Lakshmi vs A. Ganesan and Others

M.M. Sundresh, J.—These Original Side Appeals have been preferred by the appellant, being aggrieved against the dismissal of Original

Application Nos. 3564, 3565 and 3566 of 2009 in C.S. No. 85 of 2008 and allowing O.A. No. 989 of 2008 in C.S. No. 85 of 2008, vide,

order dated 15.03.2012. Facts in brief:

2.1. Some of the suit properties are situated within the territorial jurisdiction of this Court and some outside of it. Alleging that the suit properties

are the joint family properties, the appellant filed a suit in C.S. No. 85 of 2008 seeking partition and separate possession. At the time of

presentation of the plaint, it was filed along with an application seeking leave to sue. The Registry has returned the plaint as well as the application

filed seeking leave. However, the appellant made an endorsement stating that no leave is required and consequently, she did not re-present the

application seeking leave. The suit was duly numbered.

2.2. The first respondent, who is the father of the appellant, filed an application in Application No. 989 of 2008 in C.S. No. 85 of 2008 seeking to

reject the plaint. The appellant, in turn, filed applications in Original Application Nos. 3564, 3565 and 3566 of 2009 in C.S. No. 85 of 2008

seeking leave to institute the suit, to condone the defective presentation of the plaint without obtaining the leave under Clause 12 of the Letters

Patent and to condone the delay of 297 days in representing the leave to sue application in Diary No. 1627 of 2008 respectively.

2.3. The learned single Judge, by an elaborate order, dismissed the applications filed by the appellant and allowed the application filed by the first

respondent herein. Aggrieved against the said common order, the appellant has come before us.

Submissions of the Appellant:-

The learned counsel appearing for the appellant would submit that the defect is a curable one. The appellant has not re-presented the plaint as she

was under the misconception that no such application is required. The learned single judge ought to have allowed the applications considering the

scope and ambit of Clause 12 of the Letters Patent. The suit being one for partition, the cause of action is a continuing one. Therefore, the appeals

will have to be allowed.

Submissions of the Respondents:-

Per contra, the learned counsel appearing for the respondents would submit that admittedly the appellant has not sought for leave. For the reasons

known to her she did not press the application filed for seeking leave. She filed the application thereafter when the suit was numbered and when

the first respondent has filed an application under Order VII Rule 11 of the Civil Procedure Code. The suit as filed is not maintainable in law and

facts. When some of the suit properties are situated outside the jurisdiction of this Court, a leave is mandatory. Therefore, there is no merit in the

appeals and accordingly, they should be rejected.

DISCUSSION:-

5.1. It is not in dispute that under Clause 12 of the Letters Patent, when some of the suit properties are situated out of the territorial jurisdiction of

this Court, leave ought to have been obtained. The learned counsel appearing for the appellant has also fairly accepted the settled position of law.

Perhaps that is the reason why the appellant has filed the applications during the pendency of the suit. In the case on hand, the appellant did file an

application seeking leave. However, for the reasons known to her, she did not re-present the said application, but managed to number the suit. In

such a situation, the applications filed pending the suit by the appellant are not maintainable in law. When a leave is a condition precedent, the same

cannot be cured thereafter. Therefore, in such view of the matter, we do not find any error in the orders passed by the learned single Judge

dismissing the applications filed by the appellant and consequently allowing the application filed by the first respondent.

5.2. However, we find force in the submission made by the learned counsel appearing for the appellant that the suit as filed being one for partition

and separate possession, the cause of action is a continuous one. Further more, a party is entitled to file a separate suit by way of a presentation of

the plaint on the very same cause of action, when the earlier one was rejected under Order VII Rule 1 of the CPC as per the provision contained

in Order VII Rule 13. Hence, considering the facts and circumstances of the case and taking note of the scope and ambit of Order VII Rule 13 of

the Civil Procedure Code, while dismissing these Original Side Appeals, we grant liberty to the appellant to file a fresh suit on the very same cause

of action as shown in the plaint in C.S. No. 85 of 2008. Accordingly, all these Original Side Appeals are dismissed giving liberty to the appellant to

file a fresh suit in accordance with law on the very same cause of action as shown in the plaint in C.S. No. 85 of 2008. No costs.