TaxTMI 
TaxTMI 
1920 (7) TMI 1
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....s were instituted by the three first respondents claiming a declaration that they were entitled to certain rights of pre-emption against the several defendants, who were vendees of different shares and interests in some 6,813 kanals in the village of Tazagram. 2. The following table will show at once the dates of the conveyances which gave rise to the rights of pre-emption and take dates and numbers of the suits brought in connection with those rights. > Date of Conveyance. No. of Suit. Date of Suit. 15th October, 1913 .....
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....he next three under the deed of the 15th October, 1913, and the remaining three under the four remaining deeds. 4. The suits so commenced all asked for a declaration of preemption rights in respect of the respective properties to which they related, but they did not, in plain language claim possession of the property sold and the usual consequential relief. It is not easy to ascertain why this course was taken. It is true that it enabled the plaints to be stamped on a lower scale than they would have been hid they "asked for the definite assertion of the rights, but that is not an adequate explanation. The real reason "Appears to be that the title to the property was in some confusion, that' the vendees were not in actual possession ....
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....than a year had elapsed from the date of the deeds, and if, therefore, the defence was well founded they would have been met on application for leave to amend with the same objection that confronts them now. They accordingly determined to fight upon the pleadings, and with unfortunate consequences. 6. The first judgment was delivered in the Court of the Subordinate Judge of Mardan on the 18th January, 1915. He held that-the claim for a declaration of right to pre-emption and the claim for pre-emption itself were distinct, and he declined to give, leave-to amend. The Divisional Judge, on the 18th June, 1915, -supported this judgment. The Judicial Commissioner, however, on the 12th December, 1915, allowed the amendment to be made, and from....
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....lish those rights, there is no sufficient reason shown for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their intention in a plainer and less ambiguous manner. It may be noticed that in the claim the relief sought is so awkwardly set out that it would be quite open to the interpretation that they had in fact claimed pre-emption and not a declaration of the right, were it not for the fact that the plaintiffs themselves appear for foolish reasons stoutly to have maintained that that was not their object. That-there was full power to make the amendment cannot be disputed) and though such a power should not as a rule lie exercised where, its effect is to take away from a defendant a legal....
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.... at the time they were instituted in this Court, and it would be unfair to all concerned to prolong the litigation by returning the appeals with a view to obtaining a decision by the Divisional Court whether or not they should be allowed to proceed. The position involved would be little short of farcical. The appellants make an obvious mistake without any apparent excuse, and they wish to delay proceedings in this Court while a subordinate Court decides a preliminary issue, the appeals to be again transferred to this Court if the decision proves favorable. It can scarcely be contended that such proceedings would not involve an abuse of the functions of the Court, and I consider that that ground alone is ample justification for a refusal to ....