Sharma, J. - (1.) THIS is an application by the defendants Sheva Ram and Lekhumal for revision of an order of the learned Additional Civil Judge, Jaipur granting leave to the plaintiff for filing the suit in Jaipur. Of the two of the defendants Mirchoomal and Tara Chand were not living within the jurisdiction of the Court. When the suit was filed on the 20th Jan. 1949 no leave was obtained. Mirchoomal appeared, but he did not raise any objection to the lower court's taking cognizance of the suit. Tara Chand although served with the summons did not appear. He was, however, given up and his name was deleted from the array of the defendants. The plaintiff then made an application on the 22nd May, 1950 for leave to sue. Sheva Ram defendant who was residing within the jurisdiction of the court, raised objection, but the court granted leave. Against this order, Sheva Ram has come in revision to this Court.
(2.) IT was argued by the learned counsel for the applicant that under sec. 20 (b) of the Civil Procedure Code when some of the defendants, are not actually and voluntarily residing or carrying on business or personally working for gain at the time of the commencement of the suit within the local limits of court's jurisdiction, suit can be filed with the leave of the court. In the present case, no such leave was taken when the suit was filed but after more than a year, this leave was sought. IT ought not to have been granted at the stage at which it was done. The learned counsel for the opposite party has argued that the plaintiff has already given up Tara Chand one of the defendants who was not residing within the jurisdiction of the lower court. As regards Mirchoomal although he appeared before the lower court, but he did not raise any objection to the continuance of the suit without the leave of the court. He should, therefore, be taken to have acquiesced in the institution of the suit. However, for precaution's sake, the plaintiff applied for leave and the court was perfectly justified in granting it. It was argued that the lower court awarded costs of Rs. 50/- to the contesting defendants, which have been paid to them. They had, therefore, no right to come to this Court in revision against the order of the lower court. I have considered the arguments of both the learned counsel. There is no doubt that sec. 30 (b) of the Civil Procedure Code requires that when only some of the defendants are residing within the jurisdiction of the court leave of the court should be obtained for the institution of the suit. There is however, nothing under sec. 20 (b) to show that if the leave is not sought when the suit is filed, it cannot be given afterwards. In the present suit one of the defendants who was not residing within the jurisdiction of the court has already been exempted from the suit at the instance of the plaintiff. Mirchoomal who is now the only defendant who is not residing within the jurisdiction of the lower court, appeared before the lower court but did not raise any objection to the continuance of the suit in the absence of leave. He should, therefore, be said to have acquiesced in the institution of the suit and if a defendant who is not residing within the jurisdiction of the court acquiesces in such institution, no leave of the court is necessary. In this case, however, the plaintiff has by way of precaution also applied for the leave of the court and it cannot be said that under the circumstances of the case, the lower court was not justified in giving leave to the plaintiff, when the contesting defendant has been awarded the costs of Rs. 50/ -. This costs has been received by the said defendant. Under the circumstances of the case, I do not find any ground for giving the discretionary relief in this revision to the applicant. The application is dismissed and the costs of this revision shall abide the result of the revision in the lower court. .;