SRI RAJAH RAO VENKATAKUMARA MAHIPATHI SURYA RAO BAHADUR VARU, MAHARAJA OF PITHAPURAM Vs. SRI RAJAH RAO VENKATA MAHIPATHI GANGADHARA RAMA RAO BAHADUR

JUDGEMENT

(1.) This is an appeal against the order of Srinivasa Aiyangar, J., refusing to revoke an order giving leave to sue on the Original Side of this Court. The plaintiff is suing to recover from the defendant possession of certain zamindari property. All the property except a bungalow called "Dunmore House" is outside the jurisdiction of this Court. He filed his suit on the Original Side on what is stated to be the last day before it would be barred here by limitation. Leave to sue was asked for ex parte without notice to the defendant, and, in view of the urgency of the matter, was granted by the learned Judge. Later on the defendant put in an application to revoke the leave, principally on the ground that the inclusion of "Dunmore House" was specious and mala fide, being a mere device to give the High Court a fictitious jurisdiction in order to get round the bar of limitation, since the suit was already barred by time in the mufassal and could not have been entertained unless this Court was persuaded to entertain it. The learned Judge has refused to revoke his order and the defendant comes up here on appeal.

(2.) The learned Judge in his order says, "1 cannot possibly hold the inclusion of the claim in respect of Dunmore House as bona fide" and has "practically no doubt" that Dunmore House" "has been included in the plaint merely for the purpose of making it appear that some portion of the land claimed was situate within the jurisdiction of this Court," and he holds that the. present case is "undoubtedly a fit and proper case in which, ordinarily speaking, leave to institute the suit should hot have been granted and therefore a proper case in which the leave granted ex parte should be revoked". But because of some special circumstances he refused to revoke his order, these circumstances being chiefly (a) concern for the plaintiff because he had paid a large Court-fee which he will lose as it has not been the practice of this Court to return a plaint, (6) concern for the defendant because he may, if the leave is revoked, be driven to face another suit in another Court, and (c) the desirability that the suit should not be disposed of by mufassal Subordinate Judge. it will be observed that these special circumstances have nothing to do with the question of jurisdiction or limitation. The first is an appeal ad miseri cordiam. The second is not put forward by the defendant himself and the third pre-supposes that the suit is maintainable, that is, is not barred by limitation in the mufassal Court, while the ex parte order was obtained on the footing that the suit would be barred by time in the mufassal Court.

(3.) However the main point argued before us is whether an appeal lies at all against such an order. An order refusing to revoke a grant ex parte of leave to sue is in essence an order granting after contest leave to sue. Now, if the plaintiff's suit was really on the date of presentation here barred by time in the mufassal, and if the ex parte leave to sue ought not, as the learned Judge holds, to have been given in the first instance, but if nevertheless the learned Judge has decided finally, even if he has decided wrongly, that he has jurisdiction to entertain the suit, then, plaintiff's suit being on a proper application of the law still-born the grant of leave to sue is giving life to a dead suit and inflicting on defendant an injury prima facie irreparable, unless an appeal lies.