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1992 Supreme(Bom) 545
IN THE HIGH COURT OF BOMBAY
S.M. Jhunjhunuwala, J.
Noorjahan wdlo Altaf Ahmed and others ... Plaintiffs.
Versus
Sadrunnisa wdlo Haji Fatehulla Khan and others ... Defendants.
Suit No. 3219 of 1984, decided on 23-11-1992.
Advocates appeared :
Y.H. Muchhala with R.K. Sarguroh and Bhargavram, for the plaintiffs.
Y.E. Mooman, for the 1st defendant.
Obtaining leave under Clause XII of the Letters Patent is a condition precedent to the Court's jurisdiction to entertain a suit where a part of the cause of action has arisen outside its jurisdiction.
Headnote:
LETTERS PATENT - JURISDICTION - CLAUSE XII - LEAVE TO SUE - GRANT OF LEAVE - CONDITION PRECEDENT - JURISDICTION OF COURT - INTERPRETATION OF CLAUSE XII - RETURN OF PLAINT - PRACTICE AND PROCEDURE.
Fact of the Case:
Plaintiffs filed a suit for administration of the estate of Haji Fatehulla Khan, who died intestate in Fatehpur, Uttar Pradesh, in the City Civil Court at Bombay. The plaint was returned for presentation to the proper Court. Plaintiffs lodged the plaint in the High Court without obtaining leave under Clause XII of the Letters Patent, which was required since only a part of the cause of action had arisen in Bombay. Plaintiffs sought leave under Clause XII and condonation of delay in filing the petition for leave.
Finding of the Court:
The Court held that obtaining leave under Clause XII of the Letters Patent is a condition precedent to the Court's jurisdiction to entertain a suit where a part of the cause of action has arisen outside its jurisdiction. The Court cannot ignore or waive this condition. The Court further held that leave under Clause XII cannot be granted after the institution of the suit. Therefore, the Court could not grant leave to the plaintiffs.
Issues: 1. Whether leave under Clause XII of the Letters Patent is a condition precedent to the Court's jurisdiction to entertain a suit where a part of the cause of action has arisen outside its jurisdiction? 2. Whether leave under Clause XII can be granted after the institution of the suit?
Ratio Decidendi: 1. Clause XII of the Letters Patent empowers the High Court to receive, try, and determine suits of every description if, in the case of suits for land, the land is 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 Civil Jurisdiction of this Court. 2. 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. 3. 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. 4. 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.
Final Decision: The Court ordered the plaint to be returned to the plaintiffs as it was not empowered to receive it at the time it was presented. The Prothonotary was directed to return the plaint after complying with the relevant rules.
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 plaintiff 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. This defendant says and submits that the said deceased died at Fatehpur, U.P. on 16th December, 1976, hence no 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 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 submission, Mr. Muchhala has relied upon the case of (Lakshmi Commercial Bank Ltd. v. Bengal National Textiles Mills Ltd. and others)1, reported in A. I. R. 1992 Cal. 278. Mr. Mooman, the learned advocate for 1st defendant, has submit
