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2012 DIGILAW 1122 (MAD)

. v. .

2012-03-01

V.PERIYA KARUPPIAH

body2012
Judgment : V. PERIYA KARUPPIAH, J. 1. A.No.3564 of 2009:This application is filed by the applicants/plaintiffs to grant leave to the plaintiffs to institute the suit against the defendants for the properties in the schedule attached there under. 2. A.No.3565 of 2009:This is an application filed by the applicants/plaintiffs to condone the defective presentation of the plaint without obtaining the leave under clause-12 of the Letters Patent. 3. A.No.3566 of 2009:This application is filed by the plaintiffs seeking to condone the delay of 297 days in representation of leave to sue application in Diary No.1628 of 2008. 4. A.No.989 of 2008:This application is filed by the applicant/1st defendant seeking to reject the plaint. 5. A.No.1034 of 2008: This application is filed by the applicants seeking to strike out the applicants herein namely the defendants 5 and 6 in the suit as improperly added parties and consequently delete the properties mentioned as Item Nos.1 to 4 in Schedule B and Item Nos.1 to 3 in Schedule C to the plaint out of the suit proceedings. 6. O.A.No.138 of 2008: This application is filed by the applicants seeking to appoint a Receiver to manage and administer the businesses of the joint family in the properties fully described in the schedule to the judges summons. 7. O.A.No.139 of 2008: This application is filed by the applicants seeking to issue an order of interim injunction restraining the 1st and 2nd respondents, their agents, servants or anybody claim through them from alienating by way of sale, mortgage, lease or by any method of encumbrance the two items of Thiruvetriyur factory premises fully described in Schedule 'A' and 'D' to the judges summons. 8. A.No.633 of 2008: This application is filed by the applicants to appoint an Advocate Commissioner to visit the factories, corporate office and other properties fully described in Schedule A, B and C of the plaint, to take inventory of the plants, machineries, tools, implements and documents, ledgers, registers and other connected records, to note down the physical features with assistance of technical planners/experts and submit a report to this Court. 9. Heard Mr.N.S.Nanda Kumar, learned counsel for the applicants in the applications except A.No.989 of 2008 and Mr.T.Audiseshan, learned counsel for the 1st respondent/1st defendant except in A.No.989 of 2008 and Mr.P.Rajendra Kumar, learned counsel appears for the 2nd respondent/2nd defendant and K.Govindan, learned counsel for the 5th respondent/5th defendant. 9. Heard Mr.N.S.Nanda Kumar, learned counsel for the applicants in the applications except A.No.989 of 2008 and Mr.T.Audiseshan, learned counsel for the 1st respondent/1st defendant except in A.No.989 of 2008 and Mr.P.Rajendra Kumar, learned counsel appears for the 2nd respondent/2nd defendant and K.Govindan, learned counsel for the 5th respondent/5th defendant. The applicant in A.No.989 of 2008 is the 1st defendant/1st respondent in the other applications and the plaintiffs are the applicants in those applications. For convenient the ranks of parties in the suit is maintained. 10. The learned counsel for the applicants/plaintiffs would submit in his argument that the applicants are the plaintiffs in the suit and they have filed the suit against the defendants in respect of the joint family properties and business, for partition and separate possession of 1/6th share for each of the plaintiffs and for other reliefs. He would further submit that the properties were held by the 1st respondent/1st defendant as a Kartha of the joint family and along with him, the plaintiffs and the defendants 3 and 4 have constituted a Joint Hindu Family and therefore, each of the plaintiffs is entitled to 1/6th share in the suit properties. He would further submit that all the defendants and the applicants are residing within the jurisdiction of this Court and the major portions of properties and business are situated or being conducted within the jurisdiction of this Court. He would also submit that however, the properties in item Nos.3a to 3f and item No.6 of A schedule and item Nos. 2 to 4 in B schedule and item Nos.1 to 3 in C-schedule are situated outside the jurisdiction of this Court. He would also submit that the major part of cause of action arises within the jurisdiction of this Court in view of the fact that the parties are residing within the jurisdiction of this Court. In order to avoid technical plea, an application for leave to sue has been filed along with a plaint. He would also submit that the said application was assigned C.S.D. No.1628 of 2008 along with the plaint and it was returned by the Registry on 10.01.2008 and the said plaint and other applications seeking for interlocutory orders were represented on 23.01.2008, after retaining judges summons and affidavit for leave to sue with necessary endorsements made in the plaint docket for retaining the same. He would further submit that the Registry scrutinised the plaint and documents filed along with the plaint and since they are found in order, they numbered it as C.S.No.85 of 2008 and since caveat has been filed in the suit, the applications filed for appointment of receiver and Commissioner and for injunction were numbered as O.A.No.138, A.No.633 and O.A.No.139 of 2008 respectively and they were posted for hearing. He would also submit that the 1st respondent filed a counter in the said interlocutory application by raising the plea that the properties are situated outside the jurisdiction of this Court and therefore, leave to sue under clause-12 of the letters patent for Madras High Court ought to have been obtained before the institution of the suit. He would further submit in his argument that the 1st defendant had also filed an application in A.No.989 of 2008 to reject the plaint and had repeated the above contentionsas one of the grounds. He would further submit that the applicants/plaintiffs have been advised to file the present application for leave to sue under clause-12 of Letters Patent and the condonation of the defective presentation of the plaint without producing the application, seeking leave to sue in C.S.D.No.1628 of 2008 and also to condone the delay of 297 days, in representing the said leave to sue application. He would further submit in his argument that these applications have been filed in abundant caution even though the suit filed before this Court is even a suit for land or a suit where part of cause of action alone has arisen within the jurisdiction of this Court and since all the defendants are dwelling or carrying on business or personally working for gain, within the jurisdiction of this Court, no leave to sue is necessary. He would cite a judgment of this Court reported in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers) in support of his argument. He would therefore, submit that there would not be any prejudice caused to the defendants, if the leave to sue application is ordered to be received after condonation of delay in representation as well as the defect in presentation of the papers, even though no leave is required under clause-12 of the letters patent. He would therefore request the Court to pass suitable orders by allowing all the three applications. 11. He would therefore request the Court to pass suitable orders by allowing all the three applications. 11. He would further submit in his argument that the plaintiffs are the respondents in the application in A.No.989 of 2008. He would further submit that the said application has been filed knowing fully well that there is no necessity for obtaining leave in accordance with the judgment of this Court reported in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers) and therefore, no leave is necessary. He would also submit that the payment of Court fees under Section 37(1) of the Act on Ad valorem Court Fee cannot be a ground for rejection of the plaint since even it is found so, it would amount to an irregularity only. He would also submit that the Court fee has to be collected only upon the averments made in the plaint and there is no proof required at this stage for accepting Court fee paid by the plaintiff. He would also submit that the other grounds raised by the 1st defendant in this application to reject the plaint were based upon the factual aspect, those grounds could be only gone in a full fledged trial with the support of evidence. He would further submit that in view of the non-requirement of any leave to sue for the suit, the application filed by the 1st defendant to reject the plaint may be dismissed. 12. The learned counsel for the 1st respondent would submit in his argument that the plaintiffs have filed all the three applications in order to fill up the lacunae at the time of filing the suit. He would further submit that the suit presented by the plaintiffs is a suit for partition and separate possession and the properties are situated partly within the jurisdiction of this Court and partly outside the jurisdiction of this Court. He would also submit that the cause of action also would have arisen partly within the jurisdiction and outside the jurisdiction of this Court. He would also submit that the cause of action also would have arisen partly within the jurisdiction and outside the jurisdiction of this Court. He would also submit that the leave to sue application under clause-12 of letters patent was admittedly filed along with the plaint and the plaintiffs did not opt for the said application be ordered by this Court before filing of the suit and therefore, the plaintiffs did not request the application for leave along with the plaint and the said action of waiver not to pursue the leave to sue application, cannot be justified now and the request of the applicants seeking for condonation of delay of 297 days in representation and the defective presentation of the plaint cannot be ordered and rectified at this stage. He would further submit in his argument that the leave to sue application ought to have been presented along with the plaint and be ordered prior to the filing of the suit and it is a mandatory as contained in clause-12 of letters patent. He would further submit that the Registry had numbered the suit as if no leave to sue is required and the present application even if ordered after the condonation of delay in representation and condoning the defective presentation, it will not be equated to be an order of leave granted prior to the filing of the suit. He would further submit in his argument that the said position has been clearly laid down by a judgment of the First Bench of this Court reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others) as that the suit for land could have been filed when the properties are situated within the jurisdiction of this Court and part of the properties are situated within the jurisdiction of this Court and the remaining part outside the jurisdiction of this Court, leave to sue has to be applied first. He would also insist in his argument that it has categorically followed the Division Bench Judgment of Calcutta High Court, to the effect that such leave to sue should have been first obtained as laid down in AIR 1933 Cal 295. He would further submit that the leave to sue application has been now ordered to be posted before the Court despite it was not maintainable after numbering of the suit. He would further submit that the leave to sue application has been now ordered to be posted before the Court despite it was not maintainable after numbering of the suit. He would also submit that when the leave to sue ought to have been obtained prior to the filing of the suit, the present application for leave to sue sought to be obtained after the filing of the suit, cannot be maintained. He would also submit that in view of the non-maintainability of the application for leave to sue, at this stage, the application to condone the delay of 297 days in representation of the leave to sue application as well as the condonation of defective presentation, cannot also be maintained and are liable to be dismissed. He would therefore request the Court to dismiss all the three applications as not maintainable. 13.He would further submit in his argument that the judgment of the Federal Court would lay down the law clearly to the effect that the third limb of clause-12 of Letters Patent would also apply to a suit on land and when the suit filed by the plaintiff is found to be a suit on land, it is mandatory to obtain leave prior to the filing of the suit in case, the properties are located partly within and partly outside the jurisdiction of this Court. He would also cite a judgment of the Federal Court reported in 1950 Federal Court Vol.XIII 51 = AIR 1950 Federal Court 83 (Messrs, Moolji Jaitha and Company v. The Khandesh Spinning and Weaving Mills Company) in support of the aforesaid principle. He would further submit in his argument that in view of the Federal Court judgment and the judgment of this Court reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others) putting forth the principle that the suit for partition and separate possession of the properties is a suit on land, the plaintiff ought to have applied for leave to sue prior to the filing of the suit. He would also submit that in view of the judgment of the Federal Court, which is the highest Court of the Country, the judgment of this Court reported in AIR 1985 MAD 1 cited supra was no longer a good law to say that when the last limb of clause-12 of Letters Patent, if complied with by showing that all the defendants are residing within the jurisdiction of this Court, this Court has jurisdiction to try such suit even though the first two limbs are attracting the original jurisdiction of this Court. He would also submit that admittedly no leave was obtained prior to the filing of the suit and it could be ascertained from the fact that the plaintiffs have applied for condonation of delay of 297 days in representing the said leave to sue application and for condonation of the defective presentation of the plaint along with an application to grant leave would amply show that there was no leave granted prior to the filing of the suit. 14. Apart from that, the Court fee paid under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, by stating that the plaintiffs are deemed to have been in joint possession would not have been sustained, since the properties of defendants 5 and 6 are not in joint possession and therefore, the suit has been valued under Section 37(1) of the said Act and ad valorem Court fee has to be paid, but the suit was not valued in such a fashion and therefore, the suit was not properly presented. He would also submit that the properties attached in the schedule were not belonging to the joint family and certain properties are to be deleted and certain defendants have also to be removed from the suit, since there were no cause of action against them. All these defects would go to show that there was no cause of action to proceed against the defendants. Therefore, the application filed by the 1st defendant in A.No.989 of 2008 may be allowed and the plaint be rejected for want of leave to sue and for want of cause of action. Consequently, he would request the Court to reject the applications pending along with the plaint as not maintainable. 15. Therefore, the application filed by the 1st defendant in A.No.989 of 2008 may be allowed and the plaint be rejected for want of leave to sue and for want of cause of action. Consequently, he would request the Court to reject the applications pending along with the plaint as not maintainable. 15. The learned counsel for the respondents 2 and 5 have adopted the arguments advanced by the learned counsel for the 1st respondent. 16. I have given anxious thoughts to the arguments advanced on either side. 17. I have also perused the records and the administrative orders passed by the learned Judge to post the applications before the Court on maintainability. 18. These applications in A.Nos.3564 to 3566 of 2009 have been filed by the plaintiffs who filed the suit for partition and separate possession of their respective 1/6th share in the Joint Family Properties constituted in between the plaintiffs 1 to 3 and the defendants 1,3 and 4. Admittedly, some of the properties are situated within the jurisdiction of this Court and the properties described in item Nos.3(a) to 3(f) and 6 of A schedule properties, item Nos.2 to 4 in B schedule and item Nos.1 to 3 of C schedule are located outside the jurisdiction of this Court. Similarly, it is also admitted that parts of causes of action arose in and outside the jurisdiction of this Court. It is also not disputed that the plaintiff presented an application seeking for leave to sue since certain properties are located outside the jurisdiction of this Court and part of cause of action have also arisen within the jurisdiction of this Court. However, the said application was retained by the plaintiffs and the plaint alone was represented along with the other applications seeking for interim orders. On such representation ever without the leave to sue application, the Registry admitted the suit and assigned a number as C.S.No.85 of 2008. Now, the 1st defendant has raised objections in the interlocutory applications filed by the plaintiffs that the suit itself is not sustainable, in view of the non-obtaining of leave to sue and no such leave has been granted prior to the filing of the suit under clause-12 of letters patent. Now, the 1st defendant has raised objections in the interlocutory applications filed by the plaintiffs that the suit itself is not sustainable, in view of the non-obtaining of leave to sue and no such leave has been granted prior to the filing of the suit under clause-12 of letters patent. Therefore, the plaintiffs have represented the leave to sue application with an application to condone the delay of 297 days in representing the same and also to condone the defective presentation of the plaint. 19. At this juncture, we have to see whether the leave to sue application represented now is maintainable or liable to be ordered after allowing the application for condonation of delay and defective presentation. It has been strenuously argued on the side of the 1st defendant that the applicants have waived the presentation of leave to sue application and got the suit numbered as C.S.No.85 of 2008 and the present representation will not make good the position even if leave has been ordered in this application. The reliance is placed upon a judgment of this Court reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others). The said judgment was rendered by Hon'ble First Bench of this Court on a referral by the learned Single Judge regarding the question of granting leave under clause-12 of the letters patent. The relevant portion which are applicable to the present case are as follows:- "9. The Calcutta High Court has also taken the same view of Clause 12 of the Letters Patent in Surendra Krishna Ray's case. The appeal before the Division Bench arose out of a suit for possession of properties situated in Calcutta as well as property situated in the mofussil. Dealing with the question of jurisdiction of the Calcutta High Court on the Original Side, Rankin, C.J., observed as follows:- "The question of jurisdiction must be answered by reading Clause-12 Letters Patent of 1865. The appeal before the Division Bench arose out of a suit for possession of properties situated in Calcutta as well as property situated in the mofussil. Dealing with the question of jurisdiction of the Calcutta High Court on the Original Side, Rankin, C.J., observed as follows:- "The question of jurisdiction must be answered by reading Clause-12 Letters Patent of 1865. The suit, in my judgment, is a suit for land within the meaning of Clause—12, which says that this Court shall have jurisdiction to entertain a suit if the land is situated either wholly or, in case the leave of the Court shall have been first obtained in part within the local limits of its Ordinary Original jurisdiction." In a later decision in Benoy Shankar's case, the Division Bench of the Calcutta High Court observed in paragraph 20 as follows:- "Whatever may be the grammatical construction of Clause 12, it is now well established that in a suit for land, if the entire land is not situate within jurisdiction it is necessary that leave of the Court should be obtained before the institution of the suit in order that the suit may be filed in this Court. It is unnecessary to refer to the authorities which are numerous. I will only set out a passage from the judgment of Rankin C.J., in Manindrachandra v. Lal Mohan. The passage is as follows-Clause 12, is a clause which, if it was to be construed for the first time according to its grammatical construction and in strict accordance with its wording, might perhaps have to be given a somewhat different meaning to that which is well settled now in all the High Courts of India. The passage is as follows-Clause 12, is a clause which, if it was to be construed for the first time according to its grammatical construction and in strict accordance with its wording, might perhaps have to be given a somewhat different meaning to that which is well settled now in all the High Courts of India. The effect of the construction upon which all the High Courts are agreed is that as regards suits for land, the High Court can take cognizance, if the land is situate wholly within the local limits or where the land is situate in part only within such limits, if leave has been first obtained, and that as regards suits, other than those for land, the High Court has jurisdiction, if the cause of action has arisen wholly within the limits or where the cause of action has arisen in part only within the limits, if the leave of the court shall have been first obtained or if the defendant dwells or carries on business or personally works for gain within these limits." It thus appears to us that while there can be no controversy that as regards suits for land or immovable property where the whole of land or immovable property is situated within the ordinary original jurisdiction of the High Court, the High Court can take cognizance of such suits, it is also well established that even though a part of the land or immovable property is situated within such limits and part outside the limits, if leave has been first obtained, a suit for such land or immovable property can be entertained by the High Court in its ordinary original civil jurisdiction. The construction placed before the Division Bench of this Court in the Bank of Madurai's case, is clearly in consonance with the construction placed on Clause 12 of the Letters Patent in the decisions of the two other Chartered High Courts, which have been followed now for more than fifty years. We respectfully agree with the view taken in the Bank of Madurai's case. It does not therefore appear to us necessary that the scope of Cl.12 of the Letters Patent needs to be reconsidered afresh. We respectfully agree with the view taken in the Bank of Madurai's case. It does not therefore appear to us necessary that the scope of Cl.12 of the Letters Patent needs to be reconsidered afresh. We are inclined to observe that if the decision in the Bank of Madurai's case, had been placed before the learned Judge, probably the occasion for making a reference to the Division Bench would not have arisen." 20. In the aforesaid judgment, it has been referred yet another judgment of this Court namely, Bank of Mudurai case reported in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers) and the view taken regarding a suit for partition as a suit for land towards the scope of clause-12 of the letters patent was accepted. While dealing with the obtaining of leave to sue under clause 12 of the letters patent, it has been emphasised in various circumstances, that the leave of Court should be first obtained as mentioned in the clause-12 of the letters patent. Therefore, we could see that the leave to sue ought to have been obtained by the plaintiffs prior to the filing of the suit and after obtaining such leave to sue only, the plaintiff is entitled to file the plaint and number the same. The words "leave to sue" itself is referring the permission to be granted for filing the suit. 21. As far as this case is concerned, the suit was already filed and numbered by the Registry on the averment made in the plaint. It was also emphasised by the learned counsel for the applicants that the leave to sue was sought by the applicants as an abundant caution even though such leave is not required in the present case. In support of the arguments, he had placed judgment of Hon'ble Division Bench of this Court reported in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers), which was approved by the subsequent Bench as discussed above in the judgment reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others). In support of the arguments, he had placed judgment of Hon'ble Division Bench of this Court reported in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers), which was approved by the subsequent Bench as discussed above in the judgment reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others). Relying upon the said judgment, the learned counsel for the plaintiffs, was placing his argument that there is no necessity of obtaining any leave when all the defendants are either dwelling or carrying business or personally working for gain, within the jurisdiction of this Court and therefore, the said leave was not a pre-conditional one. 22. No doubt, it is true that the legal position rendered by the Division Bench of this Court in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers) was approved by the First Bench of this Court in its judgment reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others). In the said judgment reported in AIR 1985 MADRAS 1 (Bank of Madurai Ltd Vs. Balaramadas & Brothers) it has been laid down as follows:- "10. It is thus clear, that this Court has jurisdiction, whatever be the nature of the suit, in case the defendants reside within its territorial jurisdiction. This results out of a careful reading of Cl.12 of the Letters Patent of 1865 and the justification for this extraordinary rule is supplied by the historical process. One may say that the reasons which militated for endowing the High Court in Madras with a jurisdiction different from that in the mofussil do no longer exist and that the universal rule of forum loci in respect of immovables should apply also to the High Court of Judicature at Madras. In fact, that would be step in the right direction and that would alleviate the burden of the original jurisdiction of this Court. But that step has to be achieved through a legislative process. Pending such a legislative action, the law as it is has to be applied and the law, as stated earlier, is to the effect that this Court has full jurisdiction to hear a suit when the defendants reside within its territorial jurisdiction, irrespective of the place of the immovable property." 23. Pending such a legislative action, the law as it is has to be applied and the law, as stated earlier, is to the effect that this Court has full jurisdiction to hear a suit when the defendants reside within its territorial jurisdiction, irrespective of the place of the immovable property." 23. In the said judgment, it has been categorically laid down that in a suit where a defendant is residing within its territorial jurisdiction, irrespective of the place of situation of the immovable property and nature of the suit, this Court is having jurisdiction under clause-12 of the letters patent. On verification as to whether all the defendants are residing within the jurisdiction of this Court. We could see that all the defendants are residing in Chennai except the defendants 5 and 6 who were shown to have stayed at Guest House in 3rd floor of Door No.13 Melony Road, T.Nagar, Chennai, with the leave and licence of the 1st defendant. The said fact has been admitted by the 5th defendant in her counter that she and the 6th defendant are residing at No.13, Melony Road, T.Nagar, Chennai. Therefore, there is no second thought that the defendants are not residing within the jurisdiction of this Court. 24. However, in the judgment of the Federal Court as cited by the learned counsel for the 1st respondent/1st defendant reported in 1950 Federal Court Vol.XIII 51 = AIR 1950 Federal Court 83 (Messrs, Moolji Jaitha and Company v. The Khandesh Spinning and Weaving Mills Company), the larger Bench of the Federal Court had interpreted the applicability of clause-12 of Letters Patent after its amendment in the year 1865. The relevant passage would run as follows:- "In making this addition, there has been undoubtedly a slight change in the language, and it can be argued that the word "if" coming after "or" and before the words "the defendant" in the last alternative suggests the idea of its being a separate provision altogether. At the same time as Mr.Justice Fawcett has explained in his judgment in the Full Bench case of Halimbhai v. Framoz, it is quite possible to read the last alternative as referring to and being applicable to what immediately proceeds it. The utmost that can be said is that there is ambiguity in the language. At the same time as Mr.Justice Fawcett has explained in his judgment in the Full Bench case of Halimbhai v. Framoz, it is quite possible to read the last alternative as referring to and being applicable to what immediately proceeds it. The utmost that can be said is that there is ambiguity in the language. But even in such cases that interpretation is certainly to be preferred which accords with the views of general jurisprudence and the comity of nations. If the view contended for by the learned Advocate General is accepted, the result will be that the High Court would be entitled to entertain and try any suit relating to land situated anywhere in the world, provided the defendant resides within its jurisdiction and that irrespective of the fact as to whether the relief claimed in the suit can be obtained by a personal obedience of the defendant or not. This would be carrying matters beyond what any Court in the world could dream of doing and the principle of effectiveness would be jettisoned altogether. If the language is clear and express, the Court would have no other alternative but to give effect to it. But when there is room for ambiguity we would certainly be slow to hold that in making the amendment only three years after the first Charter was issued, the framers of the Charter intended to effect these sweeping and revolutionary changes which would cut at the roots of well-established principles of International Law. In my opinion, the view taken by Mr.Justice Tendolkar in the Original Court is right, and the last alternative in clause 12 cannot apply to the present case." (emphasis supplied) 25. In my opinion, the view taken by Mr.Justice Tendolkar in the Original Court is right, and the last alternative in clause 12 cannot apply to the present case." (emphasis supplied) 25. According to the judgment rendered by the Hon'ble Federal Court, the last part of clause-12 need not be applied to the suit on land situated within the jurisdiction, but could be applied only for part of lands situated within the jurisdiction and part of properties situated outside the jurisdiction, which would mean that the property which is a subject matter of the suit ought to have been situated within the original civil jurisdiction of this Court and if part of the properties are situated within the jurisdiction and rest of the properties situated outside the jurisdiction as per part-1, leave to sue ought to have been obtained first before filing the suit, even though all defendants are residing within the jurisdiction of this Court. 26. The principle laid down by the Federal Court in the aforesaid judgment was followed by the First Bench of this Court reported in 2006(1) CTC 270 (Thamiraparani Investments Pvt. Ltd., v. Meta Films Pvt. Ltd.). The relevant passage would run as follows:- "8. In M/s.Moolji Jaitha and Company v. The Khandesh Spinning and Weaving Mills Company Ltd., AIR 1950 Federal Court 83, the Court noted that the first prayer in the plaint was that it may be declared that the lands belonged to and are the properties of the plaintiff company and the defendants have no beneficial interest therein. In the said judgment, the Court held that in order to consider whether a suit is covered by the expression 'suit for land' in Clause 12 of the Letters Patent, one has to consider whether it is for the purpose of obtaining a decree for possession, or a decision in title to land, or is something different, but involves the consideration of the question of title to the land indirectly. The expression "suit for land" covers three classes of suits (i) suits for determination of title to land; (ii) suits for possession of land; and (iii) other suits in which the reliefs claimed if granted would directly affect title to, or possession of, the land. The expression "suit for land" covers three classes of suits (i) suits for determination of title to land; (ii) suits for possession of land; and (iii) other suits in which the reliefs claimed if granted would directly affect title to, or possession of, the land. The words 'suits for land or other immovable property' in Clause 12, besides obviously covering claims for recovery of possession or control of land, or apt to connote also suits, which are primarily and substantially seeking an adjudication upon title to immovable property or a determination of any right or interest therein. The words "suit and land" means establishing title to land or any interest in the same, or for possession or control thereof, and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself. In the said judgment, it is also stated that the nature of the suit and its purpose have to be determined by reading the plaint as a whole. The inclusion or absence of a prayer is not decisive of the nature of the suit, nor is the order in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the averments made in the plaint on which the reliefs sought for in the prayers are based. In the case on hand, undoubtedly, looking to the averments made in the plaint as a whole, and the relevant relief sought for, the suit is clearly, substantially, and mainly for land." 27. In the said judgment of the First Bench of this Court, it has been categorically found that in a suit for injunction, where the property is situated outside the jurisdiction of this Court, the suit would be deemed as a suit on land as mentioned in clause-12 of Letters Patent and leave to sue has to be obtained, since this Court has no territorial jurisdiction. On a careful perusal of the residence of the defendant in that suit, the place of the business of the respondent/defendant was found to have his office at Door No.A-11, Anna Nagar East, Chennai-102, which is within the jurisdiction of this Court. On a careful perusal of the residence of the defendant in that suit, the place of the business of the respondent/defendant was found to have his office at Door No.A-11, Anna Nagar East, Chennai-102, which is within the jurisdiction of this Court. In the said judgment, this Court was not found to have jurisdiction to entertain the suit as the suit was one for land and the leave to sue was granted as asked for by the plaintiffs. Therefore, it has been decided by the First Bench of this Court that the third part of clause-12 of the Letters Patent even complied with would require the obtaining of leave is for the suit on land as per the 1st part of the Clause 12 of Letters Patent. 28. Therefore, we could see that the dictum laid down by this Court in the judgment reported in AIR 1985 MAD 1 has not been tacitly accepted, but the view taken by the Hon'ble Federal Court in the judgment reported in AIR 1950 Federal Court 83 has been followed. As per the judgment of the Hon'ble Federal Court, the third part of clause-12 of Letters Patent cannot be resorted to independently, for maintaining the suit, even though the suit properties are located partly within and outside the jurisdiction of this Court. 29. It is quite clear that in case where part of the properties are situated within the jurisdiction of this Court and the remaining part are situated outside the jurisdiction of this Court or part of cause of action arose within the jurisdiction of this Court and remaining part of cause of action arose outside the jurisdiction of this Court, the leave to sue is necessary even though all the defendants are residing within the jurisdiction of this Court. We have already seen that the defendants in this case are shown to have either dwelling or having business within the jurisdiction of this Court. However, the subject matter namely the properties are admittedly situated partly within the jurisdiction and partly outside the jurisdiction of this Court. Similarly, the cause of action also shown to have arisen partly within and partly outside the jurisdiction of this Court. 30. However, the subject matter namely the properties are admittedly situated partly within the jurisdiction and partly outside the jurisdiction of this Court. Similarly, the cause of action also shown to have arisen partly within and partly outside the jurisdiction of this Court. 30. It is relevant to refer to Clause 12 of the Letters Patent which reads as follows: "Original jurisdiction as to suits:-And We do further ordain that the said High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or, in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said high Court: or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees." 31. It is very clear from the ingredients of clause-12 of letters patent as well, through the judgment of this Court reported in 1988 (2) LW 308 (Giridhar & another v. A.Suresh & Others) that any leave of the Court to sue shall have been first obtained prior to the filing of the suit. Therefore, the present stage of the suit is not appropriate to grant leave to the applicants to file the suit. If any such leave is granted, it would be amounting to grant of leave to continue the proceedings which has not been stated in clause-12 of the letters patent. Therefore, the application seeking for leave to sue at this stage, is not maintainable. Therefore, the applications filed seeking for condonation of defective presentation of the plaint and the condonation of delay of 297 days in representing the leave to sue applications are also not sustainable. 32. Therefore, the application seeking for leave to sue at this stage, is not maintainable. Therefore, the applications filed seeking for condonation of defective presentation of the plaint and the condonation of delay of 297 days in representing the leave to sue applications are also not sustainable. 32. In yet another judgment of this Court reported in 2006 (4) MLJ 392 (Andhra Bank Financial Services Ltd., v. Tamil Nadu Newsprint and Paper Ltd.,), it has been categorically mentioned as follows:- "14. A fair reading of the aforesaid provision makes it clear that a suit can be filed in the Original Side of the Madras High Court if the cause of action arises wholly within the jurisdiction of Madras High Court or if the defendant is a resident within the territorial jurisdiction of the Madras High Court in its Original Side at the time of institution of the suit and in cases where the cause of action has arisen partly within the jurisdiction of Madras High Court, such a suit can be filed only after obtaining leave as contemplated under Clause-12." 33. In the said case also, it has been found that when part of cause of action arose within the jurisdiction and remaining part of cause of action arose outside the jurisdiction of this Court, leave to sue should have been obtained first. In the said circumstances, the defendants in this suit, even though residing or having business within the jurisdiction of this Court, since the part of the suit properties are situated within and outside the jurisdiction of this Court and part of cause of action arose within and outside the jurisdiction of this Court, leave to sue should have been obtained first before filing of the suit, but admittedly leave to sue has not been obtained by the plaintiffs in this case but he had applied for condonation of delay of 297 days in representing the leave to sue application and also to condone the defective presentation of the plaint and also seeking an order of grant of leave to sue, at this stage. 34.The dictum laid down by this Court in Thamirabarani case, would go to show that the leave shall be obtained prior to the filing of the suit even though the defendants are living within the jurisdiction of this Court, in respect of a suit on land or in a suit controlling the land. 34.The dictum laid down by this Court in Thamirabarani case, would go to show that the leave shall be obtained prior to the filing of the suit even though the defendants are living within the jurisdiction of this Court, in respect of a suit on land or in a suit controlling the land. In this case, leave has not been obtained for a partition suit in which part of the properties (i.e.,) item No.3 (a to f), item No. 6 in the A schedule, item Nos.2 to 4 in B schedule and item Nos.1 to 3 in C schedule are admittedly situated outside the jurisdiction of this Court. Similarly, major part of cause of action arose within the jurisdiction and some part of cause of action arose outside of the jurisdiction. Therefore, the relief sought for would show that the suit itself is a suit on land and part of cause of action only arose in this jurisdiction and therefore, the plaintiffs ought to have applied for leave and obtained the same at first and thereafter, to file the suit. In this case, the suit was numbered by the Registry without the grant of leave of this Court, which is not sustainable. 35. In the earlier paragraphs, I have discussed and found that leave to sue, which ought to have been obtained by the plaintiff before filing the suit, was not obtained by the plaintiff before filing the suit. Moreover, it was also found that the representation of leave to sue application along with the application to condone the delay of 297 days and an application to condone the defective presentation were also found not sustainable at this stage. Hence, all the three applications in A.Nos.3564 to 3566 of 2009 are liable to be dismissed. 36. The learned counsel for the appellant/1st defendant in A.No.989 of 2008 would submit in his argument that the Court fee paid is also not in accordance with law since the plaintiffs are not in joint possession of the suit property and the fixed Court fee has been paid under Section 37 (2) of Tamil Nadu Court Fee Suit Valuation Act. However, some of the suit properties are admittedly in the exclusive possession of some of the defendants. However, some of the suit properties are admittedly in the exclusive possession of some of the defendants. Therefore, it has to be calculated only under Section 37(1) of the said Act and ad valorem Court Fee has to be calculated and the presentation without proper Court fee was also defective. He would therefore, request the Court for rejection of plaint for no cause of action. 37. As regards the other points raised for the rejection of the plaint, those points are depending upon the factual aspects and they have to be seen only at the time of trial with the help of evidence to be adduced. The law is well settled regarding payment of Court fee which has to be decided on the averments made in the plaint and not on the basis of the findings to be reached by the Court in a trial. 38. However, the main reason for rejection of the plaint was harped upon the failure to obtain the leave to sue as required under clause-12 of Letters Patent. We have already found that the leave to sue was not obtained prior to the filing of the suit and yet the suit was numbered in C.S.No.85 of 2008 without the leave to sue as required under clause12 of Letters Patent. We have already found that the leave is required for the present suit which would vitiate the filingitself. Therefore, I could see that the suit filed by the plaintiff without obtaining the leave to sue under clause-12 of Letters Patent is not maintainable and is liable to be rejected. Therefore, I am of the considered view that the request made by the 1st defendant in A.No.989 of 208 has to be acceded and accordingly, the application is ordered. Consequently, the suit is liable to be rejected. 39. In the result, the applications filed by the plaintiffs in A.Nos.3564 to 3566 of 2009 are dismissed. The application filed by the 1st defendant in A.No.989 of 2008 is allowed and thereby the suit in C.S.No.85 of 2008 is rejected. In view of the rejection of the suit, all other pending applications in the suit (i.e.,) A.No.1034 of 2008, O.A.Nos.138, 139 of 2008 and A.No.633 of 2008 are liable to be closed and accordingly closed. No order as to costs.