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2002 Supreme(Bom) 684
IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
Transasia Bio-Medicals Ltd. .... Plaintiffs.
Versus
Revijay Clinical Laboratory Hospital.... Defendants.
Summons for Judgment No. 783 of 2000 in Summary Suit No. 2385 of 2000, decided on 15-7-2002.
Advocates appeared :
Z.S. Irani, for plaintiffs.
V.K. Rambhadran, for defendants.
Headnote:Civil Procedure Code, 1908 - Section 9-A - Letters Patent (Bom) - Clause 12 - Court - Jurisdiction of - Cause of action - Contract clause conferring jurisdiction on one Court to expulsion of other - Consideration of defendant plea only on training issue under Section 9-A of code - Held - Court having jurisdiction under clause in contract competent to consider plea of defendant under Section 9-A of Code - In view of Clause 12 cause of action arisen only partly - Suit cannot be filed without obtaining permission under Clause 12 - Clause in contract would be useless for plaintiff. - In answer to the summons for judgment, defendants have raised a plea that no permission was taken under Clause 12 of the Letters Patent and consequently this Court will have no jurisdiction to hear, decide and grant reliefs as prayed for. On the other hand on behalf of plaintiffs their learned counsel points out that in fact leave had been sought for. Leave however was not granted. It was thought that leave would not be required considering the clause in the invoice conferring jurisdiction on this Court. In A.B.C. Laminart Pvt. Ltd. and another v. A.P. agencies, Salem, AIR 1989 SC 1239 the Apex Court has laid down the law that when the cause of action arises partly within the jurisdiction of two Courts, the clause in the contract conferring jurisdiction on one of the Courts and excluding jurisdiction on the other is legal. In other words parties to the contract under these circum- stances can agree to confer jurisdiction on one of the two Courts. Under these circumstances, normally this Court would have jurisdiction to entertain the suit based on the pleadings in the plaint by the plaintiff. Please of the defendant could have only been considered on framing of issue under Section 9-A of the CPC as it stands amended in this State.
Law of Precedent - Clause 12 - Court - Jurisdiction of - Cause of action - Partly arising within jurisdiction of Court - Permission for filing suit - Held - For filing suit prior permission under clause 12 has to be obtained - Post facto grant of leave not permissible. - It is true that on failure to pass an order has resulted in some injustice to the plaintiffs. Leave under clause 12 however is not merely an equitable consideration. It is the sine qua non for filing the plaint in this Court under circumstances set out in clause XII. Apart from that, as has been decided by this Court leave has to be taken before presenting the plaint or filing the suit. There can be no post facto grant of leave. Once this be the case, there arise serious triable issues.
2. The controversy, however, arises on account of Clause 12 of the Letters Patent of this Court. Clause 12 reads as under :--
"And we do further ordain that the said High Court of Judicature at Fort William in Bengal (Madras) (Bombay), 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 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 ................................."
3. From a reading of the said clause as reproduced above, and from the pleadings it would be clear that it is not the case of the plaintiffs that the entire cause of action has arisen within the jurisdiction of this Court. If that had been the case, no leave is necessary under Clause 12 of Letters Patent. The pleadings in the plaint show that part of the cause of action has arisen within the jurisdiction of this Court. Once that be the case the suit could not have been instituted without first taking permission under Clause 12. It is only on taking permission that the plaint could have been lodged. In these circumstances, the clause in the contract would be of no assistance to the plaintiffs. That would have come in aid if the suit has been filed and leave taken and a plea was raised, that this Court had no jurisdiction.
4. It is true that on failure to pass an order, has resulted in some injustice to the plaintiffs. Leave under Clause 12 however, is not merely an equitable consideration. It is the sine qua non for filing the plaint in this Court under circumstances set out in Clause XII. Apart from that, as has been decided by this Court leave has to be taken before presenting the plaint or filing the suit. There can be no post facto grant of leave. Once this be the case, there arise serious triable issues.
5. In the light of that the defendants are entitled to unconditional leave to defend the suit. Suit transferred to list of commercial causes. Defendants to file written statement within 30 days from today. Inspection and discovery within four weeks thereafter.
Summons for judgment disposed of accordingly. No order as to costs.
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