: 1 : 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 CHAMBER SUMMONS NO.1535 OF 2006 CHAMBER SUMMONS NO.1535 OF 2006 CHAMBER SUMMONS NO.1535 OF 2006 IN IN IN SUMMARY SUIT NO.13 OF 2006 SUMMARY SUIT NO.13 OF 2006 SUMMARY SUIT NO.13 OF 2006 Sri Adhikari Brothers Television Network Limited .. Plaintiffs. Versus Ad Merchant India (P) Ltd. & Anr. .. Defendants. Mr.Pankaj Thatte for plaintiffs. Mr.D.Mitra for applicants in chamber summons and for defendant Nos.1 and 2. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 15th October, 2008. DATE : 15th October, 2008. DATE : 15th October, 2008. P.C. :- P.C. :- P.C. :- 1. The plaintiffs have filed the suit against defendants for recovery of money being summary suit. In the said suit, plaintiffs took out summons for judgement No.218 of 2006. The said summons for judgement was : 2 : decided by the court and that the defendants were granted unconditional leave to defend by order dated 10.10.2006. Thereafter, the defendants have taken out this chamber summons for following reliefs :- 2. Prayer Clause (a) : that the plaint filed by the plaintiffs in the above suit be rejected and in the alternative the plaint so filed be returned for presenting before the Hon’ble Court having jurisdiction to hear the above suit. 3. On a court’s query, learned Advocate for the defendants submitted that he is pressing for first part of the prayer i.e. prayer regarding rejection of the plaint and defendants are giving up the later part of the prayer i.e. return of the plaint. This submission of the learned Advocate for the defendants was noted and it is in this situation, learned Advocate on both the sides were heard. 4. Learned Advocate for defendants attempted to point out that no part of the cause of action has arisen within the jurisdiction of this court and, therefore, this court has no jurisdiction to try and entertain the suit. He had : 3 : also submitted that even if it is accepted that the part of the cause of action had arisen within the territorial limits of this court, it was necessary for the plaintiffs to obtain leave under clause 12 of the Letters Patent and in the absence of such a leave, the suit cannot be proceeded with and that is how he rested his submissions. He had taken me through the affidavit-in-support of the chamber summons and had contended that in the absence of leave under Clause 12 of the Letters Patent, this court has no jurisdiction and, therefore, the plaint should be rejected. While doing so, he had taken me through the order dated 10.10.2006 and, in particular, paragraph 3 and had pointed out that the learned Judge while deciding the Summons for Judgement, in principle, had accepted the contention of the defendants that the leave under Clause 12 of the Letters Patent has not been obtained. Learned Advocate Mr.Mitra appearing on behalf of the defendants had relied upon 2 judgements in the cases of (i) Saleem (i) Saleem (i) Saleem Bhai v/s.State of Maharashtra reported in 2003-AIR Bhai v/s.State of Maharashtra reported in 2003-AIR Bhai v/s.State of Maharashtra reported in 2003-AIR (SC)-0-7592 and (ii) P.R.Sukeshwala v/s.Devadatta (SC)-0-7592 and (ii) P.R.Sukeshwala v/s.Devadatta (SC)-0-7592 and (ii) P.R.Sukeshwala v/s.Devadatta V.S.Kerkar reported in 1995-BCR-4-89 V.S.Kerkar reported in 1995-BCR-4-89 V.S.Kerkar reported in 1995-BCR-4-89 to contend that an application under Order 7 Rule 11 of the Code of Civil Procedure can be entertained by the court to decide the question of rejection of the plaint. Learned Advocate for : 4 : the defendants also relied upon the judgement in the case of Golden Peakock Overseas Ltd. v/s. Ranjit Industries Golden Peakock Overseas Ltd. v/s. Ranjit Industries Golden Peakock Overseas Ltd. v/s. Ranjit Industries reported in 2005-ILRDLH-14-935. reported in 2005-ILRDLH-14-935. reported in 2005-ILRDLH-14-935. However, in the course of further arguments, he revoked the said reliance and as such, this court has not gone through the judgement in the case of Golden Peakock Overseas Ltd. (supra). Golden Peakock Overseas Ltd. (supra). Golden Peakock Overseas Ltd. (supra). 5. After having considered the rival contentions, I am inclined to observe that the chamber summons is required to be dismissed. The reasons are as follows :- 6. Since the defendants have contended that this court should decide the question of rejection of the plaint, it became necessary for the court to look into the matter, from the stand point of provisions of Order 7 Rule 11 of the C.P.C. Learned Advocate for the defendants could not point out from the provisions of Order 7 Rule 11 of C.P.C. that non obtaining leave under Clause 12 of Letters Patent constitutes a ground for the grant for rejection of the plaint. It is in these circumstances, the stand taken by the defendants that in the absence of leave under Clause 12 of Letters Patent, the plaint should be rejected cannot be accepted. : 5 : 7. The learned Judge, who decided the summons for judgement on 10.10.2008 in clear terms has observed that the leave under Clause 12 of Letters Patent was not obtained and that entitled the defendants to defend the suit without putting them to any terms. This will go to show that at one stage, this court had considered the question of grant of obtaining/non-obtaining leave. In any case, merely because the plaintiffs have not obtained leave under Clause 12 of the Letters Patent, cannot be a ground to reject the plaint that being a matter of technical compliance. In my view, such a leave can be obtained even at a later stage and the defendants have been granted unconditional leave to defend. Even otherwise, if it is the contention of the defendants that this court has no jurisdiction to try and entertain this suit, such an application could be filed by the defendants by raising the preliminary issue as set out in Section 9(A) of the Code of Civil Procedure. Defendants can also raise the question of jurisdiction by putting it in their written statement and in that case, the court may consider the question of jurisdiction and decide the matter. It is in these circumstances, the stand taken by the defendants that the plaint deserves to be rejected, cannot be accepted. : 6 : 8. For the reasons mentioned aforesaid, the chamber summons is dismissed. It is a fit case where the defendants should pay costs of the chamber summons to the plaintiffs quantified in the sum of Rs.5,000/- before taking up any further proceedings in the suit. Hence the order :- O R D E R O R D E R O R D E R i) Chamber summons is dismissed. ii) Defendants to pay to the plaintiffs quantified costs of Rs.5,000/-. Costs condition precedent for taking out any further proceedings in the suit by the defendants 9. After the aforesaid order was passed, learned Advocate for defendants sought stay of the operation of this order. In my view, considering the nature of the order passed, there is no question of granting stay of the order. Request rejected. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)