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19 February 2019

Clause XII Of Letters Patent And Original Jurisdiction Of The High Court Established Under Letters Patent

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Letters Patent is a type of legal instrument in the form of a published written order issued by a monarch, president, or other head of state, generally granting an office, right, monopoly, title, or status to a person or corporation.
India Intellectual Property
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What are Letters Patent ?

Letters Patent is a type of legal instrument in the form of a published written order issued by a monarch, president, or other head of state, generally granting an office, right, monopoly, title, or status to a person or corporation. Letters patent can be used for the creation of corporations or government office. In 1823, in the British-India the letters patent was issued by the monarch of England in order to create another Supreme Court in the Presidency of Bombay similar to that of Supreme Court of Madras and Calcutta. King George IV issued Letters patent in the year 1823 for establishment of the Supreme Court of Judicature at Bombay. Now there were 3 Supreme Courts operating in British India. The eastern part of India which came under the Bengal Presidency had Supreme Court of Judicature at Fort William (Calcutta) established in 1774, the southern part of India which came under the Madras Presidency had Supreme Court of Judicature at Madras established in the year 1817 and the western part of India came under the Bombay Presidency had the Supreme Court of Judicature at Bombay, established by the letters patent by the King Gorge the IV in the year 1823.

In the year 1857, the great Indian revolt against the British East India Company took place and as an impact of the great revolt the control of the East India Company over India was transferred to the Crown by the new enactment the Government of India Act, 1858. This Act ended the dual raj on India and all the administration thereafter came under the Crown. In the year 1961 the British Parliament passed an enactment as "The Indian High Courts Act 1861" which received the assent of the Crown. Accordingly by the letters patent dated 26th June 1862, the earlier letters patent for establishment of the Supreme Courts were revoked and new High Courts were to be established in Bombay on 14th August 1862, Calcutta on 2nd July 1862 and in Madras on 15th August 1862. All these courts enjoyed and still enjoy the Original Jurisdiction.

Extract of Revocation of Letters Patent of 1802 whereby establishment of Supreme Court was revoked

"Now know ye that We, upon full consideration of the premises, and of Our especial grace, certain knowledge, and mere motion, have thought fit to revoke, and do by these presents (from and after the date of the publication thereof, as hereinafter provided and subject to the provisions thereof) revoke our said Letters Patent of the Twenty-sixth of June One thousand Eight hundred and Sixty-two except so far as the Letters Patent of the Fourth year of His Majesty King George the Fourth dated the Eighth day of December One thousand Eight hundred and Twenty-three, establishing a Supreme Court of Judicature at Bombay, were revoked or determined thereby".

Vide the above Letters Patent the earlier Letters Patent issued by King George the IV was revoked.

Establishment of the High Courts

"And We do by these presents grant, direct, and ordain that notwithstanding the revocation of the said Letters Patent of the Twenty-sixth of June One thousand Eight hundred and Sixty-two, the High Court of Judicature, called the High Court of Judicature at Bombay, shall be and continue as from the time of the original erection and establishment thereof, the High Court of Judicature at Bombay for the Presidency of Bombay aforesaid, and that the said Court shall be and continue a Court of Record and that all proceedings commenced in the said High Court, prior to the date of the publication of these Letters Patent, shall be continued and depend in the said High Court as if they had commenced in the said High Court after the date of such publication, and that all rules and orders in force in the said High Court immediately before the date of the publication of these Letters Patent shall continue in force, except so far as the same are altered hereby until the same are altered by competent authority".

Clause XI of the Letters patent (Local Jurisdiction of the court )—

"And We do hereby ordain that the said High Court of Judicature at Bombay shall have and exercise ordinary original civil jurisdiction within such local limits as may from time to time, be declared and prescribed by any law made by the Governor in Council, and until some local limits shall be so declared and prescribed, within the limits of the local jurisdiction of the said High Court of Bombay at the date of the publication of these presents, and the ordinary original civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction".

Clause XII of the Letters Patent –

"And We do further ordain that the said High Court of Judicature at Bombay, in the 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 Court at Bombay, or the Bombay City Civil Court."

Clause XII of the Letters Patent of the High Court empowers the High Courts at Bombay, Calcutta and Madras to try certain suits in the exercise of their Ordinary Original Civil Jurisdiction (O.O.C.J) where the claim of the suit exceeds a particular amount and are within the local original territorial jurisdiction of the Court. In exercise of Jurisdiction under the Letters Patent, the High Court is also empowered to hear the suit outside the local original territorial Jurisdiction of the Court. In order to use those powers under Clause XII of the Letters patent, the Court has to ascertain if the Leave under Clause XII shall be granted to any such suit which is outside the territorial jurisdiction of the court or whether to reject such a suit.

Which suits falls under the category by Clause XII of the Letters Patent

Let us divide the above extract of the Clause XII in parts in order to understand the meaning and essence of the Clause XII.

Part 1 - Suits for Land

"And we do further ordain..........shall be empowered to receive, try, and determine suits of every description (any suit), if, in the case of suits for land or other immovable property...."

From the above extract it can be understood that vide Clause XII, suit of any description including suits for land or other immoveable property can be tried by the High Court under its original Jurisdiction.

"....such land or property shall be situated (within the local limits), or in all other cases if the cause of action shall have arisen, either wholly (entire cause of action has arisen within the local jurisdiction of the court), or, in case the leave of the Court shall have been first obtained, in part (Leave under clause XII to be obtained if cause of action arises partly outside the local limits), within the local limits of the ordinary original jurisdiction of the said High Court..."

  1. If the land or property is situated wholly within the local limits of the Ordinary Original Civil Jurisdiction of the said High Court, suit can be tried by the High Court without grant of any leave.
  2. Only with the leave of the Court the suits other than mentioned in "a" where the part of the property is situated outside the local limits of the original jurisdiction of the court or where the cause of action partly has arisen outside the local limits of the original jurisdiction of the High Court. These suits can be tried only after the leave under this clause is obtained form the High Court.
  3. If it is a suit for land, i.e. Partition Suit, suit for declaration of the rights of property, suit for specific performance of the agreement relating to the dealing of land and if such a land or property or flat or house or plot is completely outside the local limits of the Original Jurisdiction of the court then no question of the leave under clause XII arises.

Part 2 - Suit other than Suit for Land

".....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...."

  1. The 1st part of the above extract can be understood as that, the court can try the suit under its original jurisdiction, if the cause of action has arisen wholly within limits of the original Jurisdiction of the High Court. In this case there is no need to take leave under Clause XII to try suit in the High Court's Original Jurisdiction.
  2. The 2nd part mentions about the leave under clause XII. If the cause of action has arisen in part only within the local limits of the original Jurisdiction of the High Court then such a suit can only be tried once the leave under the Clause XII is obtained by the Plaintiff.

Part 3

"...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 Court at Bombay, or the Bombay City Civil Court."

  1. If the defendant at the time of the commencement of the suit dwells or carries on business or personally works for gain outside the local limits of the original jurisdiction of the High Court then the suit can be tried in the High Court only after the Leave under Clause XII has been obtained by the Plaintiff. Here outside the local limits does not only mean outside the local limits but within India, the defendant even if he is carrying out business outside India then leave of the Court Under Clause XII shall be obtained.

When and How to obtain leave

Under Order IV Rule 1 of the Code of Civil Procedure (C.P.C), the suit shall be filed with the plaint along with other relied annexure/exhibits as per and in accordance with Order VI and VII of the C.P.C.

Under Order IV rule 2 of the C.P.C which reads as "Register of Suits- The Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted "the register of Suits is to be maintained". This means that once the suit is filed and if it is in accordance with Order IV, Order VI and Order VII of the C.P.C then the said suit shall be entered/admitted into the Register of Suit.

If the suit falls within the dimensions of the earlier mentioned conditions then the leave under clause XII shall be obtained in order to commence with the hearing of the suit in the High Court. Now as soon as the suit is lodged the Leave Petition (L.P) shall be filed with the High Court to obtain leave under Clause XII of the Letters Patent Act. The said petition is then listed before the Hon'ble Judge of the High Court in order to evaluate if the said suit falls under the ambit of the leave under Clause XII and the leave is either granted or rejected.

The general practice of the filing department at the High Court of Bombay is, on filing of the suit i.e. the plaint along with all the relied annexures/exhibits relied upon by the Plaintiff, the department provides you with a lodging number of the suit indicating that the suit has been lodged but not admitted into the register of suits. This lodging number is indicated as "Suit (L) No. 000 of 2019". On lodging of the suit the suit is further sent to other departments in order to get the objections raised in that suit to check if the said suit is in accordance with Order IV, Order VI and Order VII of the C.P.C. and if the leave under any of the clause of Bombay Letters Patent Act is required to be obtained. Once all the defects in the suit are removed then the suit is said to be admitted and newly numbered as per the register of the suits. The suit will now be indicated as "Suit No. 123 of 2019".

What if in the mean time the matter is listed before the Hon'ble Court for hearing on interim relief when the suit is still bearing the "Lodging" number and not entered in the Register of Suit, is it too late to obtain the Leave under Clause XII?

A similar proposition was raised in the case of Caribjet Inc. v. Air India (2005 (2) MhLj 461) Ltd which was dealt with by the Hon'ble Bombay High Court

In paragraph 11, the Hon'ble Bombay High Court held that, "In our opinion, the legal position has been correctly set out by P. B. Sawant, J. (as he then was) in Union Bank of India v. Sunpack Corporation and Ors., (1986 Mh.L.J. 237) as follows : As per the existing practice the plaint is presented to the Prothonotary and Sr. Master of this Court who is the officer appointed for the acceptance of the plaint as per Order IV, Rule 1 of the Code of Civil Procedure Then follows the next stage mentioned in Rule 2 of the said Order, namely, the entry of the particulars of the suit in the register of suits and their seriatim numbering according to the order in which the plaints are admitted. Order V, Rule 1 then states that it is only when the suit has been duly admitted that the summons is to be issued to the defendant or defendants as the case may be. This is also clear from the provisions of Order VII, Rule 9. The Code itself, therefore, envisages two stages - first, of the presentation of the plaint, and the next, of the admission of the plaint. The suit is not admitted to the register of suits and number is given to it, merely on the presentation of the plaint. After the presentation, the plaint is scrutinized. If there are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter of procedure. It is only after the defects are removed that it becomes eligible for an entry and a number, in the register of suits. One of the defects can be the absence of leave of the Court to institute the suit where it is necessary, including leave under Clause 12 of the Letters Patent. So long, therefore, as the plaint is not admitted and entered in the register of suits, all defects including that of the absence of leave under the said clause, can be removed without returning the plaint. It was pointed out that it is the confusion between the two stages, namely presentation of the plaint and of its admission to the register of suits after the removal of the defects, if any, which is responsible for the faulty procedure adopted by the office. Sawant J. directed the office not to return the plaint for want of leave under Clause 12 of the Letters Patent but only require the plaintiff to obtain the leave and admit it to the register when leave is obtained. The office followed and implemented the directions of Sawant J. However, it appears that after the decision of Suresh J. in Rhoda Mehta's case (supra) which has taken a contrary view, the office again changed the practice. Incidentally, neither in Rhoda Mehta's case nor in the other decisions rendered by the learned single Judge the decision of Divisional Bench in Ramgopal Chunilal's case was noted. Those decisions are clearly per incuriam. We are informed that following an unreported decision of Kochar J. dated 11th March, 1977 in Nat Steel Equipment Pvt. Ltd. v. Bangalore Heart Hospital and Research Centre (Summary Suit (Ld) No. 213 of 1999) the old practice of not returning the plaint for want of leave has been restored by the office. In the circumstances, the fact that the suit was accepted by the authorised officer of this Court prior to obtaining leave under Clause 12 will make no difference inasmuch as it is only upon numbering of the suit that it can be said to have been "accepted" by this Court. It is, therefore, not possible to accept the submission that the plaint as lodged on 20th July, 2001 was improper presentation. In the present case, admittedly, leave under Clause 12 was granted on 8th September, 2001 and only thereafter the suit came to be numbered on 13th September, 2001. There is thus no reason to interfere with the order granting leave under Clause 12. Appeal is accordingly dismissed. "As long as the plaint is not admitted and entered in the register of suits, all defects including that of the absence of leave under the said clause, can be removed without returning the plaint."

The Hon'ble High Court differentiated what is lodging number and what is the final number. When the Suit is on its Lodging Number it is not admitted in the Register of the Suits and all the defects raised by the Court's offices can be dealt with until it is on its lodging number. Obtaining clause XII if not obtained on lodging of the suit, can still be obtained before the Suit is admitted in the Register of the Suits under Order IV Rule 2 of the C.P.C.

Conclusion

The Leave under Clause XII is a vital and important power granted to the High Courts of Bombay, Madras and Calcutta. This defines the Power of the Higher Judiciary to have its own independent original Jurisdiction wherein the cases with complexity can be directly filed to the higher court which is capable to handling the case which includes several cause of actions and properties in question which are situated in different parts of state or country. It also avoids the multiplicity of the judicial proceedings which would likely happen taking into consideration the separate cause of actions and properties situated at different parts of country. The reason for establishment of the High Courts then meant the end of the Rule of the East India Company which was later dissolved, and the administrative powers were transferred to the Crown, the then Queen Victoria. With the establishment of the High Courts in 3 provinces came an end of the Supreme Court in those 3 Provinces. All the appeals from the High Courts were directed to the Privy Councils. The Queen, vide the Letters patent, granted wide powers to the High Courts of the 3 Provinces in order to have a total control over the administrative and judicial powers of the Country then ruled by her. The Powers under the letters patent were so vital that it is still in force and practiced in the High Courts, even after 70 years of Independence for the good and well being of the litigants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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