TITLE: Dynamic Associates Vs. Mr. Singaracharlu and Ors.
Decided On: July 13, 2023
Original Side Appeal No. 431 of 2018 and C.M.P. No. 19640 of 2018.
CORAM: Hon’ble Mr.Justice R.Mahadevan and Mohammed Shaffiq
Introduction:
This intra-court appeal is filed by the appellant / 4th defendant, aggrieved by the order dated 04.07.2018 passed by the learned Judge, dismissing the Application No. 365 of 2010 in Tr. C.S. No. 282 of 2011 filed to revoke the leave granted to institute the suit on 04.03.2008 in Application No. 1134 of 2008 filed by the plaintiff.
Facts:
The plaintiff is the owner of the plaint schedule property which devolved on him by means of a settlement deed dated 15.07.1953 registered as document No. 1628 of 1953 executed by his father Late. P. Anandhapadmanabhacharlu. The first defendant/second respondent herein is the sister of the plaintiff. According to the plaintiff, his sister / first defendant and Ms. Vyjayanthi, another sister, were also the owners of the properties, which lies adjacent to the plaint schedule property owned by him. As the plaintiff was in United States of America, he could not look after the property and therefore, in good faith, he had executed a General Power of Attorney deed dated 10.07.2000 in favour of his sister / first defendant authorising her to deal with the plaint schedule property. Based on the General Power of Attorney deed, the first defendant entered into a Joint Development Agreement dated 05.06.2000 with M/s. Mahaveer Finance and Buildings Pvt Ltd., in respect of the property owned by the plaintiff as also the property owned by her and another sister Vyjayanthi. However, the terms and conditions of the Joint Development Agreement were not disclosed to the plaintiff. On the basis of the Joint Development Agreement, the superstructure of the plaint schedule property was demolished, tenants were vacated and a new superstructure was put up thereon. The first defendant also received huge amount from M/s. Mahaveer Finance and Buildings Pvt Ltd., but it was not passed on to the plaintiff. The Plaintiff came to know that due to violation of certain terms and conditions, the first defendant cancelled the Joint Development Agreement dated 05.06.2000 with the builder.
Legal Analysis and Decision:
The court is always within its right to pass any orders even if the caveat has been launched. The failure of the plaintiff to put on notice the caveator would render the order irregular, but not a nullity. However, this proposition cannot be universal. As a matter of right, the caveator is entitled to notice of hearing. The effect of failure to service notice dependents upon the facts of the each case, the prejudice that is alleged to be caused together with the reason for not serving notice on the caveator. In the present case, the plaintiff has accepted and contended that the notice was not served on the caveator due to oversight. The plaintiff has also stated that the leave was sought and the subsequent suit was filed only as an abundant caution and after the appellant has been contesting it all along, this application to revoke has been filed after a long delay. Now, coming to the question of prejudice, considering the facts of the case, we have already concurred with the Learned judge and held that both the cases arise out of different cause of action. Hence, there cannot be any real prejudice to the appellant as opposed to the prejudice that will be caused when an interim order of injunction is granted, the test of which lies on the three principles of prima facie case, balance of convenience and irreparable loss. On the contrary, It is well settled that granting leave to sue on the same cause of action under Order II Rule 2 of CPC is a discretion vested with the Court. The Court can grant leave by taking note of the overall facts and circumstances of the case. While granting leave, the Court may or may not issue notice to the respondents inasmuch as the order to be passed in such an application is based on the exercise of discretion by the Court. Unless the discretion exercised by the learned Judge is found to be arbitrary or based on irrelevant material, this Court cannot interfere with the same. The consideration of grant of leave is essentially on the basis of the application filed by the applicant and the averments made therein. If the Court is satisfied that grant of leave would meet the ends of justice, then, leave to sue can be granted. In the present case, by grant of leave in favour of the plaintiff to file a separate suit, even if, on the same cause of action to assail the sale deed dated 14.06.2007, no prejudice will be caused to the appellant. Thus, there is no bar for the plaintiff to invoke the provisions contained under Order II Rule 2 (3) of CPC and seek leave to file a separate suit with the presumption of same cause of action, even if the cause of action for instituting the suits is distinct and separate. In any event, even based on the assumption that cause of action is same, the plaintiff / first respondent has also filed a separate suit which is also contested by the fourth defendant or appellant by filing written statement. The court expressed that as per law, even on the same cause of action, the plaintiff with leave can file a separate suit. Even in cases, where some prejudice is caused, unless the prejudice goes to the root of the matter, so as to deny the caveator of an indefeasible right to contest on the merits of the case or when his position at the time of filing the suit is not altered, interference is not to be called for, that too after this length of time. In such view of the matter, The Court found no reason to interfere with the discretion exercised by the learned Judge and the order in dismissing the application filed by the appellant to revoke the leave.
Conclusion:
The Court expressed that as per law, even on the same cause of action, the plaintiff with leave can file a separate suit. Even in cases, where some prejudice is caused, unless the prejudice goes to the root of the matter, so as to deny the caveator of an indefeasible right to contest on the merits of the case or when his position at the time of filing the suit is not altered.
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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.
