Judgement

Consolidated Appeals and cross-appeals from two judgments and consequent decrees of the Court of the Judicial Commissioner; the first (December 23, 1915) reversing a judgment of the Divisional Judge, Peshawar, which affirmed a judgment of the Subordinate Judge, Mardan ; the second (January 26, 1917) dismissing appeals from the Subordinate Judge after a remand.

The suits giving rise to the appeals were brought by the respondents. By their respective plaints each respondent stated that his claim was " for a declaration of pre-emption right " in a share of the village Tazagram in the Peshawar district. Each plaint in fixing the value of the suit for Court fees stated that it was a " declaratory suit," and the Court fee paid in each case was Rs. 10. The appellants, who were the vendees of the properties sought to be preempted, were defendants ; the vendors, the recorded proprietors of the village, also were defendants.

The defendants pleaded (inter alia) that "a further relief— namely, for possession of land—being open to the plaintiffs, their present suit for a mere declaration cannot lie (vide Specific Relief Act, 1877, s. 42)." The plaintiffs (respondents) by their replication pleaded "the land in suit is neither in possession of the vendors nor in that of the vendees. It has been in possession of tenants paying the rent to proprietors for a long time. The plaintiffs have no further relief of possession open to them as against the defendants. The suit for declaration for-pre-emption right is, therefore, correct." The several suits were tried together.

The Subordinate Judge and, upon appeal, the Divisional Judge, Peshawar, dismissed the suit, holding that a suit for a declaration of the plaintiffs right of pre-emption, without other relief, would not lie under the Specific Relief Act, 1877, s. 42. Applications by the plaintiffs that they should be at liberty to file amended plaints claiming possession and dated as from the original presentation were rejected.

The plaintiffs in the principal suit appealed to the Court of the Judicial Commissioner, applications for revision being made in the other suits. The Judicial Commissioner allowed the appeal and revisions ; he remanded the several suits for decision upon the merits with liberty to the plaintiffs to amend their plaints by adding a claim for possession, and to antedate the plaints according to the dates of the original suits. The learned Judicial Commissioner said that the form of the suits was defective ; it was clear that the plaintiffs were in possession of less than a third of the land which they sought to pre-empt, and that they were bound to ask for possession. With regard to amending he said "Admittedly if amendment had been allowed at the time it was asked for—namely, when the case was before the Courts for final argument—the suit for possession would have been time barred. The refusal of the Courts to allow amendment thus has the consequence that the plaintiffs claim to pre-empt is extinguished for good and all. It may be said at once that such a result is entirely repugnant to equity..... The plea of limitation is in fact a technical pica. However defective the frame of the suit may be the plaintiffs object was to pre-empt the land ; their cause of action was one and the same, whether they sued for possession or not.....The grounds on which the Divisional Judge considered that amendment had been rightly refused were that there had been no inadvertence, and that to allow plaintiffs to sue for possession would be unfairly to deprive defendants of the advantage of pleading limitation. He further noted that plaintiffs were the mere puppets of a rival group of Hindu financiers, and that for this reason alone the plaintiffs were entitled to no consideration. Pre-emption is an artificial and not a natural right and may be defeated by any legitimate means. In my opinion the frame of the suit was entirely due to inadvertence and not to set purpose. The Court fees i