights which were previously available but if it is not done the pending proceedings would continue according to the provisions of repealed statute. In another unreported case of this Court entitled Muhammad Hafeez Khan v. Mst. Sabiha Khanam (Civil Appeal No. 42 of 1995, decided on 4-11-1995), it has been observed that it is not necessary for the application of section 6 of the General Clauses Act that `repeal' of the statute or any provision thereof should have been expressly made; such a repeal can take effect by necessary implication, i.e. by subsequent legislation on the same subject which tantamounts to supersede the earlier legislation. If by necessary implication an earlier statute or any provision thereof is superseded or substituted, the case would be one of `repeal' as envisaged under section 6 of the General Clauses Act. In case reported as State of Orissa v. M/s. MA. Tulloch & Co. AIR 1964 SC 1284, it has been held that a statute which supersedes the previous law virtually repeals the same. It was further observed that when an enactment supersedes earlier one or puts an end to an earlier state of law, it would tantamount to repeal of earlier statute unless there are indications to the contrary. It has been also observed that if the effect of super session of previous enactment is repeal, the provisions contained in section 6 of General Clauses Act would apply even if the word `repeal' has not been expressly used. In case reported as Idrees Ahmad v. Haji Fida Ahmad Khan PLD 1985 SC 376 it has been held that the right of appeal given under a repealed enactment is such a right which survives the repeal unless repealing enactment either expressly or by necessary implication curtails it. It has been further observed that all the rights or remedy by way of appeal or otherwise under an enactment stand vested and accrued in the litigating party on the date of commencement of the lis and are not open to challenge unless the repealing enactment either expressly or by necessary implication curtails such rights in any manner. In Mahabir Sugar Mills Pvt. Ltd. v. The Union of India (AIR 1975 All. 239), it has been observed that where there is repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow. It has been observed that n case of simple repeal, there would be hardly any room for a view contrary to one contained in section 6 of the General Clauses Act but when repeal is followed by afresh legislation on the same subject then the provisions of new Act may be considered for the purpose of determining as to whether a different intention from one contained in section 6 of the General Clauses Act is indicated. The application of the rule incorporated in section 6 can be ruled out only if there is intention incompatible-with or contrary to the provision contained in section 6 of the General Clauses Act. In case reported as State of Punjab v. Mohar Singh Pratap Singh AIR 1955 SC 84, it has been observed that in case of simple repeal, there is hardly any room for the argument that section 6 of the General Clauses Act is not applicable to such a case. However, in case where repeal is followed by the fresh legislation on the same subject, the Courts would undoubtedly have to look into the provision of new Act only for the purposes of determining whether they indicate a different intention. The line of inquiry would be not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy the old rights. Thus, section 6 of the General Clauses Act would be applicable despite the new Legislation if an intention incompatible with or contrary to the provisions of section 6 is not manifest. It is evident from the authorities cited above that the pending pre emption suits could not be dismissed as a result of the amendment is section 14 of the Right of Prior Purchase Act. In the light of what has been stated above, we accept the appeal, set aside the judgments and decrees of the Courts below and remand the case to the trial Court to proceed with the trial of the suit according to law. No order is made as to the costs. A.A./100/SCAJ&K Appeal accepted.