1 IN THE HIGH Court OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.975 OF 2009 IN SUIT NO.3659 OF 2003 Subodh K.Shetye ...Plaintiff vs. Prabhakar Mehta ...Defendant Mr.Kunal Cheema for the plaintiff Mr.Y.E.Tawaria for the defendant CORAM :A.S.OKA,J. DATE : DECEMBER 7, 2009 P.C. 1 Heard the learned counsel for the defendant in support of this chamber summons. I have heard the learned counsel for the plaintiffs who has opposed the chamber summons. The prayer in the chamber summons is for rejecting the plaint in exercise of power under clause (d) of Rule 11 of Order VII of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). 2 The learned counsel for the defendant invited my attention to the averments made in the plaint. She pointed out that a leave under clause XII of the Letters Patent was not applied for and was not granted. She submitted that even taking the averments in the plaint as correct, no part of cause of action for filing the suit 2 has arisen within the limits of ordinary original jurisdiction of this Court. She pointed out that though in the cause title, the address of the defendant at Bombay is stated, there is no averment made that it is a residential address of the defendant. She pointed out that the averments made in the plaint and documents annexed to the plaint show that the goods were exported to the defendant at his address at 421, East Bay, Estate Street, App.19, Albambra CA 91801. She submitted that no part of cause of action has arisen within the limits of ordinary original jurisdiction of this Court. She submitted that even assuming that a part of cause of action has arisen within the ordinary original jurisdiction of this Court, in absence of leave under clause XII of the Letters Patent, the plaint will have to be rejected. She relied upon a decision of this Court in the case of Noorjahan Vs. Sadrivddin [1993 (1) Bom.C.R. 501] which holds that leave has to be obtained before the institution of the suit. The learned counsel for the plaintiffs had relied upon the Judgment and Order dated 31 st July 2006 passed by the Division Bench of this Court in Appeal No.469 of 2006. He submitted that the Division Bench has already held that the entire cause of action has arisen in Bombay. He, therefore, submitted that there is no merit in the chamber summons. 3 The learned counsel for the defendant submitted that 3 the challenge before the Division Bench was to an order passed by the learned Single Judge of this Court on an objection raised in execution proceedings of the ex parte decree passed in the present suit. She pointed out that after decision of the Division Bench, the ex parte decree has been set aside by this Court and the parties have been relegated to the stage before passing the ex parte decree. She placed reliance on the decision of the Division Bench in case of Principal Collector of Customs and another Vs. M/s.Capital Colour Lab. Pvt.Ltd.[ 2007(6) Mh.L.J. 225]. She also placed reliance on the decision of Kerala High Court dated 8 th July 1985 in case of Beerankoya Haji Vs.P.P.Mohammedkutty and submitted that after the ex-parte decree has been set aside, the decision of the Division Bench cannot be considered by this Court in as much as the parties have been relegated to the stage of the suit before the date on which ex- parte decree has been passed. She submitted that the Division Bench has made adjudication on the issue raised in execution of the ex-parte decree and after the ex parte decree is set aside, observation made by the Division Bench cannot bind this Court. 4 I have carefully considered the submissions. As stated earlier, an ex-parte decree was passed in the suit. An execution application was moved by the plaintiffs. In execution an objection was raised by the 4 defendant to the jurisdiction of this Court to pass a decree. Against the order passed in the execution application on this objection, the defendant preferred an appeal being appeal no.469 of 2009 before the Division Bench of this Court. Perusal of the paragraph 4 of the Judgment in Appeal shows that a specific contention was raised by the defendant (appellant) that the plaintiffs did not obtain a leave under clause XII of the Letters Patent and that the Court did not have jurisdiction to entertain the suit. It was submitted that on account of inherent lack of jurisdiction, the decree was nullity. Perusal of the paragraph 6 of the decision of the Division Bench shows that the Division Bench came to the conclusion that the cause of action for filing the suit had entirely arisen in Mumbai and therefore it was not necessary to obtain a leave under clause XII of the Letters Patent. Relevant part of the Judgment reads thus : 5...This being so, in our view, the learned Judge was not in error in dismissing the Chamber Summons on facts, though he has not stated specifically that leave under clause 12 was not necessary. The fact, however, remains that the cause of action entirely arose in Mumbai and that is why the Chamber Summons has been dismissed on the facts of the case. (Emphasis added) 5 5 Thus, there is a finding recorded by the Division Bench on perusal of the averments made in the plaint that the entire cause of action had arisen in Mumbai and therefore, a leave under clause XII of the Letters Patent was not necessary. It is true that thereafter the ex- parte decree has been set aside. However, the finding recorded by the Division Bench on perusal of the plaint which is referred to above remains binding on this Court. In any event the propriety requires that this Court should not take a different view. 6 What is invoked by the defendant is clause (d) of Rule 11 of Order VII of the said Code. For deciding the prayer for rejection of the plaint under Clause (d), only the averments in the plaint are required to be seen. The Division Bench after perusal of the plaint has recorded a finding that the entire cause of action has arisen in Mumbai and that a leave under clause XII of the Letters Patent was not necessary to be obtained. 7 Therefore, the prayer for rejection of the plaint cannot be granted. Even if payer for rejection of plaint is not granted, the defendant can always raise the issue of territorial jurisdiction of this Court in the written statement by raising appropriate factual contentions. At appropriate stage, after evidence is adduced, the said issue can be decided. 6 8 Hence, there is no merit in the chamber summons and the same is accordingly dismissed. 9 Hearing of the chamber summons no.1077 of 2009 taken out by the plaintiff for amendment of the plaint is deferred for a period of six weeks from today. JUDGE