Leave under clause 12 of the Letters Patent cannot be granted after the plaint is admitted and entered in the register of civil suits.

1. This is the Plaintiff's application for leave under clause 12 of the Letters Patent.

2. The questions that arise in this case fall into two categories. The first is whether leave under clause 12 of the Letters Patent can be granted after the plaint is not only presented under rule 1 of Order IV but is also admitted and entered in the register under rule 2 of that Order of the Code of Civil Procedure, 1908. The second is whether the Plaintiff is entitled to leave under clause 12 even assuming the first question is answered in the affirmative. I have answered the first question in the negative and the second in the affirmative.

FACTS

3(A). It is admitted that the plaint was presented on 29.9.2004 that it was admitted on 10.12.2004 without leave having been sought or obtained.

(B)(i). The Defendant took out Notice of Motion No.745 of 2005 raising a preliminary issue of jurisdiction under Section 9(A) of the Code of Civil Procedure, 1908 and for a declaration that this Court does not have jurisdiction to try the present suit and consequently for an order that the plaint be returned under order VII Rule 10 of the CPC.

(ii). The Plaintiff filed an affidavit in reply dated 27.3.2006. In paragraph 15, the Plaintiff stated that it intended applying for leave under clause 12 of the Letters Patent which it did on 27.3.2006.

(iii). By an order dated 26.4.2006 in Notice of Motion No.745 of 2005, D.K. Deshmukh, J. recorded that the Defendant did not press prayer clause (a) of Notice of Motion wherein the Plaintiff sought the decision of this Court under Section 9(A) of the CPC on the preliminary issue as to jurisdiction. The learned Judge held that there was no power to grant an interim decree of declaration and that therefore there was no question of granting the other prayer for the return of the plaint. The learned Judge held that the plaint could be returned only on the application of the Plaintiff and not on the application of the Defendant. The learned Judge therefore dismissed the Notice of Motion.

(C). The Defendant filed Appeal No.896 of 2006 against the said order dated 26.4.2004. The Appeal was disposed of by an order dated 13.12.2006. The Division Bench while dismissing the Appeal held that it was open to the Defendant to make an application for rejection of the plaint under Order VII Rule 11 of CPC and that if such an application is made, it would be considered uninfluenced by the order dated 26.4.2004.

(D). 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.

4. This order is restricted to the Plaintiff's application for leave under clause 12 of the Letters Patent.

5. Mr.Doctor submitted that leave cannot be granted under clause 12 of the Letters Patent at this stage. He further submitted that leave under clause 12 in any event ought not to be granted as no part of the cause of action had arisen within the jurisdiction of this Court.

6. Admittedly, the suit was presented/lodged on 29.9.2004 and the plaint was admitted on 10.12.2004. The leave under clause 12 of the Letters Patent was not sought either before the plaint was presented or before it was admitted. WHETHER LEAVE UNDER CLAUSE 12 OF THE LETTERS PATENT CAN BE GRANTED AFTER A PLAINT IS ADMITTED AND ENTERED IN THE REGISTER OF CIVIL SUITS

7. I must express my appreciation for the thorough research and well presented submissions by both Mr.Andhyarujina and Mr.Doctor. I did at one stage during the arguments think that it was open to me to answer the first question on principle on a line of reasoning I will refer to later. However, having considered again all the authorities upon reserving the judgment, I find that it is not open to me to decide the matter on principle. I find myself bound by the judgments of this Court and it is on this basis that I must answer the question.

8. The judgment in Bai Amr