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 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 involved were not particularly heavy, and there is no reason why the plaintiffs should have sought to avoid the further payment.....As I have already noted the cause of action remains the same whether the plaintiffs amend or not, and the suit on that cause of action was brought in time. The Court fees involved were not particularly heavy, and there is no reason why the plaintiffs should have sought to avoid the further payment.....As I have already noted the cause of action remains the same whether the plaintiffs amend or not, and the suit on that cause of action was brought in time. Plaintiffs, unless there are valid grounds for suspecting their bona fides, are entitled to have their rights under their cause of action investigated and decided, and they should not be defeated by what is a mere technicality arising from an accident." Amended plaints claiming possession by pre-emption were filed. The Subordinate Judge, after oral and documentary evidence had been produced, made decrees in the respondents favour; he found that the purchase price named in the sale deeds was not proved and fixed the market value of the land at Rs. 31,600. The Court of the Judicial Commissioner dismissed appeals in four of the suits on the ground that they were out of time, and in the cases of the other suits varied the decrees by finding that the market value was Rs. 50,000. 1920. June 7, 8. Dunne K.C. and OGorman for the appellants. Having regard to the proviso to s. 42 of the Specific Relief Act, 1877, the suits could not be maintained in their original form. When they came to trial a suit to enforce the right of pre-emption was barred by lapse of time under s. 29 of the Punjab Pre-emption Act (II. of 1905, Punj.). The respondents persisted in continuing the suits in their original form after the objection had been taken. The lower Courts had a discretionary power to refuse the applications to amend, and that discretion ought not to have been interfered with Rehmat-un-nissa v. Price. (( 1917) L. R. 45 I. A. 61.) [Reference was also made to the Court Fees Act (VII. of 1870), s. 7 (vi.), and Sch. II., cl. 17 (iii.).] If it is held that the Court of the Judicial Commissioners rightly allowed the amendments, the time to appeal in the case of the four dismissed appeals should be extended. De Gruyther K.C. and Ramsay for the respondents. Under the peculiar circumstances of the case the respondents could not ask for possession, and the original form of the plaints was correct. Sect. De Gruyther K.C. and Ramsay for the respondents. Under the peculiar circumstances of the case the respondents could not ask for possession, and the original form of the plaints was correct. Sect. 18 of the Punjab Pre-emption Act, 1905, gives a right to bring a " suit to enforce the right of preemption " ; that in terms was what the original plaints claimed. Although the pleading admitted the right, it remained to determine the market value. But if the form was incorrect the amendments were rightly allowed. The time to sue had not expired, since s. 29 is expressly subject to art. 10 of the schedule to the Limitation Act ; that article applied and under it the time had not expired. Even if it was too late to bring fresh suits the amendments were rightly allowed in the circumstances Mohummud Zahoor Ali v. Rutta Koer. (( 1867) 11 Moo. I. A. 468, 485.) The amendments did not alter the nature of the suits, and the discretion to make them was properly exercised Code of Civil Procedure, 1908 ; Order vi., r. 17 ; Kisandas Rupchand v. Rachappa Vithoba (( 1909) I.L.R. 33 B. 644.); and Sevugan Chetty v. Krishna Aiyangar. (( 1911) I. L. R. 36 M. 378.) Dunne K.C. replied. July 6. The judgment of their Lordships was delivered byr LORD BUCKMASTER. Two questions arise upon this appeal—the first, whether the Judicial Commissioner of the North-west Frontier Province was right (a) in permitting the three first respondents to amend their pleadings, and (b) in dismissing certain appeals that had been wrongly entered in his Court. The two points are distinct, but they both arise in connection with litigation set on foot by six distinct suits which have all been consolidated and dealt with as one. These suits 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 6813 kanals in the village of Tazagram. The following table will show at once the dates of the conveyances which gave rise to the rights of pre-emption and the dates and numbers of the suits brought in connection with those rights — Date of Conveyance. No. of Suit. Date of Suit. October 15, 1913 .. .. 88 of 1914 October 15, 1914 October 24, 1913 .. .. The following table will show at once the dates of the conveyances which gave rise to the rights of pre-emption and the dates and numbers of the suits brought in connection with those rights — Date of Conveyance. No. of Suit. Date of Suit. October 15, 1913 .. .. 88 of 1914 October 15, 1914 October 24, 1913 .. .. 96 of 1914 October 22, 1914 November 24, 1913 .. .. 97 of 1914 October 22, 1914 January 23, 1914 .. .. 100 of 1914 October 26, 1914 December 1, 1913 .. .. 101 of 1914 October 26, 1914 December 2, 1913 .. .. 102 of 1914 October 26, 1914 The vendees were not all the same. The first two appellants were vendees under the deed of October 24, 1913, the next three under the head of October 15, 1913, and the remaining three under the four remaining deeds. The suits so commenced all asked for a declaration of pre-emption 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 had 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 nor in receipt of the rents, for the rents had not been paid, and as to part, the plaintiffs themselves appear to claim that they were already in possession on their own account. It may, therefore, be that they regarded the peculiar conditions of the case as rendering the claim for possession inapplicable, and they possibly thought that all difficulty had been avoided by the simple process of claiming declarations of right. The defendants in their defence admitted the plaintiffs right to pre-emption, but pointed out that a mere claim to such a right was not a claim to any right to property within the meaning of s. 42 of the Specific Relief Act, and that the right of pre-emption could not be enforced by a mere declaratory decree. The defendants in their defence admitted the plaintiffs right to pre-emption, but pointed out that a mere claim to such a right was not a claim to any right to property within the meaning of s. 42 of the Specific Relief Act, and that the right of pre-emption could not be enforced by a mere declaratory decree. So far as the technical objection is concerned, it would appear to be well founded. The claim for a declaration would necessarily require to be followed by further consequential relief, if the order were to be effectual. They, therefore, could not have proceeded under s. 42 of the Specific Relief Act, nor is a claim for a bare declaration of right to pre-empt the right way of asserting the right to pre-emption ; and when the difficulties in the plaintiffs way were pointed out, it would obviously have been wiser for them to have applied at once to have their claim amended by asking the substan tive relief instead of a mere declaration that it existed. The difficulty may have been that in suits Nos. 1 and 2 more 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. The first judgment was delivered in the Court of the Subordinate Judge of Mardan on January 18, 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 June 18, 1915, supported this judgment. The Judicial Commissioner, however, on December 12, 1915, allowed the amendment to be made, and from his judgment this appeal has been brought. But for the unfortunate division of judicial opinion upon the point the present appeal would not be entertained, for the power exercised is undoubtedly one within the discretion of the judge, and all that can be urged is that his discretion was exercised upon a wrong principle, and that it ought, therefore, to be reversed. It may be that in some statements contained in the judgment of the Judicial Commissioner their Lordships would find it difficult to agree. It may be that in some statements contained in the judgment of the Judicial Commissioner their Lordships would find it difficult to agree. In a case such as the present, where the right sought is one involving the dispossession of a perfectly lawful purchaser of property, it is not, in their Lordships opinion, quite accurate to say that a plea that such a suit has not been brought within the proper period of time limited by the Act is a technical plea, if by a technical plea is meant a plea which asserts rights which have no merits for their support. But their Lordships are in full agreement with the statement made by the Judicial Commissioner that " 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." If this be so, all that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit. But if once it be accepted that they were attempting to establish 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 preemption 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 be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases see for example Mohummud Zahoor Ali v. Rutta Koer (( 1867) 11 Moo, I. A. 468, 485.), where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one. The plaints were accordingly amended, and on July 10, 1916, judgment was given by the learned Subordinate Judge, who assessed the value of the lands sold. Appeals were taken from these decrees, some to the Court of the Divisional Judge, others to the Court of the Judicial Commissioner of the North-west Frontier Province, according to value. Those lodged in the Court of the Divisional Judge were subsequently transferred to the Court of the Judicial Commissioner, who heard all the appeals together. He then decided that four of the appeals were out of time, as they ought to have been filed in the Court of the Divisional Judge and not in his Court, and he refused to return these appeals for presentation to the Divisional Judges Court in order that the latter might consider the question as to whether the time could be extended, and he himself declined to grant an extension of time. It is this order against which the appellants appeal. The reasons given by the learned Judicial Commissioner are stated by him in these words " The appeals were barred so far as the Divisional Court was concerned 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 favourable. 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 take the course suggested. Prima facie there was no good ground for the action taken in filing the appeals in this Court. These four appeals must accordingly fail." It is plain that his judgment was prompted by the desire to avoid unnecessary expense and the hope that thereby he would cause satisfaction, but the only result is that he has caused this appeal. There is no reason whatever shown for disturbing the Judicial Commissioners judgment. These four appeals must accordingly fail." It is plain that his judgment was prompted by the desire to avoid unnecessary expense and the hope that thereby he would cause satisfaction, but the only result is that he has caused this appeal. There is no reason whatever shown for disturbing the Judicial Commissioners judgment. The four appeals were in the wrong Court, and being brought on he was entitled to dismiss them. So far, therefore, as all the appeals are concerned, they fail, and their Lordships will humbly advise His Majesty that they should be dismissed with costs. The respondents have, however, instituted a cross-appeal, and this is an appeal against the valuation which has been made of the property sold. Now this Board will not interfere with any question of valuation unless it can be shown that some item has improperly been made the subject of valuation or excluded therefrom, or that there is some fundamental principle affecting the valuation which renders it unsound. On the mere question of value of admitted items their Lordships will not interfere. Now in the present instance the case lodged by the respondents complains only of the character of the valuation as a valuation and does not attempt to impeach it on any of the grounds to which reference has been made. It is quite true that counsel for the respondents, recognizing the difficulty in which he is thus placed, has attempted to raise an argument based upon an assertion that the valuation has proceeded upon an erroneous tooting. Their Lordships are not prepared to allow such a point to be now raised. If, as appears to be the case, it was not raised before the Judicial Commissioner it could not be opened now, and if it were so raised, the fact that it is not referred to in the written statement of the appellants case forms, to their Lordships minds, a good and sufficient reason why it should not be introduced at this late stage of the proceedings. For these reasons their Lordships will humbly advise His Majesty that the cross-appeal equally with the appeal should be dismissed. There will be no order as to costs.