1. The Suit was filed without leave under Clause XII of the Letters Patent. The Defendants filed Notice of Motion No. 2208 of 2009 under Order 7 Rule 11 of the Code of Civil Procedure 1908 (“CPC”) saying that this Court had no jurisdiction and the plaint had to be rejected. On 19th October 2015, the parties took an order before a learned Single Judge on the Defendants’ Notice of Motion ‘returning the plaint’ to the Plaintiffs for filing in an appropriate Court. The order makes it clear that the Defendants themselves submitted before the learned Single Judge that the Defendants’ submissions were for return of a plaint. The Plaintiffs, for their part, seem to have agreed to this; the order seems to have received the accord of both sides. Consequently the plaint came to be ‘returned; for filing in an appropriate Court.

2. The relevant parts of the order read thus :

1. Though the relief in this notice of motion is for dismissal of the suit for want of jurisdiction under Order VII Rule 11 of the Code of Civil Procedure, the counsel for the applicants at the outset submitted that the submissions that he would make is basically for return of the plaint to the plaintiffs due to the plaintiffs not having obtained Leave under clause XII of the Letters Patent before lodging the plaint and second point assuming for the sake of argument, the court holds that this court has jurisdiction or no leave was necessary then for dismissal of the suit on the ground of limitation.

2. ... ...

3. ... ...

4. ... Counsel for the defendants did concede that part of cause of action indeed arose within the ordinary original civil jurisdiction of this court though in the affidavit in support the applicants have stated no part of cause of action arose within Mumbai. As only part of the cause of action arose within the jurisdiction of this court, Leave of this court under Clause XII of Letters Patent was necessary which the plaintiffs had not taken.

5. After going through the documents and considering the submissions made by the defendants’ counsel ... counsel for the plaintiffs in fairness stated that the plaintiffs should have obtained Leave under clause XII of the Letters Patent before the suit was lodged.

6. In view thereof, the plaint is returned to the plaintiffs for filing in the appropriate court.

(Emphasis added)

3. This could never have been done. Order 7 Rule 10 of the CPC, which deals with return of plaint, has no application at all to a Chartered High Court in exercise of its ordinary or extraordinary original civil jurisdiction. Order 49 Rule 3 of the CPC says in terms that Rule 10 and Rules 11(b) and 11(c) of Order 7 shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.

4. The only provision for a ‘return of a plaint’ is contained in Order 7 Rule 10 of the CPC:

10. Return of plaint

(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

Explanation.—For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

(2) Procedure on returning plaint.—On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

5. Now this provision is specifically excluded from application to a Chartered High Court by Order 49, Rule 3:

Order 49 — Chartered high courts

1. ... ...

2. ... ...

3. Application of rules

The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:—

(1) rule 10 and rule 11, clauses (b) and (c), of Order VII;

(2) rule 3 of Order X;

(3) rule 2 of Order XVI;

(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of