The discretion of the Court in granting leave to file a separate suit on the same cause of action under Order II Rule 2 of CPC is upheld, and the failure to serve notice on the caveator does not render the order a nullity.

JUDGMENT

(Prayer: Appeal filed under Clause 15 of the Letters Patent read with Order XXXVI Rule 9 of the Original Side Rules against the Order dated 04.07.2018 passed in Application No. 365 of 2010 in Tr.C.S. No. 282 of 2011 on the file of this Court.)

R. Mahadevan, J.

1. 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.

2. (i) The first respondent herein, as plaintiff, has instituted the suit in C.S. No. 272 of 2008 with the following averments:

(ii) 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.

(iii) During December 2005, the plaintiff came to India and at that time, the first defendant informed him that the third defendant is interested to purchase the suit property as also the property owned by her and another sister Vyjayanthi. However, the first defendant did not furnish the details of offer made by the third defendant and therefore, the plaintiff did not evince interest to sell the property. After the plaintiff returned to United States of America, he came to know that the first defendant was attempting to sell the plaint schedule property without his knowledge by misusing the power of attorney deed given by him. Therefore, on 28.01.2006, the plaintiff cancelled the Power of Attorney deed dated 10.07.2000 given to his sister, the first defendant and it was also acknowledged by the first defendant on 18.02.2006.

(iv) While so, the plaintiff received a letter dated 03.08.2006 from second defendant, referring to the letter of the third defendant to take care of the court proceedings initiated by Deepak Jain of Mahaveer Finance and Builders Pvt Ltd. The second defendant also stated that the first defendant and other sister of the plaintiff Ms. Vyjayanthi have already given power to the third defendant and therefore it is advisable that the plaintiff also gives power of attorney to the third defendant, who is also prepared to pay Rs.50 lakhs to the plaintiff and pay the balance amount in US Dollars. In the letter, the second defendant also assured the plaintiff that the third defendant would solve