Suit No. 3219 of 1984

23rd November, 1992

Petitioner Counsel: Y. H. Muchhala, R. K. Sarguroh, Bhargavram
Respondent Counsel: Y. E. Mooman

JUDGMENT

ORDER :- In the month of December, 1984, the plaintiffs have filed this suit for administration of the estate of one Haji Fatehulla Khan son of Talib Khan who died intestate at Fatehpur (U.P.) on 16th December, 1976. Originally this suit was filed in the City Civil Court at Bombay. However, the plaint was ordered to be returned to the plaintiffs by the City Civil Court for presentation to proper Court. Thereafter, the plaintiffs lodged the plaint in this Court and filed this suit without obtaining leave under clause XII of the Letters Patent, when such leave ought to have been obtained prior to lodging of the plaint in this Court. The plaintiffs now seek to obtain leave under clause XII of the Letters Patent to file the suit in this Court and have applied for condonation of delay in filing the petition for leave under clause XII of the Letters Patent.

2. In para 11 of the plaint filed in the suit, the plaintiffs have averred as follows :

"The plaintiffs say that the deceased died at Bombay; the properties mentioned in Exh. A are in Bombay as well as at Fatehpur. The defendant No. 1 has appropriated the profits to herself at Bombay. The material part of the cause of action has arisen in Bombay. The plaintiffs submit that this Hon'ble Court has therefore jurisdiction to entertain and try this suit."

In para 25 of the Written Statement filed in the suit on 26th November, 1985, the 1st defendant has stated as under :

"With reference to para 11 of the plaint, this defendant denies that the said deceased died at Bombay and that she has appropriated the profits at Bombay or at Fatehpur, U.P. and that the cause of action arose at Bombay and that this Hon'ble Court has jurisdiction to entertain and try this suit. The defendant says and submits that the said deceased died at Fatehpur, U.P. on 16th December, 1976, hence the cause of action has arisen to the plaintiffs at Bombay and this Hon'ble Court has no jurisdiction to entertain and try the present suit and, therefore, the suit is liable to be dismissed with costs."

Before Dhanuka, J. when the suit reached for hearing and final disposal on 28th September, 1992, the learned counsel appearing for plaintiffs has conceded at the bar that the said Haji Fatehullah Khan died at Fatehpur in Uttar Pradesh and not at Bombay. The properties mentioned in Exhibit 'A' to the plaint are in Bombay as well as in Fatehpur. Though 1st defendant was residing in Bombay, the defendants Nos. 2, 3 and 4 have been residing in Uttar Pradesh at the time of institution of the suit in this Court. Even if the suit for administration of estate is not to be considered as a suit for land, in the facts of the case, leave under clause XII of the Letters Patent was necessarily required to be obtained before this Court could receive the plaint since on the admission of the plaintiffs themselves only a part of cause of action had arisen in Bombay. As the suit- has been filed without obtaining such leave, the question that arises for consideration is, whether, in the facts of the case. leave under clause XII of the Letters Patent can now be granted to the plaintiffs.

3. Mr. Muchhala, the learned counsel appearing for plaintiffs, has submitted that the jurisdiction to grant leave under clause XII of the Letters Patent to a plaint presented prior thereto in point of time exists in law. He has further submitted that prior to. grant of leave under Clause XII, the suit can be instituted for the purpose of the Limitation Act though no further steps can be taken therein. He has also submitted that in the facts of the case, the delay caused in making application for grant of leave under clause XII be condoned to do substantive justice between the parties. In support of his submissions, Mr. Muchhala has relied upon the case of Lakshmi Commercial Bank Ltd. vs. Bengal National Textiles Mills Ltd. and others reported in AIR 1992 Cal. 278. Mr. Mooman, the learned Advocate for 1st defendant, has submitted that in the facts of the case, leave under clause XII of the Letters Patent was required to be obtained prior to institution of the suit and since admittedly the requisite leave was not obtained by the plaintiffs, this Court did not acquire any jurisdiction to receive the plaint and/or try and determine the suit as such leave affords the very foundation of the jurisdiction. He has further submitted that since in want of requisite leave the Court was not empowered to receive the plaint, the admission of plaint, was per se withoutjurisdiction and the plaint is liable to be returned to the plaintiffs. He has also submitted that in the facts of the case, no question of condonation of delay and/or now granting leave to the plaintiffs as sought arises. In support of his submissions, Mr. Mooman has relied upon the case of Rhoda Jal Mehta and others vs. Homi Framroze Mehta and others reported in 1989 Mh.L.J. 124.

4. Clause XII of the Letters Patent as applicable to this Court provides that this Court in exercise of its Ordinary Original Civil Jurisdiction shall be empowered to receive, try and determine suits of every description if in the case of suits for land (omitting unnecessary words) the land is situate, or in all other cases, if the cause of action shall have arisen either wholly or in the case of the leave of the Court shall have been first obtained, in part. Within the local limits of the Ordinary Original Civil Jurisdiction of this Court (emphasis supplied). The words "empowered to receive" mean that the Court on the Ordinary Original Civil Jurisdiction has no jurisdiction even to receive a plaint where a part of the cause of action only shall have arisen within the local limits of its jurisdiction unless leave of the Court shall have been first obtained. The leave under clause XII of the Letters Patent is a condition precedent to jurisdiction, so that unless the condition is fulfilled by obtaining the necessary leave to sue, the Court will have no jurisdiction to entertain the suit. Such leave affords the very foundation of the jurisdiction and hence, it must be obtained before the institution of the suit. It cannot be granted after the suit has been instituted.

5. In the case of Lakshmi Commercial Bank Ltd. (supra), the suit was originally presented, in the year 1984 without first obtaining leave under clause XII of the Letters Patent. After eight years, the said leave was sought for the purpose of regularising the suit. On behalf of the first defendant in that suit, reliance was placed upon the case of Kshitish Kumar Som vs. State of Bihar reported in AIR 1953 Cal. 639 wherein Sinha, J. laid down the following five propositions with regard to grant of leave under clause XII :

"1. Where leave under clause 12 of the Letters Patent is necessary the granting of such leave is the condition precedent to the Court having jurisdiction to entertain the suit.

2. Therefore, such leave is to be obtained at the time of the institution of the suit. In the Original Side of this High Court, the practice is to present the plaint before the Master who places it before a Judge of this Court for granting the requisite leave. It does not mean, however, that such leave is granted after the institution of the suit. For the purpose of limitation the date of the presentation of the plaint may be relevant but the leave when granted is nevertheless leave granted prior to the institution of the suit.

3. Whereby amendment of a plaint, a cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In such a case no amendment can be ordered if it requires leave to be granted under clause 12 of the Letters Patent at the time of the amendment.

4. It follows that leave under clause 12 of the Letters Patent cannot be granted in such a case, at any stage after the institution of the original suit.

5. But where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date when he was so added. Consequently, if the cause of action against the added party requires leave under clause 12 of the Letters Patent it is open to the Court to grant such leave, if asked for at the time of the amendment. In fact, if such leave has not been asked for or obtained in such cases, the Court has no jurisdiction to entertain the suit against such an added defendant."

Ajoy Nath Ray, J. of Calcutta High Court interpreted the aforesaid second proposition as contemplating the possibility of a suit being instituted on a particular date for the purpose of limitation and the suit being receivable by that Court on another date, the same being subsequent to grant of leave under clause XII and has held that the jurisdiction to grant leave under clause XII to a plaint presented prior thereto in point of time exists in law.

6. In the case of Rhoda Jal Mehta and others (supra), the plaintiff filed the suit without obtaining leave under clause XII of the Letters Patent when admittedly such leave ought to have been obtained prior to the lodging of the plaint and sought an order that the plaint be returned to them for presentation in a proper Court, and if the presentation was to the very Court, to present it after obtaining the necessary leave under clause XII of the Letters Patent. On behalf of the defendants therein, it was submitted that the plaint could not be returned for being presented in a proper Court but the suit was required to be dismissed. Reliance on behalf of the defendants therein was placed on unreported judgment of Mridul, J. dated 8th December, 1976 in Suit No. 130 of 1977. Shiv Silk Mills vs. D. M. Khanna wherein accepting the arguments advanced on behalf of defendant therein it has been held that the question of leave under clause XII of the Letters Patent was not a question relating to jurisdiction but that it was only a question of the plaintiffs obtaining a prior permission and if no such permission was obtained, the proceedings would become a nullity and on that basis the suit was to be dismissed. However, on behalf of the plaintiffs therein, reliance was placed on the judgment of Division Bench of this Court in the case of Devidutt Ramniranjandas vs. Shriram Narayandas reported in 34 BLR 236 where in terms it has been held that the question of obtaining leave under clause XII of the Letters Patent and the lodging of a plaint without such leave is one relating to jurisdiction. Suresh, J. (as he then was) held that when without the leave under clause XII of the Letters Patent, where such leave is necessary, the Court is not 'empowered to receive' the plaint, the Court must necessarily return the same to the person who has tendered it. The Court cannot keep it on its record since admission thereof is per se without jurisdiction.

7. The practice once evolved by the Office of the Prothonotary and Senior Master of this Court to the effect that if a plaint is lodged without obtaining leave under clause XII of the Letters Patent where such leave was required and if the same is not numbered, the plaint would be returned to the plaintiff for presenting the same after obtaining leave, was considered by Sawant, J. of this Court (as he then was) in the case of Union Bank of India vs. Sunpac Corporation and others reported in 1986 Mh.L.J. 237and on such consideration, he directed that in such circumstances, it is not necessary to return the plaint, but only required the plaintiff to obtain leave under Clause XII of the Letters Patent and admit the suit thereafter. This decision in the case of Union Bank of India was considered by Suresh, J. in the case of Rhoda Jal Mehta and others (supra) and it has been rightly held that there is no difference between "lodging" of a plaint and "admitting" a suit, in so far as it has any relation to the "powers" of the Court. It has been further justifiably held "while the date of "lodging" may be relevant for the purpose of limitation, admission and numbering of a suit becomes relevant for the purpose of issue of further process of the Court. In either case these provisions do not circumscribe the "power" of the Court. If I am not empowered to receive a plaint, before or after admission of a suit, it should not make any difference, as I cannot deal with such a suit at all."

Even Ajoy Nath Ray, J. of Calcutta High Court in the said case of Lakshmi Commercial Bank Ltd. (supra) has in principle accepted that the suit cannot be treated to have been received by the Court for any purpose before the Court proceeds to grant leave under clause XII of the Letters Patent though while interpreting the aforesaid second proposition laid down by Sinha, J. in the said case of Kshitish Kumar Som vs. State of Bihar (supra), with which I do not agree, as held that prior to grant of such leave the suit might be instituted for the purpose of the Limitation Act.

8. Interpreting clause XII of the Letters Patent as exists, in my view, obtaining leave thereunder is a condition precedent to entertaining by this Court of a suit in which the cause of action has arisen, in part, outside the jurisdiction of this Court and this condition is not the one which this Court can ignore or for that purpose waive. While being in agreement with the view taken by Suresh, J. in the case of Rhoda Jal Mehta and others (supra) and disagreeing with the view taken by Ajoy Nath Ray, J. of Calcutta High Court in the case of Lakshmi Commercial Bank Ltd. (supra) I hold that leave under clause XII of the Letters Patent as sought by the plaintiffs cannot now be granted.

9. In the result, I pass the following order :

(a) The plaint be returned to the plaintiffs at this Court was not empowered to receive the same at the time when it was presented to this Court;

(b) Prothonotary of this Court to return the plaint after complying with Rule 283(iii) of the Rules of this Court as applicable to its Original Side;

(c) Prothonotary to act on the minutes of this Order;

(d) Issuance of certified copy of the minutes of the Order is expedited.

Order accordingly