IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. ORDINARY ORIGINAL CIVIL JURISDICTION. NOTICE OF MOTION No. 4147 of 2007 NOTICE OF MOTION No. 4147 of 2007 NOTICE OF MOTION No. 4147 of 2007 IN IN IN SUIT No.2643 of 2006 SUIT No.2643 of 2006 SUIT No.2643 of 2006 Laxmi N. Rane & Ors. ..Plaintiffs. Versus. Bhagirathi G. Rane & Ors. ..Defendants. Ms Nutan S. Moily, Advocate for the plaintiffs. Mr Bharat R. Zaveri, Advocate for the Defendant Nos. 1,5, 6 and 7. CORAM: V.C. DAGA,J. CORAM: V.C. DAGA,J. CORAM: V.C. DAGA,J. DATED: 07.02.2008. DATED: 07.02.2008. DATED: 07.02.2008. P.C.:- P.C.:- P.C.:- ---- ---- ---- 1. This notice of motion is taken out by the plaintiff seeking to recall order dated 23.8.2006 rejecting plaint for non removal of office objections and to restore the suit to the file of this Court with liberty to remove office objections within stipulated time. THE FACTS:- THE FACTS:- THE FACTS:- --------- --------- --------- 2. The factual matrix reveal that the plaintiffs filed suit for partition of properties claiming 1/9th share in the properties more particularly described in ( 2 ) Exh.A to the plaint (suit properties) on the footing that they are the heirs and legal representatives of the deceased Shri Narayan Ganpat Rane, who expired on 15.1.1999. 3. The suit properties were owned by the grand father Ganpat A. Rane. After his demise, their father inherited those properties and that after the death of their father,the plaintiffs are claiming equal share in the estate of the deceased with the defendants since their father died intestate. 4. It appears that the plaint was lodged with the Registry on 3.5.2006. It was under objection. Objections were notified. Some of the objections were removed by the plaintiffs. However, one of them leading to absence of leave to file suit under Clause (12) of the Letters Patent remained to be removed. With the result, the plaint stood rejected under Rule 986 of the Original Side Rules of this Court by self operative conditional order dated 28.8.2006; which operated on 23.8.2006 plaint resulted in rejection. The plaintiffs claim that they became aware of this fact in the month of October, 2007. That is how, the ( 3 ) present Notice of Motion is taken out by the plaintiffs seeking to recall order dated 23.8.2006 rejecting the plaint for non-removal of office objections with permission to remove office objections. CONTENTION: CONTENTION: CONTENTION: ---------- ---------- ---------- 5. The above prayer is strongly opposed by learned counsel for the defendant Nos. 1, 5, 6 and 7, contending that the plaint itself could not have been lodged without there being a prior leave under Clause 12 of the Letters Patent. He placed reliance on the two judgments of this Court, one in the case of A.I.R. 1989 S.C. 359 by Suresh J (as he then A.I.R. 1989 S.C. 359 by Suresh J (as he then A.I.R. 1989 S.C. 359 by Suresh J (as he then was) and Noorjahan Vs. 1993 MH.LJ 208 by S.M. was) and Noorjahan Vs. 1993 MH.LJ 208 by S.M. was) and Noorjahan Vs. 1993 MH.LJ 208 by S.M. Zunzunwala,J (as he then was). Zunzunwala,J (as he then was). Zunzunwala,J (as he then was). 6. In nutshell he submits that for want of leave under Clause 12 of the Letters Patent the Prothonotary and Senior Master was justified in rejecting the plaint. 7. In rejoinder, learned counsel for the plaintiffs submits that in view of the judgment of this Court in the case of Union Bank of India Vs. Syndicate Bank, 1986 MHLJ Bank of India Vs. Syndicate Bank, 1986 MHLJ Bank of India Vs. Syndicate Bank, 1986 MHLJ ( 4 ) 237 237 237 (P.B. Sawant,J) (as he then was), the leave under Clause 12 can be granted even after presentation of the plaint but before the plaint is admitted. She, thus, submits that it was not necessary to reject the plaint merely because leave was not obtained. She also relied on the judgment in the case of Crown Frozen Foods Vs. Silver Frozen Foods Crown Frozen Foods Vs. Silver Frozen Foods Crown Frozen Foods Vs. Silver Frozen Foods and another, 2006 (6) Bom.C.R. 771; and another, 2006 (6) Bom.C.R. 771; and another, 2006 (6) Bom.C.R. 771; wherein, there is reference to the directions which were issued by Mr Justice J.A. Patil (as he then was); whereunder practice of presenting the leave petition to the Chamber Judge ordered to be discontinued and the petitioners/plaintiffs are directed to present their petition or plaint in the registry which after numbering is ordered to be placed before the Court. However, practice of granting leave exparte and without notice to the defendant still continues. In that case, ultimate, order was passed to return the plaint to the respondent to file it in the appropriate Court since the leave was revoked. 8. Learned counsel for the plaintiffs thus, submits that at any rate plaint could not have been rejected. At the most, it could have ( 5 ) been returned. She, thus, submits that the order dated 8.8.2006 which became operative from 23.8.2006 needs to be set aside. CONSIDERATION:- CONSIDERATION:- CONSIDERATION:- ------------- ------------- ------------- 9. Having heard rival contentions and having seen the conflicting views of the learned Single Judges of this Court placed before me, one unanimous view is that the plaint cannot be rejected for want of leave. If the leave is not obtained then the plaint has to be returned to the plaintiff. If that be so, the order dated 8.8.2006 to which became operative from 23.8.2006 resulting in rejection of plaint is bad and illegal and contrary to the law laid down by this Court. 10. In the above view of the matter, order dated 8.8.2006 is quashed and set aside and proceedings are restored and remitted back to the file of Prothonotary and Senior Master with direction to pass the appropriate order considering the law laid down by this Court. 11. In the result, the Notice of Motion is ( 6 ) made absolute in terms of this order. (V.C.DAGA,J) (V.C.DAGA,J) (V.C.DAGA,J)