SARASWATI DASEE Vs. BIRAJ MOHINI DASEE

JUDGEMENT

(1.) THE plaintiff has instituted this suit against her mother and two brothers on allegations that necessitate leave of the Court, under Clause 12 of the Letters Patent, before the reception of the suit. In her plaint, the plaintiff has stated that such leave is necessary, but no such leave, however, is endorsed on it. Her attorney has sworn that he presented the plaint for admission on the 7th April 1911 and asked for leave which he says was granted but through some inadvertence, the leave so granted has not been endorsed on the plaint. THE attorney s statement is not challenged nor do I think there is any reason to doubt the truth of it. THE leave, I presume, was declared by the Registrar subject to its ratification by the Court for there is no allegation that the plaint was ever placed before a Judge of this Court for such leave. By her present application, the plaintiff makes the prayer that leave under Clause 12 of the Charter may be endorsed on the plaint as of the date on which it was presented for admission, or in the alternative that the plaintiff may have leave to withdraw this suit, with liberty to her to file a fresh suit on the same cause of action, and all the proceedings had and orders made in this suit should be treated as had and made in the fresh suit. For the prayer in the alternative the concluding remarks of the Fall Bench decision in Laliteswar Singh v. Rameswar Singh 34 C. 619 at p. 627; 2 M.L.T. 406; 6 C.L.J. 405; 11 C.W.N. 649 furnish sufficient authority, but the learned Standing Counsel, who appears for the plaintiff, claims that either the endorsement of leave should be made now or objection to the plaint on the score of want of leave must be considered to have been waived by the defendants by reason of the steps they have taken in the suit, since the reception of the plaint. For the latter preposition, he quotes the authority of King, A.J. v. Secretary of State for India in Council 35 C. 394; 7 C.L.J. 441; 12 C.W.N. 705 in which Fletcher, J., expressed the view that where there was no want of jurisdiction in the Court over the subject-matter of the action, but leave under Clause 12 of the Letters Patent was required before the suit could be entertained, the objection that such leave had not been properly obtained might be waived, and would be considered to have been waived if the defendant had taken steps in the furtherance of the suit to its trial. In the present suit, the defendants have not only filed their written statement, but have moved several steps towards the trial, the last being their entering on cross-examination of the plaintiff who is being examined on Commission. THE case above referred to applies with force to the circumstances of this case. THE granting of leave is a judicial act performable by a Judge alone of this Court, as has been laid down in the Fall Bench decision in Laliteswar Singh v. Rameswar Singh 34 C. 619 at p. 627; 2 M.L.T. 406; 6 C.L.J. 405; 11 C.W.N. 649. In the present case, the leave declared by the Registrar is not a proper leave, and, therefore, I cannot order any leave to be endorsed on the plaint as of the date on which it was presented for admission, but following the decision of Fletcher, J., I am bound to hold that the objection that such leave has not been obtained has been waived by the defendants. In this latter view, this application need not have been made. THE suit will proceed. THE plaintiff must pay the costs of this application to the defendants. I allow one set of costs only against the plaintiff.