JUDGMENT - H. SURESH, J.:---The plaintiffs, having field this 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, now seek an order that the plaint be returned to them for presentation in a proper Court, and if the presentation is to this very Court, to present it after obtaining the necessary leave under Clause XII of the Letters Patent. Ordinarily, I thought that there could be no opposition to this. However, Mr. Khambatta appearing for the defendants, relying on an unreported judgment of Mridul, J., dated 8th December, 1976, in Suit No. 130 of 1977 (Shiv Silk Mills v. B.M. Khanna)1, objects to this course of action and submits that the suit have to be necessarily dismissed. In this connection, he says that there is a long line of decisions taking a similar view and it starts with the case of (In re Bal Amrit)2, reported in I.L.R. Vol. VIII (1884) Bombay page 380.

2. I find from the copy of the Judgment of Mridul, J., that the matter before him had been extensively argued. The main argument before him was that the question of leave under Clause XII of the Latters Patent was not a question 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 will have to be dismissed.

3. Mr. Khambatta submitted that since a Judge of this Court has taken this view, it is not possible for me to differ from the same and that, therefore, the proper course for me would be to refer this question to a Division Bench. As against this, Mr. Parekh appearing for the plaintiffs, submitted that an earlier Division Bench of this Court consisting of Chief Justice Beamount and Justice Rangneker, has, in the case of (Devidatt Ramniranjandas v. Shriram Narayandas)3, reported in 34 Bombay Law Reporter, Page 236 in terms held that the question of obtaining leave under Clause XII of the Letters Patent and the lodging of a plaint without such a leave is one relating to jurisdiction and in that connection he pointed out that there are certain observations which are directly opposed to what Mr. Justice Mridul has said in his Judgment referred to above.

4. Undoubtedly obtaining of leave under Clause XII of the letters Patent is a condition precedent to the 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. Justice Rangneker then said this: (supra at page 250)

"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 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."

Mr. Justice Mridul found nothing in these observations to buttress the submission that it is the leave which confers jurisdiction. But in my view he missed the

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