JUDGMENT Fletcher, J. - The present application comes before roe in a somewhat unusual manner. This suit is brought by the Plaintiff to recover damages for wrongful dismissal. The Plaintiff in his plaint alleges that his cause of action arises in part in Calcutta and prays for leave under cl. 12 of the Letters Patent to institute this suit. Leave to institute this suit was granted by the Master. The Defendant duly filed his written statement and applied to the Court for a commission to examine certain witnesses. Upon this application coming on for hearing before Woodroffe, J., he directed the matter to be set down for argument as to whether or not the suit is validly pending in this Court, having regard to the fact that leave to institute the suit was obtained from the Master. Now, it has been decided by a Special Bench in this Court in the case of Laliteswar Singh v. Maharajah Sir Rameshwar Singh Bahadur 11 C. W. N. 649 : s. c. I. L. R. 34 Cal. 619 (1907) that the granting of leave under cl. 12 of the Letters Patent being a Judicial Act cannot be delegated to the Registrar or Master and that the rules of the High Court, in so far as they authorise the Registrar or Master to grant such leave, are ultravires. 2. But neither in that case nor in the present case, until I pointed out the question to counsel, was it argued whether the objection that the leave was granted by the Registrar or Master is one which can be waived. If the objection is one that cannot be waived, the matter is one of far reaching consequences. It means that in every case where the suit has proceeded even to judgment, the Defendant can turn round and say that the whole proceedings are a nullity. Fortunately, in my opinion, this is not the result. The case is, I think, covered by the authority of Moore v. Gamgee 25 Q. B. D. 244 (1890) which though not referred to in the argument before me is not distinguishable from the present case. In that case, there was an application by the Defendant for a prohibition directed to the Judge of the County Court of Surrey to prohibit the proceedings in an action by the Plaintiffs against the Defendant in that Court. 3. In that case, there was an application by the Defendant for a prohibition directed to the Judge of the County Court of Surrey to prohibit the proceedings in an action by the Plaintiffs against the Defendant in that Court. 3. By the County Courts Act, 1888 (51 and 52 Vict. c. 43) sec. 74, it is provided that--" every action or matter may be commenced in the Court within the district of which the Defendant or one of the Defendants shall dwell or carry on his business at the time of commencing the action or matter or it may be commenced by leave of the Judge or Registrar in the Court within the district of which the Defendant or one of the Defendants dwelt or carried on business at any time within the six calendar months next before the time of commencement or with the like leave in the Court in the district of which the cause of action or claim wholly or in part arose." 4. At the hearing of that action, on the second day, the solicitor for the Defendant took the objection that the Court had no jurisdiction to entertain the action on the ground that the Defendant did not dwell or carry on his business within the district of the Court at the time of the commencement of the action and no leave had been obtained to bring the action in that Court. The County Court Judge held that the Defendant by appearing and contesting the action had waived the objection and proceeded with the hearing. The Defendant accordingly applied to a Divisional Court of the Queen's Bench Division (Cave and A. L. Smith, JJ.) for a prohibition to prohibit the proceedings in that action. Now, pausing here for a moment, it will be noticed that sec 74 of the County Courts Act is very similar to cl. 12 of the Letters Patent. Doubtless, in cases under sec. 74 of the County Courts Act, leave may be granted by the Judge or the Registrar, whereas under cl. 12 of the Letters Patent leave must be granted by a Judge. 12 of the Letters Patent. Doubtless, in cases under sec. 74 of the County Courts Act, leave may be granted by the Judge or the Registrar, whereas under cl. 12 of the Letters Patent leave must be granted by a Judge. But in Moore v. Gamgee 25 Q. B. D.244 at p. 246 (1890) no leave at all had been granted and there can be no distinction between the case where no leave at all has been granted and a case where leave had been granted by a person not authorised to grant leave. 5. The judgment of the Court in Moore v. Gamgee 25 Q. B. D.244 at p. 246 (1890) refusing the application for a prohibition was delivered by Cave, J., who, in the course of his judgment, made the following pertinent remarks :-- There are two senses in which it may be said there is no jurisdiction to entertain an action--first, where under no circumstances can the Court entertain the particular kind of action as in cases within sec. 56 of the Act--that is libel slander, seduction or breach of promise of marriage; secondly, there are the cases provided for by sec. 74 where, under certain circumstances, leave can be given to bring an action which the Court could not otherwise entertain; in these cases there is no want of jurisdiction over the subject-matter of the action but leave is required in the particular case, before the Court can entertain the action and it is an objection which may be taken to the hearing of the action that the Defendant does not dwell or carry on his business within the jurisdiction and leave has not been obtained. In the present case, the plaint was issued and the case was heard and partly decided before the objection was taken. There is always some difficulty in drawing an analogy between proceedings in the High Court and proceedings in the County Court because the High Court has jurisdiction by the common law whereas the jurisdiction of the County Court is entirely created by statute but there is some analogy between such a case as the present and a case in the High Court where it is sought to serve a writ on a Defendant who is resident abroad. In such a case, in the High Court, if the Defendant is served and takes any step in the action except in moving to set aside the service, he waives the objection of want of jurisdiction and cannot be heard; but, a conditional appearance may be entered which has not the effect of waiving the Defendant's right to object to the jurisdiction. In my opinion, the case is much the same in the County Court......I think, therefore, that the objection of the Court may be waived by taking any step in the proceedings before applying to dismiss the action and this view is borne out by a case which was not cited in argument In re Jones v. James 19 L. J. (Q. B.) 257 (1850). 6. The remarks of the learned Judges in Moore v. Gamgee 25 Q. B D. 214 (1890) appear to me to apply to a case where leave has been purported to be granted by some person other than a Judge under cl. 12 of the Letters Patent. 7. In such a case no leave within the meaning of cl. 12 has been granted. 8. The present suit is one where there is no want of jurisdiction in this Court over the subject-matter of the action, but leave under cl. 12 of the Letters Patent is required before the Court can entertain the suit. The Defendant in this suit ought to have known as a matter of law that there was a want of jurisdiction unless leave as provided by cl. 12 of the Letters Patent had been granted. He has filed his written statement and applied for a commission to examine witnesses. By taking these steps, the Defendant has, in my opinion waived his objection to the jurisdiction. The application by the Defendant for a commission to examine witnesses must be set down for argument on its merits.