1. The appellant contends that the leave to sue given under Section 30 of the Code of Civil Procedure is irregular and therefore the suit should be dismissed.
2. The plaintiff who is the manager of a samuham applied for leave to sue the defendants Nos. 1 to 12 on behalf of the samuham to recover certain property. This was refused. The plaintiff thereupon filed the suit in his own name and claimed to recover as manager of the samuham joining other members of the samuham as defendants also. The defendants raised the question as to whether all the members of the samuham were made parties and also contended that the suit would not lie as leave to sue under Section 30 had not been given.
3. The Munsif in the course of the case gave leave to sue under Section 30 and ultimately the plaintiff succeeded in both Courts.
4. The only question before us is whether the leave given is valid and sufficient to entitle the plaintiff to a decree, the leave having been given (a) after suit commenced and (b) after leave had been refused.
5. So far as we have been able to discover there is no decision of this Court directly in point upon either question, but the decision of Shephard, J., in Srinivasa Chariar v. Raghava Chariar I.L.R. 23 Mad. 28 goes to show that in his opinion the leave to sue need not necessarily precede the commencement of the action.
6. In Fernandez v. Rodrigues I.L.R. 21 Bom. 784 and Baldeo Bharthi v. Bir Gir I.L.R. 22 All. 269 those Courts hold that leave may be given after the suit has commenced, and we also are of that opinion. We are also of opinion that the fact that leave had previously been refused does not affect the matter as it is entirely a matter of discretion not affecting the merits of the case and it can only have affected the defendants in the matter of costs which could be dealt with at the time the order was made.
7. We therefore dismiss the second appeal with costs.