Bombay High Court
Union Bank Of India vs Sunpac Corporation And Ors. on 6 March, 1986
Equivalent citations: AIR1986BOM353, (1986)88BOMLR148, AIR 1986 BOMBAY 353, (1986) MAH LJ 237, (1986) 88 MAHLR 148, (1986) MAHLR 736
ORDER
1. In accordance with the practice followed so far, the office refuses to admit the plaint since the plaintiff before presenting the plaint had not obtained leve of the Court under Cl. 12 of the Letters Patent and insists upon returning the plaint to the plaintiff for fresh presentation after obtaining the said leave.
2. There is no dispute that for filing the suit in question in this Court, leave under the said provision is necessary. The only question to be considered is whether it is necessary for the plaintiff to obtain it before presenting the plaint and whether it will not be a sufficient compliance of the provision if the same is obtained before the plaint is admitted to the register.
3. As per the present practice the plaint is presented to the Prothonotary & Senior Master of this Court who is the officer appointed for the acceptance of the plaint as per O. IX, R. 1, of the Civil, P.C. (hereinafter referred to as the Code). Then follows the next stage mentioned in R. 2 of the said Order, namely, the entry of the particulars of the suit in the register of suits and their seriatim numbeing according to the order in which the plaints are admitted. O.V.R. 1 then states that it is only when the suit has been duly admitted that the summons is to be issued to the defendant or defendants as the case may be. This is also clear from the provisions of O.VII,R. 9.
4. The Code itself therefore envisages two stages - first of the presentation of the plaint and the next of the admission of the plaint. The suit is not admitted to the register of the suits and a number given to it merely onthe presentation of the plaint. After the presentation the plaint is scrutinized. If ther are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter or procedure. It is only after the defects are removed that it becomes eligible for an entry and a number in the register of suits. One of the defects can be the absence of leave of the Court to institute the suit where it is necessary including leave under Cl. 12 of the Letters Patent. So long therefore as the plaint is not admitted and entered in the register of suits all defects including that of the absence of leave under the said clause can be removed without returning the plaint. There is no questin of returning the plaint. There is no question of returing the plaint which si not admitted. It simply remains under objection till it is admitted.
5. It is the confusion between the two stages viz. of the presentation of the plaint and of its admission to the register of suits after the removal of the defects if any which is responsible for the faulty procedure adopted by the ofice. In some cases this procedure may affect the period of limitations which under the Limitation Act runs from the date of the presentation of the plaint and not from the date of its admission. A reference in this behalf can usefully be made to Ramgopal Chunilal v. Ramsarup Baldevdas.
6. Hence I direct the office not to return the plaint for want of leave under Cl. 12 of the Letters Patent but only require the plaintiff to obtain the leave and admit it to the register when the leave is obtained. Order accordingly.