S.B. Mhase, J.
1. This appeal is directed against the judgment and order dated 12th December, 2007, passed in Notice of Motion No. 467 of 2007 in Suit No. 3537 of 2004. Suit No. 3537 of 2004 has been filed by the plaintiffappellant. The respondent-defendant took out Notice of Motion No. 6456 of 2005, raising a preliminary issue of jurisdiction under Section 9(A) of the Code of Civil Procedure and for a declaration that this Court does not have jurisdiction to try the suit and consequently for an order that the plaint be returned under Order VII Rule 10 of the Code of Civil Procedure, 1908 (for short 'CPC').
2. By order dated 26th April, 2006, Notice of Motion No. 745 of 2005 was dismissed by a learned single Judge. The defendant filed Appeal No. 896 of 2006 against the said order. The said appeal was disposed of by an order dated 13th December, 2006 by the Division Bench. While dismissing the appeal the Division Bench held that it was open to the defendant to make an application for rejection of the plaint under order VII Rule 1 of the CPC and if such an application is made, it would be considered uninfluenced by the order dated 26th April, 2004. In the circumstances, the defendant took out Notice of Motion No. 467 of 2007 for an order rejecting the plaint under Order VII Rule 11 of the CPC.
3. In the present matter, the plaint was presented on 29th September, 2004 and it was admitted on 10th December, 2004. At that time, the leave application under Clause 12 of the Letters Patent was not filed by the appellant, but when the defendant raised an exception to the jurisdiction of this Court by filing Notice of Motion No. 745 of 2005, the appellant filed an Affidavit-in-reply on 27th March, 2006, wherein the appellant stated that the appellant intended applying for leave under Clause 12 and, accordingly, the appellant filed a leave application under Clause 12 of the Letters Patent on 27th March, 2006. The said application has been considered and rejected by the learned single Judge by the impugned order. Since the leave is rejected, the plaint automatically stood rejected.
4. It is an admitted position on record, while this appeal was being heard, that part of the cause of action has arisen in Mumbai and part of the cause of action arose outside Mumbai. Before the learned single Judge, the respondent has raised a ground that no part of the cause of action has arisen within the jurisdiction of this Court and that a material part of the cause of action has not arisen within the jurisdiction of this Court. The single Judge has ultimately recorded a finding thus:
Thus independent of where the alleged forgery took place, the cause of action has also arisen in Mumbai where the Bill of Exchange was sought to be used. In the circumstances, a material part of the cause of action has arisen within the jurisdiction of this Court.
This finding recorded by the learned single Judge has not been challenged by the respondent. Therefore, ultimately on the basis of a concession and finding referred to above, we have to proceed in the matter on the fact that part of cause of action has arisen in Mumbai while part of the cause of action has arisen outside Mumbai. It is also an admitted position on record in view of the application made by the appellant seeking leave of this Court under Clause 12 of the Letters Patent, that the present suit requires a leave of the court under Clause 12 before presentation of the suit and, therefore, by an application dated 27th March, 2006, the appellant is seeking such a leave to file the suit.
5. There is no dispute amongst the counsel for both sides that the present suit requires leave under Clause 12 of the Letters Patent. However, in the present matter, though the suit was presented on 29th September, 2004 and it was admitted on 10th December, 2004, leave under Clause 12 of the Letters Patent was not prayed for and/or applied for by the appellant and the suit was admitted on 10th December, 2004 without such a leave being obtained and/or granted. The application for obtaining leave under Clause 12 of the Letters Patent was, for the first time, applied for on 27th March, 2006 i.e. at the time of filing a reply to the Notice of Motion No. 745 of 2005 filed by the respondent. These factual aspects of the matter are also not in dispute. Under these circumstances, the application for leave under Section 12 of the Letters Patent was argued and the learned single Judge, after having considered the various judgments which were placed before the learned single Judge, has rejected the application of the appellant seeking leave under Clause 12 of the Letters Patent to file a suit. Therefore, this Court has been called upon to consider the validity and legality of the order so far as it rejects the appellant's application dated 27th March, 2006 seeking leave to file suit under Clause 12 of the Letters Patent under the above referred facts and circumstances.
6. The learned Counsel for the appellant has relied upon order IV Rule 1 of the CPC and more specifically order IV Rule 1 sub-rule (3) and submitted that the plaint shall not been deemed to be duly instituted unless it complies with the requirements specified in Sub-rule (1) and (2). Thus, the learned Counsel submitted that the relevance of this sub-rule is highlighted by the fact of insertion of the words 'duly instituted' and 'deemed to be'. According to him, these two words clearly widen the scope of enquiry with regard to whether the leave ought to be granted or not at the threshold and whether these words imply that the leave can be granted after the physical institution of the suit if the circumstances discovered subsequent to the filing of the suit so warrant. The learned Counsel also relied upon Rules 45, 47 and 283 of The Bombay High Court (Original Side) Rules, 1980 (for short 'Original Side Rules') to buttress the submission which the learned Counsel has made on the basis of Order IV Rule 1 referred to above. He submitted that when the suit was drafted by the earlier Advocate for jurisdiction purpose, paragraph 48 was drafted which was as follows:
The plaintiffs state and submit that they have their registered office in Mumbai and carry on business in Mumbai. The cause of action arose in Mumbai inasmuch as the negotiations between the plaintiffs and defendants were held in Mumbai. The letter of credit was opened by the plaintiffs through their bankers Canara Bank, Colaba Branch, Mumbai. The Bill of Exchange was sent by the defendants to the plaintiffs bankers in Mumbai. This Hon'ble Court has, accordingly, jurisdiction to entertain, try and dispose of the suit.
7. The learned Counsel submitted that these averments in paragraph 48 of the suit show that the entire cause of action for the suit has arisen in Mumbai and, therefore, leave under Clause 12 of the Letters Patent was not necessary. He submitted that when the objection was raised by the respondent, more specifically as stated in paragraph 7 of the Notice of Motion No. 467 of 2007 that the appellant realised that the entire cause of action has not arisen within Mumbai, but it is partly within Mumbai and partly outside Mumbai and, therefore, leave under Clause 12 is necessary. The learned Counsel submitted that with the change in Advocate immediately the application for leave under Clause 12 was submitted. He submitted that, therefore, a physical presentation of the suit and admission of the plaint cannot be said to be an admission of the plaint or institution of the suit because in the absence of leave under Clause 12 it can be said that the suit was not instituted in accordance with law and thus, the learned Counsel tried to make out a distinction between a de facto institution of the suit and a de jure institution of the suit. In short, he submitted that the suit which was instituted and/or numbered without compliance of Clause 12 leave of the Letters Patent cannot be said to have been instituted in view of Sub-rule (3) Rule 1, Order IV of the CPC. Therefore, he submitted that the suit will have to be treated and will have to be deemed at the stage of lodging only and the application under Clause 12 can be considered by the court and since the suit is at the stage of lodging only, as per his contention, this Court can grant validly the permission under Clause 12 of the Letters Patent. In short, he submitted that the suits which require permission under Clause 12 of the Letters Patent, if instituted without such permission, is a nonest in law and/or a nullity and, therefore, the application to grant leave under Clause 12 of the Letters Patent can be entertained by this Court. To support his contention that leave can be obtained till the institution of the suit, he relied upon the following case laws - ILR 1890 Bom. 93 in the matter of Rumpurtab Samurthroy and Anr. v. Premsukh Chandamal and Ors. 1931 14 Bom LR 236 in the matter of Devidatta Ramniranjan Das v. Sriram Narayandas : [1962]2SCR747 in the matter of Hira Lal Patni v. Sri Kali Nath : AIR2003Bom331 in the matter of M/s. Tranasia Biomedicals Limited v. Revijay Clinical Laboratory & Hospital; and an unreported judgment in the matter of Shiv Silk Mills v. B.N. Khanna & sons and Ors. decided on 8th December, 1996 by Mridul, J. to show that the leave in that case was granted after the admission of the suit to the Registrar. Thus, in short, the learned Counsel for the appellant submitted that the mistake was committed by the earlier Advocate as a result of which the proceeding was a nullity or nonest in law and, therefore, it will have to be deemed that the suit was not instituted and admitted in law and, therefore, it will have to be deemed that the application for leave under Clause 12 has been made by the appellant at the stage of lodging or institution of the suit wherein this Court can grant such leave to file a suit. The learned Counsel also submitted before this Court that the cases which hold that leave to institute a suit under Clause 12 of the Letters Patent is required was necessary to be obtained prior to the admission of the suit have not considered the provisions of the Order IV Rule 1 and more specifically, Sub-rule (3) which was inserted by the Legislature with effect from 1st July, 2002 and, therefore, in the light of Sub-rule (3) Rule 1 of Order IV, CPC, those precedents cannot be said to be a good law in this respect. He, therefore, submitted that in the light of the above referred provisions of the CPC, it is necessary to consider the earlier law in this respect.
8. The learned Counsel for the respondent opposed all the above referred arguments. He submitted that the reliance of the appellant on Order IV Rule 1 for non compliance of Clause 12 of the Letters Patent is misconceived. He submitted that Order IV Rule 1 speaks about as to when the suit shall be instituted. He further submitted that every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in this behalf. According to him, Sub-rule (2) of Rule 1 contemplates that the rules contained in Order VI and VII so far as they are applicable to the suit in question shall be complied and Sub-rule (3) provides that the plaint shall not be deemed to be duly instituted, unless it complies with the requirements specified in sub-rules (1) and (2) of Rule 1 of Order IV. He submitted that the deeming effect which has been provided in Sub-rule (3) of Rule 1 of Order IV is in respect of non compliance of the rules contained in Orders VI and VII. It does not speak about the noncompliance of Clause 12 of the Letters Patent. He further submitted that the jurisdiction clause was drafted by the plaintiffs showing that the entire cause of action has arisen in Mumbai when, in fact, only a part of the cause of action has arisen in Mumbai and rest outside Mumbai. Thereby, the plaintiff himself has selected and pleaded a wrong pleading in respect of the jurisdiction in order to avoid attraction of Clause 12 of the Letters Patent so far as obtaining of the leave is concerned. He, therefore, submitted that it was an intentional pleading on the part of the plaintiffs and his earlier Advocate to take the suit out of the clutches of Clause 12 leave and, therefore, they have drafted paragraph 48 of the plaint to show that the entire cause of action has arisen in Mumbai which does not require leave of this Court. He further submitted that since Rule 1 of Order IV does not make any reference to the non compliance of Clause 12, the deeming effect as desired in Sub-clause (3) of Rule 1 cannot be given to the plaint in hand and, therefore, he submitted that the arguments of the learned Counsel is misconceived. He submitted that it is well settled law under Clause 12 of the Letters Patent that the permission or the leave to institute the suit cannot be granted by the court after the suit has been admitted. He submitted that after the suit is lodged and prayer for admission of the suit, there is a window left out for compliance of the objections wherein the plaintiffs could have complied with the objection in respect of the leave to be obtained under Clause 12 and thus could have protected his suit. However, he submitted that once the said window is closed as a result of the admission of the suit, thereafter the said leave under Clause 12 cannot be obtained. In support of his contentions he relied upon the following case laws 4(1931) 34 Bom LR 236 in the matter of Devidutt Ramniranjandas v. Sriram Narayandas (1933) 36 BLR 84 in the matter of Ramgopal Chunilal v. Ramsarup Baldevdas (1986) MLJ 237 in the matter of Union Bank of India v. Sunpac Corporation and Ors. (1989) MLJ 124 in the matter of Rhoda Jal Mehta and Ors. v. Homi Framroze Mehta and Ors. : (1993)95BOMLR834 in the matter of Noorjahan v. Sadrunnisa 2004 (4) Bom CR 53 in the matter of Air India Limited v. Caribjet Inc. : 2005(3)BomCR94 in the matter of Caribjet Inc. v. Air India Limited and lastly he on an unreported judgment in Summary Suit (Lodg.) No. 213 of 1999 in the matter of Nath Steel Equipment Pvt. Ltd. v. Bangalore Heart Hospital. Lastly, he submitted that the order passed by the learned single Judge is just and proper and, therefore, the appeal deserves to be dismissed.
9. Clause 12 of the Letters Patent of Bombay reads thus:
12. Original jurisdictions as to suits - And We do further ordain that the said High Court of Judicature at Bombay, in the 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 or other immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Bombay, or the Bombay City Civil Court.
10. On a plain reading of Clause 12 it appears that the suits which are within the jurisdiction of the Small Cause Court at Bombay or the Bombay City Civil Court cannot be entertained by the High Court on its original side though the cause of action for such a suit has wholly arisen within the limits of Bombay. The High Court of Judicature at Bombay shall be empowered to receive, try and determine suits of every description in case of suits for land or other immovable property, such a land shall be situated within the local limits of the ordinary original jurisdiction of the High Court or, if the defendant at the time of commencement of the suit shall dwell or carry on business or personally work for gain within such limits. Secondly, the High Court of Judicature at Bombay shall also be empowered to receive, try and determine suits of every description in all other cases (other than referred to in the above sentence) if the cause of action shall have arisen wholly within the local limits of the ordinary jurisdiction of the said High Court or if the defendant at the time of commencement of the suit shall dwell or carry on business or personally works for gain within such limits and, thirdly, the High Court of Judicature at Bombay shall be empowered to receive, try and determine suits of every description in its ordinary original civil jurisdiction in all other cases (in addition to the cases referred above). On obtaining first the leave of the High Court, the High Court of Judicature at Bombay shall be empowered to receive, try and determine suits of every description if the cause of action shall have arisen in part within the local limits of ordinary original jurisdiction of the High Court or if the defendant at the time of commencement of the suit shall dwell or carry on business or personally work for gain within such limits. Thus, the above analysis will point out that while dealing with the original jurisdiction of the High Court of Bombay if the civil suit is in respect or the land or other immovable property situated within the area of Bombay then the High Court of Judicature at Bombay has jurisdiction to receive, try and determine such a suit and for such a suit, a prior permission or a leave to institute the suit is not necessary. If the suit is otherwise than the land or immovable property then for the purposes of jurisdiction, cause of action is to be taken into consideration and, in that circumstance, if the cause of action has taken wholly within the local limits of ordinary original jurisdiction of the High Court then prior permission or leave to institute the suit is not required. However, if the suit is otherwise than the land or immovable property of which the cause of action has partly taken place within the local limits or the ordinary original jurisdiction of the High Court, then such a suit requires a prior permission or leave of the court to institute such a suit.
11. Thus, on a proper analysis what we find is that only in respect of the suits of which the cause of action has partly taken place within the ordinary original jurisdiction of the High Court requires a prior permission or a leave to institute the suit. All other suits excepting the suits which can be entertained by Small Cause Court or Bombay City Civil Court can be instituted straight away in the High Court which do not require prior permission or a leave to institute such suits. Thus, what emerges is that in respect of the suits wherein partly the cause of action has arisen within the ordinary original jurisdiction of the High Court, the High Court gets a jurisdiction to entertain such a suit only after the plaintiff seeks a leave of the High Court. In the absence of such a leave, the High Court does not possess jurisdiction to receive, try and determine such suits. In short, the vesting of jurisdiction depends upon the fact as to whether the High Court has granted leave to institute such a suit. If the High Court grants leave to institute the suit of such nature, the High Court gets a jurisdiction to entertain and decide the said suit. However, if the High Court refuses such leave, such a suit cannot be entertained and decided by the High Court.
12. In view of the submission of the learned Counsel for the appellant, the following provisions of the CPC are required to be considered along with the above referred Clause 12 of the Letters Patent. Rule 1 of Order IV of the CPC reads thus:
1. Suit to be commenced by plaint - (1) Every suit shall be instituted by presenting a [plaint in duplicate to the Court] or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Order VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).
Sub-rule (3) is inserted with effect from 1st July, 2002 under the Civil Procedure Code Amendment Act of 1999.
13. The relevant provisions from the Original Side Rules are 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.
Rule 47. Endorsement on admission. - When a plaint is admitted in words 'Admitted this day' shall be endorsed thereon and signed by the Prothonotary & Senior Master or by one of his assistants, the words 'written statement' being added when such statement is required.
14. Thus, Rule 45 of the Original Side Rules deals with the plaint or suits which require a leave of the court. According to the said Rule, the plaint which requires a leave of the court shall 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. This procedure has been provided for in respect of the plaint which requires a leave of the court for presentation in view of Clause 12 of the Letters Patent. Thus on reading this Rule it will appear that the plaint is lodged on a day previous to its date of presentation before the officer attending the Judge in Chambers before 4.15 p.m. and thereafter the plaint is presented on the next day before the Judge and the plaintiff or his advocate remain present at the time of such presentation. This procedure can be dispensed with only in cases of special urgency. That means in case of a special urgency the plaint can be presented on the same day along with the application for leave under Clause 12 of the Letters Patent before the Judge and it may not be necessary in case of special urgency to lodge the plaint for examination by the officer attending on the Judge in Chambers. In case of special urgency the lodging before the officer attending on the Judge in Chambers and presentation before the Judge can be done on one and the same day. What is to be noted is that Order IV Rule 1, though deals with the commencement of the suit by a plaint and states that every suit shall be instituted by presenting a plaint in duplicate to the court or such officer as it appoints in this behalf, it does not specifically deal with suits which require leave of the court under Clause 12 of the Letters Patent. However, in view of the words 'Every suit', it is possible to state that the suits which require leave of the court may be included in Sub-rule (1) of Rule 1 Order IV of the CPC. Even assuming that the words 'Every suit' included suits which require leave of the court for presentation, on a combined reading of Order IV CPC and Rule 45 of the Original Side Rules, it can only be inferred that such suits are required to be presented before the Judge. In Rule 45 also the presentation of the plaint is contemplated before the Judge only in respect of the suits which require a leave of the court. Therefore, on a combined reading of Order IV CPC alongwith Rule 45 of the Original Side Rules we do not find that there is any conflict between the two provisions. We only find that the suits which require leave of the court under Clause 12 of the Letters Patent has to be presented before the Judge or court and not before any other officer. Rule 45 only contemplates lodging before the officer attending on the Judge in Chambers either on a previous day, as stated in the said Rule, and, in case of special urgency, on the date of presentation.
15. What is important to be noted is that the thrust of the argument of the learned Counsel for the appellant is on Sub-rule (3) of Rule 1 Order IV CPC. The said provision states that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2) of Rule 1 Order IV. Sub-rule (1) requires that the suit shall be instituted by presenting a plaint in duplicate either to the court or such officer as it (the court) appoints in this behalf. Therefore, in Sub-rule (1) there are only two requirements viz. the plaint shall be in duplicate and secondly that it shall be presented either to the court or an officer appointed by the court in this behalf. In the present matter, so far as the submission of the plaint in duplicate is concerned, there is no issue involved to that effect. The plaint, in the present matter, has been lodged with the officer as directed by the Prothonotary & Senior Master as provided in Rule 45 of the Original Side Rules. What is to be noted is that if the plaint required a leave of the court, as contended by both the sides, then the plaint should have been lodged with the officer attending on the Judge in Chambers before 4.15 p.m. on a day previous to its being presented to the Judge. It is nobody's case before this Court that the plaint was presented in a special urgency and, therefore, we are not considering that aspect of the matter, but the fact remains on record that the plaint was not lodged for examination before the officer attending on the Judge in Chambers before 4.15 p.m. on the day previous to its being presented to the Judge. On the contrary, since the cause of action stated in the plaint showed that the cause of action has wholly arisen within the ordinary original jurisdiction of the High Court as pleaded in paragraph 48 of the plaint, the plaint was lodged with the officer as directed by the Prothonotary & Senior Master viz. with the officer who accepts or before whom the lodging of the plaints which do not require leave under Clause 12 of the Letters Patent. Thereafter the plaint was admitted by making an endorsement as required under Rule 47 of the Original Side Rules. Thus, what is important to be noted is that the procedure in respect of the plaint which does not require a leave of the court under Clause 12 of the Letters Patent has been followed in respect of the present plaint and the special procedure which is applicable to the plaints which require leave of the court as provided in Rule 45 was not followed. On reading Order IV Rule 1 alongwith Rule 45 of the Original Side Rules, we record our finding that when the plaint was presented it was presented as if it does not require the leave of the court and the procedure requiring the leave of the court was not followed by the appellant. This is in respect of Order IV Rule 1(3) of the CPC and Rules 45 and 47 of the Original Side Rules. Sub-rule (3) of Rule 1 of Order IV deals with non-compliance of Sub-rule (2). The said Sub-rule (2) states that every plaint shall comply with the rules contained in Orders VI and VII of the CPC so far as they are applicable. Thus reading sub-rules (2) and (3) it follows that whenever there is non compliance of the Rules contained in Orders VI and VII so far as they are applicable, the plaint shall not be deemed to be duly instituted unless it complies with the requirement specified in Sub-rule (2). On reading these provisions what we find is that Sub-rule (2) requires compliance of Order VI and VII of the CPC. Order VI is in respect of the pleadings generally and, therefore, it applies to the plaint and written statement generally as stated in Rule 1 of Order IV. Order VII is in respect of plaint specifically. However, before this Court it is nobody's case that the appellant has not complied with Order IV or Order VI. Both these Orders do not speak about the compliance of Clause 12 of the Letters Patent and/or suits which generally require a leave of the court before presentation under any of the provisions of law. Order VII Rule 1(f) requires that the plaint shall contain the particulars of facts showing that the court has jurisdiction. However, in the present matter, this clause has been complied with by the appellant by incorporating paragraph 48 in the plaint. Therefore, on the date of presentation of the Plaint as per the plaintiffs own contention there was a compliance of Orders VI and VII. In short, what we find is that the plaint, as it was presented as per the pleadings in the plaint, was in compliance with Order IV CPC and Rules 45 and 47 of the Original Side Rules. Therefore, the office of the Prothonotary & Senior Master cannot be blamed to admit the plaint under Rule 47 of the Original Side Rules. The defect in the plaint has been brought about by the respondent-defendants when the defendants, for the first time, raised an objection when he filed Notice of Motion No. 745 of 2005 which, as stated above, was finally disposed of by the Division Bench in Appeal No. 896 of 2006 with a liberty to the defendants to make an application for rejection of the plaint under Order VII Rule 11, CPC. Thereafter, the said objection has been raised by the defendants by filing a Notice of Motion No. 467 of 2007. What is important to be noted is that Notice of Motion No. 745 of 2005 brought on record, the defect in the plaintiff-appellant's case and the appellant admitted the said defect and made an application for leave under Clause 12 of the Letters Patent on 27th March, 2006, as stated earlier. Therefore, the plaintiff-appellant is trying to cure the defect in the presentation of the plaint requesting this Court to grant leave at the stage when the plaint has been admitted under Rule 47 of the Original Side Rules read with Order IV Rule 1 CPC. The question, therefore, is whether leave under Clause 12 can be granted by the court after the presentation of the plaint viz. the admission of the plaint under Rule 47 of the Original Side Rules. Therefore, in order to show that the plaint was not duly instituted and it shall not be deemed to be duly instituted, the appellant is relying upon Sub-rule (3) of Order IV Rule 1 CPC.
16. This argument, though prima facie is very attractive, cannot be accepted because when the plaint was presented it was found to be properly presented by the office and even by the plaintiffs in compliance with Order IV Rule 1 CPC and Rule 45 and 47 of the Original Side Rules. Having accepted that position on the basis of the plaint as it is presented, it is the plaintiff and his counsel who are responsible for not obtaining leave under Clause 12 of the Letters Patent. On the contrary, when the plaintiff and his counsel knew that part of the cause of action has arisen in Mumbai and part of the cause of action has taken place outside Mumbai as per the total narration of the bundle of facts constituting the cause of action, the plaintiff and his counsel preferred to draft paragraph 48 of the plaint to show to the court and the officers of the Prothonotary & Senior Master that the whole cause of action has arisen within the ordinary original civil jurisdiction of the High Court of Bombay so as to get the plaint admitted without following the procedure as is required to be followed in respect of the plaint which requires a leave of the court. In fact, it is the duty of the counsel who has drafted the plaint and presented the plaint to follow the procedure. However, for the best reasons known to the plaintiff and his counsel, they have drafted the plaint as if no leave under Clause 12 of the Letters Patent is required and have proceeded with such a plaint. It may be an inadvertent mistake on the part of the plaintiff or his counsel; it may be an intentional mistake committed by them to ease the procedure and/or it may be a mistake committed by the counsel who is immature in drafting the pleadings of such suits. But, whatever may be the reason, it is now not permissible for the appellant to say that his counsel has committed the mistake and, therefore, it may be now deemed that the suit was not properly instituted in compliance with Sub-rule (1) and (2) of Order IV of the CPC read with Rule 45 of the Original Side Rules and, therefore, it may be deemed that the suit is not duly instituted and permit the compliance. What is important to be noted is that the compliance which is contemplated is of Order VI and VII. It is nobody's case before this Court that Orders VI and VII were not complied with. Reading Sub-rule (1) of Rule 1 Order IV CPC along with Rule 45 of the Original Side Rules it can be considered that the suit cannot be deemed to be duly instituted. But what is to be noted is that the cause of action as pleaded in the plaint is not amended by the appellant. It is only conceded by the plaintiffappellant that the suit requires leave of the court under Clause 12 and the application has been made. If the cause of action as required under Clause 12 to obtain leave of the court would have been pleaded in the plaint, the office of the Prothonotary & Senior Master would not have admitted the plaint. What we have to observe is that it is the plaintiff and his counsel who are responsible for filing a plaint which requires leave of the court without obtaining such leave. Therefore, it will not be permissible for the plaintiff to aprobate or reprobate at the same time and to take a somersault to contend that now it be inferred that the suit has not been properly instituted and, therefore, the plaintiff is entitled to correct the substantial defect in presentation of the plaint which related to a substantial conferment of jurisdiction to try the suit by the High Court. If such an approach is taken, it will lead to a fraudulent approach viz. to file a suit with an object to avoid the procedure for obtaining leave of the court and if subsequently the defendant points out the defect in the suit, then to make a somersault and make an application for correction of the said defect. The stance which has been taken by the plaintiff has an inherent ingredient of deceitful approach apart from ignorance of law. Be that as it may, whether ignorance of law or mistake of law, ultimately the fact remains that whenever such application for leave is made subsequent to the admission of the plaint under Rule 47 of the Original Side Rules, it is an application with a deceitful intention to cure the defect. Therefore, such an application cannot be entertained by invoking Sub-rule (3) of Rule 1 Order IV CPC. No doubt the said sub-rule was not on record till July, 2002 and, therefore, the said rule has not been considered in the judgments. However, the said sub-rule does not permit correction of the defect as it tried to be argued by the appellant. What we find on reading Rule 1(3) of Order IV is that it only speaks of non compliance of sub-rules (1) and (2) viz. the presentation of the plaint in duplicate to the court and non compliance of Orders VI and VII CPC. We do not find any reference in Order IV Rule 1 CPC to Clause 12 and/or any such similar provision.
17. We, therefore, record a finding that the deeming effect of the suit not being duly instituted will be applicable in respect of the non compliance of sub-rules (1) and (2) of Order IV CPC. Such a deeming effect cannot be extended to say that the suit shall not be deemed to be instituted if there is non compliance of Clause 12 of the Letters Patent. In short, we observe and state that non compliance of Clause 12 of the Letters Patent and its effect on the suit has not been dealt with by Sub-rule (3) of Rule 1 Order IV CPC. Therefore, the submission of the learned Counsel that in view of Sub-rule (3) of Rule 1 Order IV CPC, it will have to be held that since there is a non compliance of Clause 12 of the Letters Patent, the plaint shall not be deemed to be duly instituted. Such an inference, according to us, does not flow on a combined reading of Order 4 Rule 1 CPC and Rules 45 and 47 of the Original Side Rules read along with Clause 12 of the Letters Patent (Bombay).
18. The learned Counsel for the appellant has relied upon ILR 1890 Bom 93 in the case of Rampurtab Samruthroy and Anr. v. Premsukh Chandamal and Ors. In this matter, the plaintiff who had earlier obtained leave under Clause 12 of the Letters Patent applied for an amendment. The court observed that granting the amendment would be permitting the plaintiff to obtain an adjudication upon a cause of action different from that for which the leave of the court had been obtained and one which must be substantiated by very different evidence and which must involve an investigation of an entirely different character and, therefore, it is observed that suits for which the leave to sue under Clause 12 of the Letters Patent is necessary, the plaint cannot be afterwards amended. The grant of leave is endorsed by a Judge accepting it. Grant of leave under Clause 12 of the Letters Patent is a judicial act which must be held to relate only to the cause of action contained in the plaint as presented to the court at the time of granting such a leave, which affords the very foundation of a jurisdiction, is not available to confer jurisdiction in respect of a different cause of action which was not judicially considered at the time it was granted. In respect of such a different cause of action leave under Clause 12 cannot be granted after the institution of the suit and, therefore, the court cannot try such a different cause of action except in another suit duly instituted. The issue involved in this case was in respect of the amendment of the suit which was instituted after getting leave under Clause 12 of the Letters Patent and whether such amendment could be permitted. Such is not the issue in the case in hand. However, the court observed in that case that the leave under Clause 12 cannot be granted after the institution of the suit which is a case similar to the present case in hand and this judgment, in fact, operates against the appellant.
19. The appellant has further relied upon (1931) 4 BLR 236 in the case of Devidutt Ramniranjandas v. Shriram Narayandas. In this judgment also, the Division Bench of the Bombay High Court followed the single Judge's view in the case of Rampurtab Samruthroy (supra) and held as follows:
Clause 12 of the Letters Patent defines the limits of the original jurisdiction of this Court and reading the clause, apart from authority, it seems to me clear that in a case in which the cause of action has arisen in part only within the local limits of the original jurisdiction, it is a condition precedent to the maintenance of the suit that the leave of the Court should have been first obtained. The condition of obtaining leave is an essential qualification of the suit. This, I think, has been the general view of the High Courts in India e.g. see the judgments of Sir Richard Couch in Hadjee Ismail Hadjee Hubbeed v. Hadjee Mahomed Hadjee Joosub, of Sir Basil Scott in Abdul Kadir v. Doolanbibi, of Mr. Justice Telang in Rampurtab Samruthroy v. Premsukh Chandamal and of a special bench of the Calcutta High Court in Laliteshwar Singh v. Rameshwar Singh....
In my judgment the words of Clause 12 of the letters patent are quire clear and make the obtaining of leave a condition precedent to the entertainment by this Court of a suit in which the cause of action arises in part outside the jurisdiction, and the condition is not one which it is competent for a Court to ignore or for the parties to 'waive'. The question then is whether the granting of leave under Clause 12 is a condition precedent going to the root of the jurisdiction of the Court or a mere matter of procedure capable of being waived by conduct or agreement of the parties.
Clause 12 of the Letters Patent provides that the High Court of Judicature at Bombay in the 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 case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original civil jurisdiction of the High Court. The rest of the clause is not material. The words 'empowered to receive' seem to me to be important and the meaning is 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 Division Bench observed that it is the duty of every Judge to ask himself when he is invited to exercise a limited statutory jurisdiction whether the case falls within the defined ambit of the statute and it is his duty to decline to make an order as a Judge if and so far as the matter is outside the jurisdiction. The Court, therefore, is bound to take the point of want of jurisdiction at whatever stage that point may be brought to its attention and usually the plaint will not be received unless leave has been obtained. I should add that I am satisfied that Section 21 of the CPC has no application to this case.
20. Thus, having found that the leave under Clause 12 of the Letters Patent is a condition precedent in a suit where the cause of action is partly outside Bombay, the Division Bench further found that it is a duty of the court to enquire and ask itself as to whether it has a statutory jurisdiction or not and this can be considered at any stage of the proceeding. What is important to be noted is that Section 21 of the CPC which states that the objection to the jurisdiction of the court cannot be taken in appellate or revisional jurisdiction unless the said objection is taken in the court of first instance at the earliest possible opportunity and in all cases where the issues are settled, at or before such settlement and unless there has been a consequent failure of justice has no application when the court is considering a want of jurisdiction for instituting the suit without obtaining the leave of the court under Clause 12 of the Letters Patent. Therefore, the suit wherein the High Court has no jurisdiction for non compliance of Clause 12 of the Letters Patent have been separately dealt with than the objection in respect of the jurisdiction of the court as contemplated under Section 21 of the CPC. This objection in respect of the jurisdiction with non compliance of Clause 12 stands on a higher footing and has absolute mandatory effect than the rest of the objections in respect of jurisdiction which can be raised and covered under Section 21 of the CPC. Applying this ratio, therefore, to the facts and circumstances of the case of the appellant, it will be noticed that the respondent was justified in taking the objection immediately after the service on the respondents and thereby claiming rejection of the plaint. In fact, as a result of the objection, it is the duty of the Judge to find out whether the matter is within or outside the statutory jurisdiction of the court in view of the Letters Patent provisions and thus looked and answered, the case does not support the appellant-plaintiff. On the contrary, this case supports the defendant-respondent and even the defendant-respondent has relied upon the said case.
21. In (1933) 36 Bom LR 84 in the matter of Ramgopal Chunilal v. Ramsarup Baldevdas the court observed:
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.
22. Thus, in this case the matter was scrutinized and scanned for the point of limitation and the lodging of the plaint before the officer of the court was held to be sufficient to protect the limitation. Thereafter, the plaint can be brought before the Judge in Chambers for obtaining the leave of the court and once the leave is granted by the court the further scrutiny can be carried out for admission of the plaint. However, what is to be noted is that here also, the leave under Clause 12 has been found to be necessary prior to the admission of the plaint as desired under Rule 47 of the Original Side Rules and Order IV of the CPC.
23. In an unreported judgment in the matter of M/s. Shiv Silk Mills and Ors. v. B.M. Khanna & Sons and Ors., decided on 8th December, 1976 in Suit No. 130 of 1977, Mridul, J. has held that the expression 'in case the leave of the court shall have been first obtained' postulates that but for such leave which was to be obtained before hand, the suit would be unauthorized and incompetent. It was further held that the leave under Clause 12 of the Letters Patent is a condition precedent for maintainability of the suit and in the absence of such leave the suit is rendered incompetent and the proceedings in respect thereof are a nullity. The learned Judge further held that it is well settled practice of this Court that a suit in respect of which leave is not obtained has to be dismissed. The learned Judge held that there was an established practice of this Court not to return the plaint in such a case but to dismiss the suit. As far as this aspect is concerned, the learned Judge also noted the insertion of Rule 269-A in Original Side Rules.
24. However, in the matter of Rhoda Jal Mehta and Ors. v. Homi F. Mehta and Ors. (1999) MLJ 124, the court differed with the view of Mridul, J. in the matter of M/s. Shiv Silk Mills (supra). The court also differed with the view expressed in the case of Union Bank of India v. Sunpac Corporation and Ors. (1986) MLJ 237 and observed thus:
8. As rightly pointed out by Mr. Justice Rangnekar in the case of Devidatt Ramniranjandas v. Shriram Narayandas (supra) the most important words in Clause XII of the Letters Patent are 'empowered to receive'. If I am not empowered to receive a plaint, it must necessarily mean that I ought not have really admitted the plaint. If I have admitted the plaint, that is per se without jurisdiction and, if that is so, I must necessarily return the plaint to the person who has lodged the same.
However, in the present matter, the question of return of the plaint is not under consideration, but the question under consideration is as to whether to grant leave under Clause 12 of the Letters Patent when the suit has been instituted and admitted under Rule 45 and 47 of the Original Side Rules and Order IV Rule 1 CPC. Therefore, on facts, the aforesaid case is not applicable. However, even in the above case, the fact remains that a view has been taken that leave ought to have been taken prior to the institution of the plaint.
25. In the matter of Noorjahan v. Sadrunnisa 1993 (1) BCR 208 it has been observed thus:
Clause 12 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 leave of the court shall have been first obtained, in part within the local limits of the Ordinary Original Civil Jurisdiction of this Court. The words 'empowered to receiver' 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.
On reading the ratio of this case, it is crystal clear that the case does not help the appellant in any way.
26. In Union Bank of India v. Sunpac Corporation Limited (1986) MLJ 237, following the judgment in Ramgopal's case (supra), drew a distinction between presentation and admission of the Plaint. It is held that so long as the plaint is not admitted and entered in the Register of suits, all defects including that of absence of leave under Clause 12 of the Letters Patent can be removed without returning the plaint considering that there is no question of returning the plaint which is not admitted and that it simply remains under objection till it is admitted. Therefore, according to the Judge, it is necessary for a party to obtain leave, not at the stage of presentation of the plaint to the proper officer, but prior to its admission and entry in the Register of cases. On the facts and ratio of this judgment, this case is not applicable to the appellants' case.
27. A reference has been made to an unreported judgment dated 11th March, 1999 in the matter of Nath Steel Equipment Pvt. Ltd. v. Bangalore Heart Hospital & Research Centre and Frank C. Spencer Centre and Anr. following the judgment in Sunpac Corporation (supra). However, these judgments do not help the plaintiff-appellant in any way.
28. Then a reference has been made to Air India Limited v. Caribjet 2004 (4) Bom CR 53. In the facts of the said case, leave under Clause 12 of the Letters Patent was granted prior to the admission of the plaint under Rule 47 of the Original Side Rules. Therefore, relying upon Union Bank of India v. Sunpac Corporation and Nath Steel Equipment Pvt. Ltd., the learned single Judge rejected the contention on behalf of the defendant that the plaint be returned to the plaintiff. There it was found that the plaint, having been lodged prior to obtaining leave under Clause 12 of the Letters Patent would make no difference and that it is only upon numbering of the suit that the suit can be said to be received by the court. The institution of said suit was found to be legal and not hit by want of leave under Clause 12 of the Letters Patent. In the said case, relying upon Transasia Bio-Medicals v. Revijay Chemical Laboratory & Hospital : 2002CriLJ575 , the court observed:
The opinion expressed in this judgment is that there can be no question of granting a post-facto leave. There can be no dispute that the said proposition is a view which has prevailed since long.
The observation that there can be no question of granting post facto leave is an observation which is against the appellants.
29. The plaintiff has very heavily relied upon : AIR2003Bom331 in the matter of Transasia Bio-Medicals Limited v. Revijay Clinical Laboratory and Hospital and submitted that the leave was granted after the admission of the suit. In the said case along with the three suits instituted by the plaintiff the plaintiff had filed applications under Clause 12 of the Letters Patent and pressed for orders but the learned single Judge was of the opinion that as on the invoice there is a note 'subject to Mumbai jurisdiction', no leave was necessary and , therefore, the learned single Judge did not pass any order on the applications taken out by the appellant under Clause 12 of the Letters Patent. The plaintiffs, after the writ of summons was served on the defendants, took out Summons for Judgment in all the three suits. Those Summonses for Judgment have been decided by the learned single Judge. The main order has been passed by the learned single Judge in Summons for Judgment No. 783 of 2000 taken out in Summary Suit No. 2385 of 2000. The learned single Judge has held that if it was the case of the plaintiff that part of the cause of action has arisen in Mumbai, it was necessary to secure leave under Clause 12 of the Letters Patent and as the leave under Clause 12 of the Letters Patent has not been secured by the plaintiff, the defendants are entitled to unconditional leave to defend the suit. The learned single Judge has noted that the plaintiff had taken out a Petition under Clause 12 of the Letters Patent for securing leave of the court to institute the suit, but no order was passed by the learned single Judge dealing with the matter because he was of the opinion that the leave is not necessary. The learned single Judge has also observed that the failure to pass an order on the Petition taken out under Clause 12 of the Letters Patent has resulted in injustice to the plaintiff. But, the court noted that the leave under Clause 12 of the Letters Patent has to be obtained by a party before the institution of the suit and there can be no post facto grant of leave to institute a plaint under Clause 12 of the Letters Patent and, therefore, unconditional leave to defend was granted. Therefore, appeals were preferred challenging the unconditional leave to defend granted in the said suit. In the above referred circumstances, it was observed:
The question that arises for consideration is whether injury can be allowed to be caused to the interest of the plaintiff for an act of the court because, even according to the plaintiff, as it is borne out from the averments in the plaint and the conduct of the plaintiff of taking out petitions under Clause 12 of the Letters Patent securing leave under Clause 12 was necessary. The plaintiff had done everything within his power to secure that leave, but the court did not pass any order on those Petitions because the court was of the opinion that in view of the endorsement on the invoice viz. 'Subject to Mumbai jurisdiction' it was not necessary for the plaintiff to secure any leave under Clause 12. In our opinion, therefore, in this situation, the learned single Judge instead of granting unconditional leave to defend to the defendants ought to have taken up for consideration, the petitions filed under Clause 12 of the Letters Patent first before deciding the Summonses for Judgment and ought to have decided that Petition first and thereafter ought to have taken up the Summons for Judgment for consideration because the Petitions filed by the plaintiff under Clause 12 are still pending before this Court and have not been disposed of by making order either granting leave or refusing leave. It is abundantly clear from the record that there was a clear mistake committed by the Court in not making an order one way or the other on the petitions filed by the plaintiff under Clause XII. In our opinion, the first and highest duty of the Court is to take care that the act of the Court does not cause injury to any litigant. The procedure of the Court has been prescribed to facilitate the justice and it should not be so construed or used to penalise the litigants for no fault of theirs.
Taking overall view of the matter, therefore, in our opinion, it would be appropriate for us to take up for consideration the petitions filed by the plaintiff under Clause XII of the Letters Patent. A petition filed under Clause XII of the Letters Patent is to be considered on the basis of an averment made in the plaint and the documents accompanying the plaint.
Now, that we have granted leave under Clause XII of the Letters Patent, the only ground on which unconditional leave to defend was granted in favour of the defendants by the learned single Judge by the orders impugned in these appeals, disappears and therefore those orders will have to be set aside and are accordingly set aside.
30. This case was relied upon to show that the leave under Clause 12 was granted even after the institution of the suit. No doubt, in the present matter, after the suit was numbered, the leave has been granted. But, what is important to be noted is that the applications for grant of leave under Clause 12 were filed along with the suit and it was the court who committed mistake in not passing the orders. Therefore, the plaintiff has done everything within the powers of the plaintiff and thereafter the plaintiff was helpless. The court was of a different view in view of the endorsement on the invoice and failed to pass an order on the application made by the plaintiff. Under these special circumstances, the leave has been subsequently granted. That is not the case in the case in hand. Therefore, neither the facts in the present case nor in the matter of Transasia Bio-Medicals are same so as to attract the procedure which has been followed by the court in the cited case. With due respect to the learned Counsel, this case also does not apply to the facts and circumstances of the case in hand.
31. Therefore, what we find is that the cases which have been relied upon by the appellant-plaintiff are not applicable and they do not support the case of the appellant. However, from the above referred cases, the law which emerges is as follows. The act of grant of leave under Clause 12 in a suit where part of cause of action has arisen outside Mumbai is a judicial act on the part of the Judge before whom the suit is presented for grant of leave under Clause 12 of the Letters Patent. Since it is a judicial act as has been observed in the judgments referred to above, the said judicial act cannot be parted by the Judge and cannot be delegated to any officer of the court and/or to the Prothonotary & Senior Master. We also find that once leave has been granted by this Court under Clause 12 then such suits cannot be amended because granting of an amendment would mean an entertainment of this amended suit for which the leave under Clause 12 has not been granted by the court and, therefore, such amended suit will be incompetent. Therefore, the suit has to proceed as it has been instituted and for which leave under Clause 12 has been granted by the court and the amendment to the suit will not be permissible. The suit which requires leave under Clause 12 must be presented as provided under Rule 45 of the Original Side Rules and any objection including the objection in respect of non compliance of leave under Clause 12 of the Letters Patent shall be complied with before the suit is admitted under Rule 47 of the Original Side Rules. The objection in respect of the non compliance of the leave under Clause 12 can be raised at any stage of the proceedings and Section 21 of the CPC will not be attracted in respect of such objections to the jurisdiction. Order IV, Rule 1 and more specifically Sub-rule (3) has no application when the suit has been instituted without obtaining leave of the court and thereby claiming a post facto leave, since the court, while granting leave under Clause 12, is doing a judicial function since the court was not called upon to carry on the said judicial function by filing an appropriate application to grant leave under Clause 12 Sub-rule (3) of Rule 1 Order IV CPC is not attracted.
32. Thus what we find is that the appeal is without any merit. The application made for post facto leave under Clause 12 of the Letters Patent is misconceived and, therefore, the decision taken by the learned single Judge to reject the said application of the plaintiff-appellant stands justified and well supported in law. We agree with the learned single Judge and dismiss the appeal filed by the appellant.