Notice of Motion No.1060 of 2012,Suit No.1423 of 2011

11th October, 2013

Petitioner Counsel: RAMPRAKASH CHANDAK
Respondent Counsel: Mr P.M. SHAH a/w DHARMESH JAIN and M. TANNA

Cases Cited:
Quadricon Pvt. Ltd. Vs. Shri Bajrang Alloys Ltd., Appeal No.215/2008, Dt.17.3.2009 [Para 4,8,13,14]
Union Bank of India Vs. Sunpac corporation & Ors., AIR 1986 Bom. 353 [Para 6,12,13,14]
Caribjet Inc. Vs. Air India Limited., 2005(3) ALL MR 443=2005(3) Bom CR 94 [Para 7,14]

JUDGMENT

JUDGMENT :- By this notice of motion, defendant No.3 seeks dismissal of suit on the ground that leave under Clause-XII of Letters Patent has not been taken by the plaintiff before filing of the present suit on 20th December 2010.

2. Defendant No.3 has also filed additional affidavit on 22nd August 2013 in which defendant No.3 seeks dismissal of suit and for return of plaint on the ground that leave under clause-XII of the Letters paternt obtained by the plaintiff is improper and untenable and also on the ground that the same was without mentioning any specific cause of action either at Mumbai or in Rajasthan. Though no application for amendment of the notice of motion was filed by defendant No.3, I have heard both the parties also on the issue whether leave was property obtained or not after lodging the plaint and whether suit should be dismissed on that ground. Some of the admitted facts which are relevant for the purpose of deciding this notice of motion are as under.

2.Defendant No.3 has also filed additional affidavit on 22nd August 2013 in which defendant No.3 seeks dismissal of suit and for return of plaint on the ground that leave under clause-XII of the Letters paternt obtained by the plaintiff is improper and untenable and also on the ground that the same was without mentioning any specific cause of action either at Mumbai or in Rajasthan. Though no application for amendment of the notice of motion was filed by defendant No.3, I have heard both the parties also on the issue whether leave was property obtained or not after lodging the plaint and whether suit should be dismissed on that ground. Some of the admitted facts which are relevant for the purpose of deciding this notice of motion are as under.

2.Defendant No.3 has also filed additional affidavit on 22nd August 2013 in which defendant No.3 seeks dismissal of suit and for return of plaint on the ground that leave under clause-XII of the Letters paternt obtained by the plaintiff is improper and untenable and also on the ground that the same was without mentioning any specific cause of action either at Mumbai or in Rajasthan. Though no application for amendment of the notice of motion was filed by defendant No.3, I have heard both the parties also on the issue whether leave was property obtained or not after lodging the plaint and whether suit should be dismissed on that ground. Some of the admitted facts which are relevant for the purpose of deciding this notice of motion are as under.

3. Without going into the issue whether third defendant could be allowed to argue as to whether leave obtained by the plaintiff could have been obtained after lodging the plaint or not, since notice of motion is not amended, since I have permitted both the parties to address this Court on that issue raised by the third defendant across the bar who appeared in person, same is dealt with in this order.

4. It is submitted by the third defendant that after lodging of the plaint, the plaintiff could not have applied for leave under Clause-XII of the Letters Patent. In view of the fact that part of cause of action had arisen out side Mumbai, no leave could have been granted by this Court after lodging of the plaint on 23rd February 2010 and thus, suit is bound to be dismissed and/or plaint is liable to be returned to the plaintiff for presenting before the appropriate Court. Defendant No.3 placed reliance on the Judgment of Division Bench of this Court in case of Quadricon Pvt. Ltd. Vs. Shri Bajrang Alloys Ltd., delivered on 17th March 2009 in Appeal No.215 of 2008. Reliance is placed on paras 29, 30 and 31 of the said Judgment in support of his submission that petition for leave under Clause-XII ought to have been filed before lodging of the plaint.

4. It is submitted by the third defendant that after lodging of the plaint, the plaintiff could not have applied for leave under Clause-XII of the Letters Patent. In view of the fact that part of cause of action had arisen out side Mumbai, no leave could have been granted by this Court after lodging of the plaint on 23rd February 2010 and thus, suit is bound to be dismissed and/or plaint is liable to be returned to the plaintiff for presenting before the appropriate Court. Defendant No.3 placed reliance on the Judgment of Division Bench of this Court in case of Quadricon Pvt. Ltd. Vs. Shri Bajrang Alloys Ltd., delivered on 17th March 2009 in Appeal No.215 of 2008. Reliance is placed on paras 29, 30 and 31 of the said Judgment in support of his submission that petition for leave under Clause-XII ought to have been filed before lodging of the plaint.

6. Mr Shah, learned counsel placed reliance on the Judgment of this Court in case of Union Bank of India Vs. Sunpac corporation & Ors., reported in AIR 1986 Bom. 353 delivered by the learned Single Judge. Paragraphs 3 to 6 of the said Judgment which are relevant for the purpose of deciding this issue read thus :

" 3. As per the present practice the plaint is presented to the Prothonotary & Senior Master of this Court who is the officer appointed for the acceptance of the plaint as per O. IX, R. 1, of the Civil, P.C. (hereinafter referred to as the Code). Then follows the next stage mentioned in R. 2 of the said Order, namely, the entry of the particulars of the suit in the register of suits and their seriatim numbering according to the order in which the plaints are admitted. O.V.R. 1 then states that it is only when the suit has been duly admitted that the summons is to be issued to the defendant or defendants as the case may be. This is also clear from the provisions of O. VII, R.9.

4.The Code itself therefore envisages two stages first of the presentation of the plaint and the next of the admission of the plaint. The suit is not admitted to the register of the suits and a number given to it merely on the presentation of the plaint. After the presentation the plaint is scrutinized. If there are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter or procedure. It is only after the defects are removed that it becomes eligible for an entry and a number in the register of suits. One of the defects can be the absence of leave of the Court to institute the suit where it is necessary including leave under Cl. 12 of the Letters Patent. So long therefore as the plaint is not admitted and entered in the register of suits all defects including that of the absence of leave under the said clause can be removed without returning the plaint. There is no question of returning the plaint. There is no question of returning the plaint which si not admitted. It simply remains under objection till it is admitted..

5.It is the confusion between the two stages viz. of the presentation of the plaint and of its admission to the register of suits after the removal of the defects if any which is responsible for the faulty procedure adopted by the office. In some cases this procedure may affect the period of limitations which under the Limitation Act runs from the date of the presentation of the plaint and not from the date of its admission. A reference in this behalf can usefully be made to MANU/MH/0112/1933 : AIR1934Bom91 Ramgopal Chunilal v. Ramsarup Baldevdas.

6. Hence I direct the office not to return the plaint for want of leave under Cl. 12 of the Letters Patent but only require the plaintiff to obtain the leave and admit it to the register when the leave is obtained. Order accordingly.

7. Learned counsel appearing for the plaintiff also placed reliance on the Judgment of Division Bench of this Court in case of Caribjet Inc. Vs. Air India Limited., reported in 2005(3) Bom CR 94 : [2005(3) ALL MR 443] and in particular paragraphs 10 and 11 which read thus :

7. Learned counsel appearing for the plaintiff also placed reliance on the Judgment of Division Bench of this Court in case of Caribjet Inc. Vs. Air India Limited., reported in 2005(3) Bom CR 94 : [2005(3) ALL MR 443] and in particular paragraphs 10 and 11 which read thus :

".....Now, as is frequently done by parties, the plaintiffs in this case started their suit at the last possible moment, and on May 25, 1932, the plaint was handed to an officer in the Prothonotary's office. In Section 3 of the Indian Limitation Act it is provided that 'every suit instituted after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up as a defence'. Then, in explanation it is provided that "a suit is instituted, in ordinary cases, when the plaint is presented to the proper officer." Under Order IV, Rule 1, of the Code of Civil Procedure, it is provided that "every suit shall be instituted by presenting a plaintiff to the Court or such officer as it appoints in this behalf." Rule 2 of that Order provides that "the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted." Now in this case the plaint shows on its face that leave to sue is required under Clause 12 of the Letters Patent. The appellant's contention is that in such a case the plaint cannot be presented except to a judge, who is the only person who can give leave to sue under the Letters Patent and that the presentation of the plaint to the proper officer in the Prothonotary's office does not institute the suit where leave to sue is required under Clause 12. It is quite clear under our Rules and practice that the proper officer to receive the plaint is the Prothonotary, or somebody in his office to whom the duty is delegated by him. The only question is whether that rule can apply to a case to which Clause 12 of the Letters Patent is applicable. It is settled law that giving of leave under Clause 12 is a judicial act which cannot be delegated by the Court to the Prothonotary or any other officer, and the clause provides in effect that until leave is granted the Court shall not receive, try or determine the suit. But, I think, that the argument of the appellant really involves a confusion between "presentation of the plaint" and "admission or receipt of the suit". To my mind, the plaint, even where leave is required, is presented when it is handed over by the plaintiff or his agent to the proper officer in the Prothonotary's office. If leave is required, the plaint must be submitted to the Chamber Judge and leave obtained from him under Clause 12 of the Letters Patent. When that leave is obtained the officer in the Prothonotary's office must see that the plaint is in order and admit it under Order IV, Rule 2 and he cannot admit the plaint until the leave of the judge has been obtained. But, to my mind, the obtaining of the leave of the Judge and the admission of the plaint does not affect in any way the presentation of the plaint for the purposes of the Indian Limitation Act. That being so, I think that the decision of the learned Judge is right and this suit was instituted within the period of limitation, viz. on May 25, 1932, and the plaintiffs are entitled to judgment in their favour."

11. In our opinion, the legal position has been correctly set out by P. B. Sawant, J. (as he then was) in Union Bank of India v. Sunpack Corporation and Ors., as follows : As per the existing practice the plaint is presented to the Prothonotary and Sr. Master of this Court who is the officer appointed for the acceptance of the plaint as per Order IX, Rule 1 of the Code of Civil Procedure. Then follows the next stage mentioned in Rule 2 of the said Order, namely, the entry of the particulars of the suit in the register of suits and their seriatim numbering according to the order in which the plaints are admitted. Order V, Rule 1 then states that it is only when the suit has been duly admitted that the summons is to be issued to the defendant or defendants as the case may be. This is also clear from the provisions of Order VII, Rule 9. The Code itself, therefore, envisages two stages first, of the presentation of the plaint, and the next, of the admission of the plaint. The suit is not admitted to the register of suits and number is given to it, merely on the presentation of the plaint. After the presentation, the plaint is scrutinized. If there are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter of procedure. It is only after the defects are removed that it becomes eligible for an entry and a number, in the register of suits. One of the defects can be the absence of leave of the Court to institute the suit where it is necessary, including leave under Clause 12 of the Letters Patent. So long, therefore, as the plaint is not admitted and entered in the register of suits, all defects including that of the absence of leave under the said clause, can be removed without returning the plaint. It was pointed out that it is the confusion between the two stages, namely presentation of the plaint and of its admission to the register of suits after the removal of the defects, if any, which is responsible for the faulty procedure adopted by the office. Sawant J. directed the office not to return the plaint for want of leave under Clause 12 of the Letters Patent but only require the plaintiff to obtain the leave and admit it to the register when leave is obtained. The office followed and implemented the directions of Sawant J. However, it appears that after the decision of Suresh J. in Rhoda Mehta's case (supra) which has taken a contrary view, the office again changed the practice. Incidentally, neither in Rhoda Mehta's case nor in the other decisions rendered by the learned single Judge the decision of Divisional Bench in Ramgopal Chunilal's case was noted. Those decisions are clearly per incuriam. We are informed that following an unreported decision of Kochar J. dated 11th March, 1977 in Nat Steel Equipment Pvt. Ltd. v. Bangalore Heart Hospital and Research Centre (Summary Suit (Ld) No. 213 of 1999) the old practice of not returning the plaint for want of leave has been restored by the office. In the circumstances, the fact that the suit was accepted by the authorised officer of this Court prior to obtaining leave under Clause 12 will make no difference inasmuch as it is only upon numbering of the suit the suit can be said to have been "accepted" by this Court. It is, therefore, not possible to accept the submission that the plaint as lodged on 20th July, 2001 was improper presentation. In the present case, admittedly, leave under Clause 12 was granted on 8th September, 2001 and only thereafter the suit came to be numbered on 13th September, 2001. There is thus no reason to interfere with the order granting leave under Clause 12. Appeal is accordingly dismissed.

8. It is submitted by the learned counsel that in this case leave was obtained before the plaint was admitted under Rule-47 of Bombay High Court (Original Side) Rules. It is submitted that leave under Clause-XII of the Letters Patent could be obtained by the plaintiff before plaint was admitted under Rule-47 of High Court (Original Side) Rules. It is submitted that on this Court granting leave under Clause-XII of the Letters Patent in veiw of part of cause of action having arisen at Mumbai and part of action having arisen outside Mumbai, this Court has jurisdiction to try and entertain this suit. It is submitted that in paragraphs 91 and 94 of the plaint, plaintiff has disclosed which part of action had arisen in the territorial jurisdiction of this Court and which part of action had arisen outside the territorial jurisdiction of this Court. Mr Shah distinguished the Judgment of Division Bench of this Court in case of Quadricon Pvt. Ltd. (supra).

9. On perusal of record, it is clear that plaintiff has averred in the plaint that part of cause of action had arisen within the territorial jurisdiction of this Court and part of cause of action had arisen outside the territorial jurisdiction of this Court and on this Court granting leave under Clause-XII of Letters Patent, this Court will have jurisdiction to entertain and try this suit. Record also indicates that application for leave under Clause-XII was already filed by the petititioner in this Court on 22nd December 2010 which was checked by the office of this Court on 7th January 2011. Office of this Court had also raised querry about leave under Clause-XII not having been obtained by the plaintiff. On 23rd February 2011, this Court granted leave under Clause-XII of the Letters Patent. Record also indicates that the Prothonotary & Senior Master made an endorsement of filing this plaint on 21st June 2011. Prothonotary & Senior Master also made following endorsement :

"Admitted this 21st day of June 2011 Written Statement

Sd/- Prothonotary and Senior Master, 21-6-2011"

10. On perusal of this endorsement on the plaint, it is clear that leave was already obtained by the plaintiff before the admission of plaint which was on 21st June 2011 under Rule-47 of the Bombay High Court (Original Side) Rules. Notice of motion filed by the third defendant which itself proceeds on the premise that plaintiff ought to have obtained leave in view of part of cause of action having arisen out side the territorial jurisdiction of this Court in view of leave already having been obtained by the plaintiff before filing of this notice of motion and before the plaint was admitted, notice of motion is thoroughly misconceived and is rejected.

11. Since I have heard both the parties and in view of the additional prayer sought by the third defendant in additional affidavit, I am also deciding the issue whether leave could be obtained by the plaintiff before the plaint was admitted under Rule 47 of the Bombay High Court (Original Side) Rules.

Rule 45 and 47 of the BombayHigh Court (Original Side) Rules are extracted as follows :

45.Plaint to be lodged before presentation: A plaint in which leave of the Court is to be applied for shall, except in cases of special urgency, be lodged for examination with the officer attending on the Judge in Chambers before 4.15 p.m. on the day previous to its being presented to the Judge and the plaintiff or his Advocate on record shall attend before the Judge at the time of presentation. All other plaints shall be lodged with such officer as the Prothonotary and Senior Master may direct.

47.Endorsement on admission :When a plaint is admitted in words "Admitted this day" shall be endorsed thereon and signed by the Prothonotary and Senior Master or by one of his assistants, the words "written statement" being added when such statement is required.

12. Learned Single Judge in case of Union Bank (supra) has considered the provisions of Order 4 Rules 1 and 2 and Order 5 Rules 1, 7 and 9 of the Code of Civil Procedure. It is held that suit is not admitted to the register of the suits and no number is given to it merely on the presentation of the plaint. After the presentation, the plaint is scrutinized and if there are any defects which are required to be removed, it is matter of procedure and it is only after the defects are removed, it becomes eligible for an entry and a number, in the register of the suits. One of the defects can be the absence of leave of the Court to institute the suit where is is necessary including leave under Clause-XII of the Letters Patent. It is held that so long the plaint is not admitted and entered in the register of suits, all defects including that of the absence of leave under the said clause can be removed without returning the plaint. There is no question of returning the plaint which is not admitted.

13. On perusal of the Judgment of Division Bench of this Court in case of Quadricon Pvt. Ltd. (supra), it is clear that the Division Bench has approved the view of learned Single Judge of this Court in case of Union Bank of India (supra) and has held that the fact that the plaint was accepted by the authorised officer of this Court prior to admission, it will make no difference in asmuch as it is only upon numbering in the register of suits, the suit can be said to have been 'accepted' by this Court. In the said matter, leave under Clause-XII was granted on 4th September 2001. Plaint was lodged on 20th May 2001. Suit was numbered on 13th September 2001. After considering these facts, Division Bench of this Court held that there was no reason to interfere with the order graining leave under Clause-XII and dismissed the said appeal. In my view, the said Judgment of Division Bench of this Court which has approved the Judgment of learned Single Judge delivered in case of Union Bank of India (supra) squarely applies to the facts of this case. Even in this case, leave was granted after lodging of plaint and before the same was admitted and numbered and thus there is no reason to revoke the order passed by learned Chamber Judge granting leave under Clause-XII of the Letters Patent.

14. In so far as reliance on the Judgment of Division Bench of this court in case of Quadricon Pvt. Ltd. (supra) relied on by the third defendant is concerned, on perusal of the facts before this Court in the said matter, it is clear that the plaint was submitted on 29th September 2004 and was admitted on 10th October 2004. Application for leave under Clause-XII of the Letters Patent was not filed by the plaintiff. When the defendant raised an objection to the jurisdiction of this Court by filing notice of motion, in reply to the said notice of motion, plaintiff stated that he seeks to apply for leave under Clause-XII and filed application on 27th March 2006. Learned Chamber Judge of this Court accordingly rejected such application of leave which was filed after plaint having been admitted. With these facts under consideration, Division Bench of this Court held that leave under Clause-XII could not be granted by the Court post facto after admission of the plaint under Rule 47 of the Bombay High Court (Original Side) Rules. Division Bench of this Court in the said Judgment did not take a view different than the view already taken by learned single Judge of this Court in case of Union Bank of India (supra) and by the Division Bench of this Court in case of Caribjet Inc., [2005(3) ALL MR 443] (supra). In my view, the said Judgment of Division Bench of this Court in case of Quadricon Pvt. Ltd. (supra), does not assist the third defendant but assists the plaintiff.

15. On perusal of Rules 45 and 47 of Bombay High Court (Original Side) Rules, it is clear that plaint has to be lodged for examination with the officer of this Court on the day previous to the day being presented to the Judge except in case of special urgency. All other plaints shall be lodged as the Prothonotary & Senior Master may direct under Rule 47 which provides that when the plaint is admitted, "Admitted this day" shall be endorsed thereon and signed by the Prothonotary & Senior Master or by one of his Assistant. The words " Written Statement" being added below the said statement is required. On perusal of the plaint, it is noticed that such endorsement "Admitted this 21st day of June 2011" is made by the Prothonotary & Senior Master on 21-6-2011 which is much after the Chamber Judge of this Court granted leave under Clause-XII of the Letters Patent in favour of the plaintiff. In my view, there is difference between lodgment of plaint and admission of plaint and are two separate steps. In my view, leave under Clause-XII can be granted before admission of plaint.

16. Since admittedly part of cause of action had arisen out side Greater Mumbai and part of cause of action had arisen within the territorial jurisdiction of this Court, plaintiff has obtained leave under Clause-XII properly and upon granting such leave by this Court, this Court has jurisdiction to entertain, try and dispose of this suit. There is no infirmity in the order passed by this Court granting leave under Clause-XII of the Letters Patent after lodging of plaint and before the plaint is admitted under Rule 47 of the Bombay High Court (Original Side) Rules. In my view, there is no merit in any of the submissions made by the third defendant. I therefore pass the following order.

17. Notice of motion is dismissed. There shall be no order as to costs.

Notice of motion dismissed.