BIMAL SINGH KOTHARI Vs. MUIR MILLS CO LTD

JUDGEMENT

(1.) This is an appeal from an order made by S. R. Das Gupta J., on January 5, 1951, revoking leave granted to the plaintiffs to institute the suit under Clause 12 of the Letters Patent. That clause provides that if the cause of action shall have arisen in part within the local limits of the Ordinary Original Jurisdiction of this Court, the plaintiffs may file the suit with leave of the Court first obtained. The leave under this clause is a condition precedent to jurisdiction. Unless the condition is fulfilled by obtaining the necessary leave to sue, the Court will have no jurisdiction to entertain the suit. If the suit is instituted with the leave, and thereafter the leave is revoked, the Court will have no jurisdiction to try the suit. The revocation of leave deprives the plaintiff of his right to have his suit tried by the Court of his choice. The matter, therefore, is very serious to the plaintiff.

(2.) The granting and revocation of the leave is a matter in the discretion of the Court, to be exercised on well established judicial principles.

(3.) In our Court, the practice is that such leave is asked for at the time, of the presentation of the plaint to the Master. The Master goes through the plaint, and if he finds that the allegations in the plaint require that such leave should be obtained, he makes an endorsement on the plaint to the effect that such leave has been asked for. Then the plaint is presented before a Judge of this Court sitting on the Original Side for the grant of the leave. The Judge after perusal of the plaint grants such leave, if he thinks fit. But the whole thing in the first instance is done 'ex parte', and naturally so, because until the leave is granted, there is no suit filed, and, therefore, no question arises as to hearing the defendant on an application for granting the leave. If the defendant is so advised, he may make an application to the Court for revocation of the leave, and the matter is then heard on notice to the plaintiff, and suitable orders are made. If a case is made out, the leave granted is revoked.