1 A.No.363 of 2010 in C.S.D.No.7204 of 2008 G.RAJASURIA,J. A 'resume' of facts absolutely necessary and germane for the disposal of this application would run thus: The applicant herein filed A.No.1990 of 2009 seeking permission of the Court to file the suit informa pauperis and the prayers would run thus: "(a) to permit the petitioner to sue as an indigent person; (b) to cancel the sale deed dated 24.3.2005 executed by the 1st defendant under power in favour of the 3rd defendant and registered as document No.2447 of 2005 at SRO, Sembium for the property more fully described in schedule-A here under as null and void and not binding on the plaintiff; (c) to cancel the sale deed dated 24.3.2005 executed by the 1st defendant under power in favour of the 4th defendant and registered as document No.2448 of 2005 at SRO, Sembium for the property more fully described in schedule-B here under as null and void and not binding on the plaintiff; (d) to cancel the sale deed dated 24.3.2006 executed by the 1st defendant under power in favour of the 5th defendant and registered as document No.2449 of 2005 at SRO, Sembium for the property more fully described in https://www.mhc.tn.gov.in/judis 2 schedule-C here under as null and void and not binding on the plaintiff; (e) to declare that the cancellation of power of attorney done by the plaintiff by way of the registered deed of the cancellation of power of attorney dated 7.4.2005 executed by the plaintiff and registered as document No.983/2005 at SRO, Sembium, cancelling the power of attorney dated 29.2.2001 executed by the plaintiff in favour of the 1st defendant and registered as document No.324/01 at SRO, Sembium for the properties more fully described in the schedules A, B and C here under as valid; (f) to cancel the sale deed dated 10.1.2008 executed by the 6th defendant the power of attorney of 4th defendant in favour of the 7th defendant and registered as document No.198 of 2008 at SRO, Sembium for the portion of the property described in schedule-C here under as null and void and not binding on the plaintiff; (g) to direct the defendants to hand over the possession of the suit schedule mentioned properties to the plaintiff, in default to pay Rs.90,00,000/- with interest at 24% from 24.3.2005 till the date of payment; (h) to grant a permanent injunction restraining the defendants 1 to 8, their henchmen, servants and any one acting on their behalf from in any way alienating the suit schedule mentioned properties or any part or parcel of the property thereof to or in favour of any one or any third party." (extracted as such) https://www.mhc.tn.gov.in/judis 3 2. The parties are referred to hereunder according to their litigative status and ranking in the suit. 3. Earlier this Court passed order dated 20.10.2009 setting aside the order dated 30.06.2009 passed by the Master in A.No.1983 of 2009 with the following direction and it is extracted hereunder for ready reference: "The application No.1990 of 2008 and the counter filed therein and also the averments set out in the application shall all be taken together and the matter shall be probed into further and a reasoned order be passed, taking into consideration Order 33 Rule 5 of C.P.C and it is for the parties to adduce oral and documentary evidence, as they may choose." 4. When the matter has gone back to the Master as directed by this Court for the purpose of recording evidence, in respect of the alleged pauperism of the applicant/plaintiff, there were some objections raised on the side of the respondents. Whereupon, the learned Master passed the order dated 09.12.2009 in A.No.1990 of 2009, the operative portion of it would run thus: "Notice given. Order pronounced in terms of Order 20 rule 1(3) CPC. https://www.mhc.tn.gov.in/judis 4 "In the result, this application stands disposed of with a specific order to the following effect: (a) The application fails at the threshold and is rejected under Order 33 Rule 5(f) CPC. (b) This order will not prejudice the applicant/plaintiff's right to seek appropriate amendment in O.S.No.3154/2005, XIV Asst City Civil Court, Chennai or get that suit dismissed with liberty to file a fresh comprehensive suit. (c) The parties shall bear themselves their respective costs."" 5. Being aggrieved by and dissatisfied with the order of the learned Master, this application has been focussed on various grounds, the gist and kernel of them would be to the effect that the Master was not justified in passing such an order; the nature of the present proposed suit is different from the suit pending before the City Civil Court, Chennai. 6. Heard both sides. 7. The point for consideration is as to whether the Master was justified in simply passing the aforesaid order extracted supra, mainly based on Order 33 Rule 5(f) of CPC r/w Order 2 Rule 2 of CPC, without going into the pauperism as alleged by the plaintiff? https://www.mhc.tn.gov.in/judis 5 8. The summation and summarisation of the arguments as put forth on the side of the applicant is that the earlier suit filed before the City Civil Court in O.S.No.3154 of 2005 was for injunction, however, the present suit is a comprehensive one for obtaining possession with connected reliefs and accordingly, he would implore and entreat that Order 2 Rule 2 of CPC would not be applicable. 9. Whereas, by way of torpedoing and pulverising the arguments as put forth on the side of the learned counsel for the applicant, the learned counsel for the respondents would submit thus: As on the date of filing of the suit for bare injunction before the City Civil Court, the applicant according to him, have had enough opportunity to include various reliefs pertaining to cancellation of sale deeds including the Power of Attorney executed by the plaintiff and in such a case, without obtaining leave of the Court under Order 2 Rule 2 CPC, the present proposed suit informa pauperis should not have been filed at all and that absolutely there is no error in the order passed by the Master. Accordingly, he prayed for the dismissal of this application. https://www.mhc.tn.gov.in/judis 6 10. Indubitably and indisputably, the earlier suit filed by the plaintiff for obtaining injunction as against the defendants was mainly for the purpose of protecting her alleged possession as on the date of the filing of the suit and not for anything more. It is therefore, just and necessary to extract hereunder the cause of action paragraph as well as the prayer in the previous suit O.S.No.3154 of 2005: "8. The cause of action for this suit arose at Jambuli Village Fort – Tondiarpet Taluk where the suit property is situate on 22.02.2001 when the plaintiff appointed the 1st defendant as her power agent, on all subsequent days when 1st defendant failed to carry out her duties as agent of plaintiff but acted adverse to the interest of plaintiff and committed breach of trust on 07.04.2005 when plaintiff executed and registered the deed of cancellation, cancelling the power of attorney in favour of 1st defendant on 28.03.2005 when the plaintiff sent her lawyer's notice 1st defendant communicating such cancellation on 28.03.2005 when the defendants acknowledged the receipt of the said notice on 25.4.2005 when defendants and their henchmen illegal attempts to dispossess the plaintiff from the suit property and subsequently de-dia- indiem. (emphasis supplied) https://www.mhc.tn.gov.in/judis 7 PRAYER IN O.S.NO.3154 OF 2005: (a) For a permanent injunction restraining the defendants, their children relatives, agents contractors, employed and any person claiming or acting under them from in any manner interfering with the plaintiff's possession and enjoyment of or from trespassing into the suit property." 11. In the present suit, the cause of action, at the paragraph No.13 would read thus: "13. The plaintiff further submits the cause of action for the above suit arose at Chennai within the jurisdiction of this Hon'ble Court on 09.11.2000 when the plaintiff entered into an agreement of sale with the 2nd defendant, on 08.02.2001 when the agreement of sale became ineffective when not in time, on 22.02.2001 when the plaintiff executed the power in favour of the 1st defendant, on 23.03.2005 when the plaintiff informed the 1st and 2nd defendant about her intent to cancel the power and when 1st and 2nd defendants sought time by one week, on 24.03.2005 when the 1st defendant executed sale deed in favour of the defendants 3 to 5 on 28.03.2005 when the plaintiff issue notice to cancel the power, on 04 and 05.04.2005 when the defendants 1 and 2 replied to the notice, on 07.04.2005 when the plaintiff executed cancellation the power, on 25.04.2005 when the 1st and 2nd defendant made attempts to dispossess https://www.mhc.tn.gov.in/judis 8 the plaintiff, on the 11.05.2005 when the plaintiff filed a civil suit for injunction, on 20.07.2005 when the plaintiff preferred a complaint to the police, on 03.10.2005 when the defendants 1 and 2 filed their Written Statement in the suit, on 28.06.2006 when the plaintiff was attacked by the 2 nd defendants henchmen on 24.08.2007 when the plaintiff was dispossessed from the suit property and the defendants 1 to 7 stated their continuation, and on 05.02.2008 when the plaintiff was examined in chief before the City Civil Judge, Chennai, on 10.01.2008 when the land was transferred in the name of the 7th defendant and on the same day when the 7th defendant has mortgaged the same to the 8th defendant." (emphasis supplied) The prayers in the proposed suit have already been extracted supra. 12. It is a trite proposition of law that a suit for injunction is entirely different from a suit for possession. At this stage, I do not go into the facts as to whether the plaintiff was justified in filing such a suit for injunction. The plaint averments alone have to be taken into consideration while considering pauperism. According to the applicant, during the pendency of the injunction suit O.S.No.3154 of 2005, the applicant herein was dispossessed on 24.08.2007 and hence this comprehensive suit. During the pendency of this application, the https://www.mhc.tn.gov.in/judis 9 plaintiff got that injunction suit dismissed as it was having no legs to stand obviously. I would like to point out that once the plaintiff had chosen to file the present suit for possession of the suit property relating to which already she filed the suit before the City Civil Court for injunction, then automatically that suit for injunction would become nugatory and otiose and the plaintiff should have got long ago dismissed the said suit for injunction. However, during the pendency of this application, the plaintiff got that injunction suit dismissed. 13. Taking into consideration the averments in the present plaint as well as the cause of action and the prayers set out therein, it is clear that as on the date of filing of the suit for injunction before the City Civil Court, the plaintiff could not have filed such a comprehensive suit at all. Further more, the present suit is not once again for injunction with connected reliefs, as her plea is that during the pendency of that earlier suit, she was dispossessed from the suit property and in such a case, it is obvious and axiomatic that Order 2 Rule 2 of CPC is not attracted in matters of this nature. These are all issues of facts which cannot be probed into at this stage. As such Order 2 Rule 2 of CPC cannot be pressed into service at all in the facts and circumstances of this case. https://www.mhc.tn.gov.in/judis 10 14. The learned Master simply misunderstood the case and misapplied Order 2 Rule 2 of CPC. The learned Master was not at all justified in observing in his order that the plaintiff was at liberty to get amended the suit for injunction by getting incorporated all the present reliefs herein in the proposed suit. A Court having no pecuniary jurisdiction cannot allow amendments which are far beyond its jurisdiction. As such on that count also the learned Master was wrong in passing such an order. Order 33 Rule 5(f) of CPC contemplates that if the suit itself is barred ex facie and prima facie, then only it could be rejected. The learned Master should have entertained oral and documentary evidence regarding pauperism, and while deciding that point he was also empowered to decide as to whether the suit was maintainable or not. It seems that the Master partly recorded the evidence, but wrongly entertained the plea of the defendants and simply dismissed the application by passing the order as set out supra. Hence, there is a cleavage and bottomless abyss between the suit which was filed before the City Civil Court and this suit and in such a case, the question of the plaintiff obtaining leave from the City Civil Court for filing this suit also does not arise. https://www.mhc.tn.gov.in/judis 11 15. I would recollect and call up that it is a trite proposition of law that for the purpose of obtaining immediate relief, at times if circumstances so warrant, even bare injunction to protect possession could be filed. But, mechanically and blindly in all circumstances, such a suit cannot be entertained. In singularly singular circumstances, if the plaintiff is not in a position to file comprehensive suit, then in that case, mainly for the purpose of protecting possession, such a measure could be taken, but as a matter of course, a litigant is not expected to file bare injunction suit and thereafter file a comprehensive suit. But in this case, the plaintiff being a lady having no source of income according to her, perhaps thought fit to file such an injunction suit and subsequently she having been dispossessed of the suit property and on some better advice, filed this comprehensive suit seeking possession. In such a case, much of a muchness could not be seen between the two suits and it cannot be stated that the present suit is barred in view of Order 2 Rule 2 of CPC. Having Order 2 Rule 2 of CPC in mind Order 33 Rule 5(f) of CPC should not have been invoked by the Master. As such, the order of the learned Master dated 09.12.2009 is set aside and the matter is remitted back to the Master to comply with the earlier order dated 22.10.2009 and dispose https://www.mhc.tn.gov.in/judis 12 the matter after entertaining evidence and hearing both sides as per law. Post before the Master during the last week of this month. gms 15.04.2010 https://www.mhc.tn.gov.in/judis 13 G.RAJASURIA,J. A.No.363 of 2010 in C.S.D.No.7204 of 2008 15.04.2010 https://www.mhc.tn.gov.in/judis