BHODA JAL MEHTA Vs. HOMI FRAMROZE MEHTA

JUDGEMENT

(1.) 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) 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) 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) 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.