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Narayan Shankar Rajwade Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Application No. 325 of 1906
Judge
Reported in(1906)8BOMLR543
AppellantNarayan Shankar Rajwade
RespondentThe Secretary of State for India
DispositionApplication dismissed
Excerpt:
civil procedure code (act xiv of '1882), section 17-suit when the defendant resides out of jurisdiction-leave of the court.; where a suit is instituted in a court within the local limits of jurisdiction of which the defendant does not reside, the leave of the court mentioned in the proviso to section 17 of the civil procedure code 1882, can be obtained even after the institution of the suit. - - therefore, we hold that the leave, though subsequent, was good and the rule must be discharged with costs......made on behalf of the plaintiff for leave under section 17(c) of the civil procedure code.5. that leave was granted and it is to the order granting that leave that exception is now taken by the defendant affected thereby. he maintains that leave could not be granted after the institution of the suit.6. no doubt the words of the section are susceptible of that meaning, but the concluding provision as to acquiescence makes it clear that a defect at the institution can be subsequently cured, for obviously there could be no acquiescence at the times of the institution. and so we think, there is no necessity for reading the words of the proviso in such a way as to say that the leave of the court must have been first given. such a conclusion would lead to great inconvenience, and possibly.....
Judgment:

Lawrence Jenkins, K.C.I.E., C.J.

1. A suit has been brought against three defendants in the District Court of Poona.

2. Two of these defendants at the time of the institution of the suit were actually and voluntarily residing within the local limits of the Poona Court.

3. The third was not.

4. Since the institution of the suit, an application has been made on behalf of the plaintiff for leave under Section 17(c) of the Civil Procedure Code.

5. That leave was granted and it is to the order granting that leave that exception is now taken by the defendant affected thereby. He maintains that leave could not be granted after the institution of the suit.

6. No doubt the words of the Section are susceptible of that meaning, but the concluding provision as to acquiescence makes it clear that a defect at the institution can be subsequently cured, for obviously there could be no acquiescence at the times of the institution. And so we think, there is no necessity for reading the words of the proviso in such a way as to say that the leave of the Court must have been first given. Such a conclusion would lead to great inconvenience, and possibly hardship, as in cases where the plaintiff honestly and reasonably believed that all the defendants were residing within the jurisdiction. Therefore, we hold that the leave, though subsequent, was good and the rule must be discharged with costs.


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