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Jamsedji F. Shroff Vs. Husseinbhai Ahmedbhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 987 of 1918
Judge
Reported in(1920)22BOMLR319
AppellantJamsedji F. Shroff
RespondentHusseinbhai Ahmedbhai
Excerpt:
receiver - suit against receiver without leave of court-application for such leave after filing of suit-jurisdiction-practice;the plaintiff tiled a suit against the receivers appointed by the high court without first applying to the court for leave to file such suit. he subsequently applied for such leave:--;that the failure to obtain leave prior to the institution of the suit could be cured by leave subsequently granted if there was no bar to the institution of the suit, that is to the jurisdiction of the court to admit the plaint. - - and the court could order the suit to be stayed until it was satisfied that there was no encroachment upon its authority, nor want of attempt to interfere with the receiver's possession......nawab muhammad asmat ali khan v. mussumat lalli begum or leave under order i, rule 8 (1), civil procedure code: fernandez v. eodrigues ilr (1897) 21 bom. 784; or leave under section 20, civil procedure code: narayan shankar v. secretary of state ilr (1906) 30 bom. 570 : 8 bom. l.r. 543. but in the latter case, that is, when the bar is to the original institution of the suit, leave subsequently granted is of no avail: for instance, the consent of: the advocate general under section 92, civil procedure code : tricumdass mulji v. khimji vullabhdass ilr (1892) 16 bom 626; or the leave of the court under section 17 of the presidency towns insolvency act ; in re dwarkadas tejbhandas : air1915bom184 .3. in the case of a suit against a receiver there is no statutory provision requiring.....
Judgment:

Pratt, J.

1. The summons was issued on an application by the plaintiff for leave to continue the suit against the defendants who are Receivers of the estate of Ahmedbhai Habibbhai. The plaintiff claims to have been employed as a broker by the Receivers and sues for his brokerage. It is clear, therefore, that there is a question to be tried and the case is one in which the Court would grant leave as a matter of course: Lane v. Capsey [1891] 3 Ch. 411 and Braja Bhusan Trigunait v. Sris Chandra Tewari (1918) 4 P.L.J. 20.

2. The only difficulty arises from the fact that per incuriam the suit was filed without the previous sanction of the Court. It was held in Pramanatha Nath Gangooly v. Khetra Nath Banerjee ILR (1904) Cal. 270 that leave of the Court is a condition precedent to the right to sue and that that omission cannot be rectified by subsequent application. The judgment in that case is not supported by any reasons and was not followed in Rustomjee Dhanjibhai Sethna v, Frederic Gaebele ILR(1918) Cal. 352. The various statutory provisions which require the consent of the Court or some other authority as a condition on which a suit may be maintained are collected in the case of Chcmdulal v. Awad bin Umar Sultan ILR (1896) 21 Bom. 351. The consideration of those and subsequent authorities shows that the words in the Statute have to be examined in each case in order to ascertain whether the provision is a bar to the Court dealing with the action, or is a bar to the original institution of the suit. In the former case the suit may continue on leave subsequently granted: for instance, the leave of the Collector in a suit to which Sections 4 and 6 of the Pensions Act XXIII of 1871 are applicable: Nawab Muhammad Asmat Ali Khan v. Mussumat Lalli Begum or leave under Order I, Rule 8 (1), Civil Procedure Code: Fernandez v. Eodrigues ILR (1897) 21 Bom. 784; or leave under Section 20, Civil Procedure Code: Narayan Shankar v. Secretary of State ILR (1906) 30 Bom. 570 : 8 Bom. L.R. 543. But in the latter case, that is, when the bar is to the original institution of the suit, leave subsequently granted is of no avail: for instance, the consent of: the Advocate General under Section 92, Civil Procedure Code : Tricumdass Mulji v. Khimji Vullabhdass ILR (1892) 16 Bom 626; or the leave of the Court under Section 17 of the Presidency Towns Insolvency Act ; In re Dwarkadas Tejbhandas : AIR1915Bom184 .

3. In the case of a suit against a Receiver there is no statutory provision requiring the leave of the Court. But the same principle would apply, and the defect can be cured by leave subsequently granted if there is no bar to the institution of the suit, that is to the jurisdiction of the Court to admit the plaint.

4. The necessity for leave to sue the Receiver rests upon two considerations : (I) that such a suit is incompatible with the dignity and authority of the Court ; (2) that it might interfere with the duty of the Court to maintain the Receiver's possession. Neither of these considerations affects the jurisdiction of the Court. They are matters which the Court can deal with after the suit is filed; and the Court could order the suit to be stayed until it was satisfied that there was no encroachment upon its authority, nor want of attempt to interfere with the Receiver's possession.

5. Therefore it seems clear that leave may be granted after the filing of the suit, and Mr. Desai with his customary fairness does not dispute this proposition.

6. Accordingly, I make the summons absolute but direct that plaintiff pay the costs of the summons. Counsel certified.


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