Karnataka High Court
Sri H N Venktappa vs Sri Basavaraju on 22 July, 2025
-1-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1376 OF 2013 (SP)
BETWEEN:
SRI H.N.VENKTAPPA
S/O LATE NARAYANASWAMY,
AGED ABOUT 55 YEARS,
R/A DOOR NO.39,
9TH CROSS,
SWIMMING POOL EXTENSION,
MALLESWARAM,
BANGALORE-560003.
...APPELLANT
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI. D. SRINIVAS MURTHY, ADVOCATE)
AND:
Digitally
signed by
SUNITHA K S 1. SRI BASAVARAJU
Location: S/O LATE G.BASAVEGOWDA,
HIGH COURT
OF AGED ABOUT 59 YEARS,
KARNATAKA R/A D.NO. 97, 1ST STAGE,
GOKULAM EXTENSION,
MYSORE-571001.
2. THE COMMISSIONER
MYSORE URBAN DEVELOPMENT AUTHORITY,
JHANSI LAKSHMI BAI ROAD,
MYSORE-571001.
...RESPONDENTS
-2-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
(BY SRI SHARATH S. GOUDA, ADVOCATE FOR RESPONDENT
NO.1(NOC VK FILED),
SRI. SHARATH GOUDA G.B., ADVOCATE FOR RESPONDENT
NO.2,
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 24.04.2013 PASSED IN
R.A.NO.347/2011 ON THE FILE OF THE III ADDL. DISTRICT
AND SESSIONS JUDGE, MYSORE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
07.03.2011 PASSED IN O.S.NO.784/2006 ON THE FILE OF THE
JUDGE, COURT THE PRL. JUDGE, COURT OF SMALL CAUSES
AND SENIOR CIVIL JUDGE, MYSORE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellant
challenging the judgment and decree dated 24.04.2013
passed in R.A.No.347/2011 by the learned III Addl.
District & Sessions Judge, Mysore and the judgment and
decree dated 07.03.2011 passed in O.S. No.784/2006 by
the Learned Principal Judge, Small Causes & Senior Civil
Judge, Mysore.
2. For convenience, the parties are referred to,
based on their ranking before the Trial Court. The
-3-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
appellant was the defendant No.1, respondent No.1 was
the plaintiff, and respondent No.2 was defendant No.2.
3. Brief facts, leading rise to the filing of this
appeal, are as follows:
(i) The plaintiff filed a suit against the defendants for
the relief of specific performance of a contract. It is the
case of the plaintiff that defendant No.2 allotted the suit
site in favour of defendant No.1. Defendant No.1 is the
owner in possession of the suit site and he agreed to sell
the suit schedule property for a consideration of
Rs.7,00,000/- and the sale agreement was executed on
10.10.2005. The plaintiff paid a amount of Rs.5,50,000/-
as an advance sale consideration amount, and it was
agreed that the balance sale consideration amount would
be paid within two months from the date of execution of
the sale agreement i.e., at the time of registratioin of sale
deed and to conclude the sale proceedings. The defendant
No.1 approached the plaintiff and requested to pay
Rs.1,00,000/- out of the balance sale consideration
-4-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
amount. The plaintiff paid Rs.1,00,000/- out of the balance
sale consideration amount to defendant No.1. The plaintiff
requested defendant No.1 to execute a registered sale
deed by receiving the balance sale consideration amount
of Rs.50,000/-. Despite the request made by the plaintiff,
defendant No.1 did not come forward to receive the
balance sale consideration amount.
(ii) The plaintiff, to demonstrate that he was/is
always ready and willing to perform his part of a contract
got issued a legal notice on 22.06.2006, calling upon
defendant No.1 to receive the balance sale consideration
amount and execute the registered sale deed. The
Defendant No.1 though replied to the legal notice
however, did not perform his part of a contract. Hence, a
cause of action arose for the plaintiff to file a suit for
specific performance of a contract. Accordingly, prays to
decree the suit.
(iii) Defendant No.1 filed a Written Statement
admitting the execution of a sale agreement and receipt of
-5-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
Rs.5,50,000/- as an adverse sale consideration amount. It
is contended that the plaintiff did not intend to perform his
part of a contract. It is also contend that the plaintiff filed
a suit in O.S.No.349/2006 against defendant No.1 for the
relief of a permanent injunction, on the file of the I
Additional Civil Judge & JMFC, Mysore. The present suit is
not in compliance with Order 2 Rule 2 of the CPC. Hence,
prays to dismiss the suit.
4. The Trial Court, based on the pleadings of the
parties, framed the following issues:-
1. Whether the defendant proves that suit of
the plaintiff is not maintainable in view of Order
2 Rule 2 of CPC as pleaded?
2. Whether the plaintiff proves that he was
ready and willing to perform his part of the
contract as pleaded?
3. Whether the defendant proves that the
period for extension of contract as fixed in the
agreement was over and as such he is not bind
to the said agreement dated 10.10.2005?
-6-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
4. Whether the plaintiff proves that he is
entitled for the relief as claimed?
5. For what decree or order?
5. The plaintiff, to substantiate his case, examined
himself as P.W-1, examined one witness as P.W-2, and
marked 10 documents as Exs.P1 to Exs.P10. In rebuttal,
the defendant No.1 was examined as D.W.1, and marked
3 documents as Exs.D1 to Exs.D3. The defendant No.2 did
not choose to lead any evidence. The Trial Court, after
recording evidence, hearing both sides, and on assessing
the verbal, and documentary evidence, answered issue
No.1 and 3 in the Negative, issue No.2 and 4 in the
Affirmative, and issue No.5 as per the Final Order. The suit
of the plaintiff was decreed with cost vide judgment dated
07.03.2011. Defendant No.1 was directed to execute a
registered sale deed by receiving the balance sale
consideration amount of Rs.50,000 based on agreement of
sale dated 10.10.2005 in favour of the plaintiff, and to
deliver the vacant possession of the suit schedule property
-7-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
to the plaintiff. Further, if defendant No.1 fails to execute
the registered sale deed as ordered within sixty days from
the date of the judgment, the liberty was reserved to the
plaintiff to deposit the balance sale consideration amount
in the Court, and get registered a sale deed by appointing
a Court Commissioner in accordance with law.
6. Defendant No.1, aggrieved by the judgment and
decree passed in O.S.No.784/2006 preferred an appeal in
R.A.No.347/2011 on the file of the learned III Additional
District & Sessions Judge, Mysore. The First Appellate
Court, after hearing the learned counsel for the parties,
framed the following points for consideration:
1. Whether the plaintiff was not ready
and willing to perform his part of Agreement
and the Trial Court erred in decreeing the
plaintiff’s suit for Specific Performance?
2. Whether the suit for Specific
Performance is barred u/o 23 Rule 1 of CPC, in
view of withdraw of O.S.No.349/2006 without
reserving right to sue on same cause of action?
-8-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
3. Whether the present Suit for Specific
Performance is barred U/o 2 Rule 2 of CPC in
view of filing of suit O.S.No.349/2006?
4. What Order or Decree?
7. The First Appellate Court, after re-assessing the
verbal and documentary evidence, answered Point Nos.1
to 3 in the “Negative”, and point No.4 as per the Final
Order. The appeal was dismissed vide judgment dated
24.04.2013, confirming the judgment passed in
O.S.No.784/2006.
8. Defendant No.1, aggrieved by the impugned
judgments, filed this Regular Second Appeal
9. Heard the arguments of Sri. Ashok Haranahalli,
learned Senior counsel for Sri. K.P. Bhuvan, learned
counsel for defendant No.1, and Sri. Sharath Gowda G.B
for the plaintiff.
10. Learned senior counsel for defendant No.1
submits that defendant No.1 is the only allottee, and
defendant No.2 has not executed registered sale deed in
-9-
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
favour of defendant No.1. The sale agreement executed by
defendant No.1 in favour of plaintiff is unenforceable as
per Section 17 of the Specific Relief Act, 1963. He also
submits that both Courts below without considering that
defendant No.1 had no title over the suit schedule
property as on the date of execution of the sale
agreement, passed the impugned judgments. The
impugned judgments passed by the Courts below are
contrary to Section 17 of the Specific Relief Act, 1963. He
also submits that the plaintiff has failed to prove that he
was/is ready and willing to perform his part of a contract,
and there is no compliance with Section 16(c) of Specific
Relief Act, 1963. He also submits that before the filing of
instant suit, the plaintiff had filed a suit in
O.S.No.349/2006 against defendant No.1 for the relief of a
perpetual injunction, and the said suit was withdrawn by
the plaintiff without reserving any liberty to file a fresh suit
on the same cause of action. He submit that the suit is hit
by Order 2 Rule 2 of the CPC 1908.
– 10 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
11. To buttress his arguments, he placed reliance
on the judgments of the Hon’ble Apex Court; which are as
follows:
1. Pemmada prabhakar and others Vs. Youngmen’s
Vysya Association and others reported in (2015)
5 SCC 355.
2. Jai Kishan Garg Vs. Randhir Singh reported in
2024 SCC Online SC 3935.
3. Suraj Lamp and Industries Pvt. Vs. State of
Haryana and another reported in (2012) 1 SCC
656.
4. Virgo Industries (Eng.) Private Limited Vs.
Venturetech Solutions Private Limited reported
in (2013) 1 SCC 625.
5. University of Agricultural Sciences Vs. Saroj
Gupta reported in (2021) 16 SCC 768.
6. Narayanamma and another Vs. Govindappa and
others reported in (2019) 19 SCC 42.
7. U.N. Krishnamurthy Vs. A.M. Krishnamurthy
reported in (2023) 11 SCC 775.
8. Pydi Ramana Vs. Davrasety Manmadha Rao
reported in (2024) 7 SCC 515
– 11 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
9. Sangita Sinha Vs. Bhawana Bhardwaj and
others reported in (2025) SCC Online SC 723.
12. He submits that the impugned judgments
passed by the Court below are arbitrary, and perverse. He
also submits that both the Courts below have not properly
exercised the discretion under Section 20 of the Specific
Relief Act 1963. He submits that the impugned judgments
passed by the Court below are liable to be set aside.
Accordingly, prays to allow the appeal.
13. Per contra, the learned counsel for the plaintiff
submits that Section 17 of the Specific Relief Act 1963
applies to the vendor, and not to the purchaser. He
submits that defendant No.1 has not taken a defense in
the Written Statement regarding Section 17 of the Specific
Relief Act 1963.
14. He also submits that defendant No.1 made the
plaintiff to believe that he had got a valid title over the suit
schedule property, and entered into a sale agreement with
the plaintiff, and received a total consideration of
– 12 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
Rs.6,00,000/-. He submit that the plaintiff was/is always
ready and willing to perform his part of a contract. On the
other hand defendant No.1 committed a breach of a
contract. As per Rule 20 of the Karnataka Urban
Development Authority (Allotment of Sites) Rules, 1991,
he submits that, in case allottees have sold directly, after
the completion of lease period of ten years, without
getting the sale deed with or without constructing a house,
the sale deed may be executed after collecting the penalty
at the rate of 25% of the registration value fixed from
time to time by the Government from the purchaser. He
submits that as per Clause (d) of sub-rule (3) of Rule 20 of
Karnataka Urban Development Authority (Allotment of
Sites) Rules, 1991, defendant No.2 is bound to execute a
registered sale deed in favour of the plaintiff as defendant
No.1, the allottee has agreed to sell the suit schedule
property in favour of the plaintiff. He also submits that the
plaintiff in O.S.No.349/2006 has reserved the liberty to file
a suit for specific performance of a contract. He also
– 13 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
submits that the cause of action in O.S.No.349/2006, and
the cause of action in the instant suit are different. He
submits that the suit filed by the plaintiff for a specific
performance of a contract is maintainable. He submits that
the provisions of Order 2 Rule 2 of CPC do not apply to the
case on hand. He also submits that defendant No.1
admitted regarding the execution of a sale agreement in
favour of the plaintiff. Both the Courts below, considering
the admission of defendant No.1 in the Written Statement,
regarding the execution of the sale agreement, and receipt
of Rs.5,50,000/-, though defendant No.1 denied the
receipt of Rs.1,00,000/- have rightly passed the impugned
judgments. The plaintiff has produced the endorsement to
show that defendant No.1 has received Rs.1,00,000/- out
of the balance sale consideration amount. Hence, on these
grounds, he submits that both the Courts below have
rightly passed the impugned judgments. Accordingly, he
placed reliance on the judgments of the Hon’ble Apex
Court in the case of P. Ramasubbamma Vs. V.
– 14 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
Vijayalakshmi & Ors reported in AIR 2022 SC 1793,
State Of Jharkhand vs. Govind Singh reported in AIR
2005 SC 294, judgment of this Court in case of
B.V.Basavaraj, since deceased represented by his
LRs vs. K.L.Kumaraswamy and Another reported in
ILR 2019 KAR 1899, Judgment of the Hon’ble Apex
Court in the case of Kannappa Chettiar Vs Abbas Ali
and others, reported in (1952) 2 SCC 124, Judgment of
the Hon’ble Apex Court in the case of Sri. M.S.
Ananthamurthy and Another vs J. Manjula in Civil
Appeal Nos.3266-3267/2025 dated 27.02.2025, Indian
Overseas Bank vs. M.A.S. Subramanian & Ors. Dated
07.01.2025, the Judgment of the Hon’ble Apex Court in
the case of Rama Kt. Barman (Dead) Thr. LRS Vs. Md.
Mahim Ali & Ors., in Civil Appeal No.3500/2024, the
Judgments of the Hon’ble Apex Court in the case of
Rathnavathi & Anr vs Kavita Ganashamdas reported
in (2015) 5 SCC 223, B.S.Lakshman V. Puttashetty
and others in RSA No.1358/2022 disposed on
– 15 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
27.06.2025, Gurinderpal Vs. Jagmitter singh reported
in (2004) 11 SCC 219, Sucha Singh Sodhi (Dead)
through LR’s V. Baldev Raj Walia and another
reported in (2018) 6 SCC 733, Dalmia Cement
(Bharat) Ltd., Vs. Uthandi Alias Peria Uthandi alias
Peria Uthandi reported in AIR 2005 MADRAS 457, G.L.
Bansal V. Chairman of Bhakra Beas reported in AIR
1985 Punjab and Haryana 219 and Cuddalore
Powergen Corporatin Ltd. V. M/s Chemplast
Cuddalore Vinyls Limited and another in
C.A.Nos.372-373/2025. Hence, he submits that the
impugned judgments passed by the Court below are just
and proper and does not call for any interference. Hence,
on there grounds, prays to dismiss the appeal.
15. Learned counsel for defendant No.2 adopts the
arguments of the learned counsel for the plaintiff.
16. This Court, vide order dated 01.10.2013,
framed the following substantial questions of law: –
– 16 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013HC-KAR
1. “Was the suit filed by the respondent in
O.S.No.784/2006 seeking a decree to enforce
for specific performance of agreement to sell
was maintainable, as it had not reserved such
right in O.S.No.349/2006 but filed earlier? (Due
to oversight it is numbered as 389, it should be
read as 349/2006)
2. Whether during the pendency of the suit
with a limited relief can the plaintiff file another
suit for substantive relief and whether such a
suit was maintainable under Order 2 Rule 2 of
the Code of Civil Procedure?”
17. Additional substantial question of law was framed on
11.07.2025, which reads as follows:
“Whether both the Courts below were justified
in passing the impugned judgment, without
considering that as on the date of execution of
alleged Sale Agreement, defendant No.1 had no
title over the suit schedule property and is
contrary to Section 17 of the Specific Relief Act,
1963?”
– 17 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
18. Regarding Additional substantial question of
law: Additional substantial question of law is taken for
discussion.
18.1. The plaintiff filed the suit for a specific
performance of a contract contending that defendant No.1
is the allottee. It is contended that the MUDA had allotted
suit scheduled property in favour of defendant No.1, and
he agreed to sell the same in favour of the plaintiff for a
consideration of Rs.7,00,000/-, and the plaintiff paid
Rs.5,50,000/- towards the advance sale consideration
amount, and accordingly, defendant No.1 executed the
sale agreement in favour of the plaintiff on 10.10.2005. It
was agreed that the plaintiff would pay the balance sale
consideration amount within two months from the date of
execution of a registered sale agreement, and get the
registered sale deed executed. Meanwhile, defendant No.1
approached the plaintiff and requested to pay the portion
of the balance sale consideration amount of Rs.1,00,000/-.
The plaintiff paid Rs.1,00,000/- to defendant No.1 out of
– 18 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
the balance sale consideration amount. The balance sale
consideration amount payable by the plaintiff to the
defendant is only Rs.50,000/-. Thus, the plaintiff in all has
paid a sum of Rs.6,50,000/- towards the advance sale
consideration amount. The plaintiff, after the expiry of two
months, requested defendant No.1 to receive the balance
sale consideration amount of Rs.50,000/- and execute a
registered sale deed. Despite oral request made by the
plaintiff, defendant No.1 did not come forward to receive
the balance sale consideration amount, and execute a
registered sale deed. The plaintiff, having fed up with the
delaying attitude of defendant No.1, issued a legal notice
to defendant No.1 on 22.06.2006, calling upon defendant
No.1 to receive the balance sale consideration amount,
and execute a registered sale deed. Defendant no.1
replied to the legal notice, alleging that the plaintiff has
not shown any inclination in performing his part of a
contract. The plaintiff, to substantiate his case, examined
himself as PW.1, and reiterated the plaint averments in
– 19 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
the examination-in-Chief. Further, to prove that defendant
No.1 executed the sale agreement, produced the original
sale agreement marked as Ex.P1. Ex.P2 is the copy of the
endorsement, Ex.P3 is the office copy of the legal notice,
which discloses that the plaintiff, to show that he was / he
is always ready and willing to perform his part of the
contract issued a legal notice to Defendant No.1. Ex.P4 is
the acknowledgment, Ex.P5 is a certified copy of the order
sheet in O.S.No.349/2006, Ex.P6 is a certified copy of the
memo filed in O.S.No.349/2006, wherein the plaintiff had
withdrawn the suit, Ex.P7 is a certified copy of the plaint in
O.S.No.349/2006, wherein the plaintiff has filed a suit for
a perpetual injunction against defendant No.1. In para 10
of the plaint in O.S.No.349/2006, it is stated as follows,
“10. That according to the information of the
plaint, the defendant is yet to obtain title deed in
respect of the schedule site from MUDA. Therefore,
the plaintiff is now reserving his right to institute the
suit for specific performance of the agreement of
sale.”
– 20 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
(Emphasis supplied)
19. The plaintiff has reserved the liberty to file a
suit for specific performance of a contract. Ex.P8 and
Ex.P9 are the accounts statements to show that the
plaintiff has a capacity to pay the balance sale
consideration amount, and Ex.P10 is the reply notice. In
the cross-examination, nothing has been elicited from the
mouth of this witness to disbelieve his evidence. The
plaintiff, also examined one witness as Pw-2, who is an
attesting witness to Ex.P1. He deposed that defendant
No.1 agreed to sell his rights in favour of the plaintiff for a
consideration of Rs.7,00,000/-, and accepted
Rs.5,50,000/- from the plaintiff, and executed the sale
agreement in favour of the plaintiff on 10.10.2005. His
signature is marked as Ex.P1(a), and also, his signature is
affixed on Ex.P2 i.e., endorsement, which discloses that
the plaintiff had received Rs.1,00,000/- out of the balance
sale consideration amount. His signature is marked as
Ex.P2(a).
– 21 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
20. Conversely, defendant No.1 was examined as
DW.1, though, he admits the execution of the sale
agreement in favour of the plaintiff, he deposed that the
plaintiff has not shown any inclination in performing his
part of obligation; hence, for the said reason defendant
No.1 did not perform his part of a contract. He also
deposed that the plaintiff before the filing of instant suit,
filed a suit for perpetual injunction in O.S.No.349/2006.
To prove his defense, he produced the documents. Ex.D1
is a certified copy of the order sheet of O.S.No.349/2006
(Ex.P5 and D1 are one and the same) Ex.D2 is a certified
copy of the plaint in O.S.No.349/2006 (ie., Ex.P7), Ex.D3
is a certified copy of the memo filed by the plaintiff herein
in O.S.No.349/2006 wherein, it is stated that the plaintiff
intends to withdraw the suit in O.S.No.349/2006 (Ex.P6).
21. From the perusal of the entire evidence on
record, there is no dispute that defendant No.2 allotted
the suit schedule property in favour of defendant No.1,
and defendant No.1 agreed to sell his existing rights over
– 22 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
the suit schedule property in favour of the plaintiff, and
accordingly, executed the sale agreement dated
10.10.2005. The plaintiff paid a sum of Rs.5,50,000/-
towards the advance sale consideration amount, and the
defendant No.1 executed the sale agreement marked as
Ex.P1. Defendant No.1 approached the plaintiff and
requested him to pay an amount of Rs.1,00,000/- out of
the balance sale consideration amount. The plaintiff paid
Rs.1,00,000/- to defendant No.1. The plaintiff, in all, paid
Rs.6,50,000/-. The plaintiff to demonstrate that he was/is
always ready and willing to perform his part of a contract,
issued a legal notice on 22.06.2006. Defendant No.1
refuted the legal notice, and denied to perform his part of
a contract. Admittedly, the defendant No.1 himself
has admitted in the written statement regarding the
execution of the sale agreement.
22. Learned Senior counsel for defendant No.1
submits that as of the date of execution of the sale
agreement, defendant No.1 had no title to execute the
– 23 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
sale agreement. The sale agreement executed by
defendant No.1 is unenforceable as per Section 17 of the
Specific Relief Act, 1963. To consider the case on hand, it
is necessary to examine Section 17 of the Specific Relief
Act, 1963, which reads as follows:-
“17. Contract to sell or let property
by one who has no title, not
specifically enforceable.
(1) A contract to sell or let any
immovable property cannot be
specifically enforced in favour of a vendor
or lessor –
(a) who, knowing himself not to
have any title to the property, has
contracted to sell or let the property;
(b) who, though he entered into the
contract believing that he had a good title
to the property, cannot at the time fixed
by the parties or by the count for the
completion of the sale or letting, give the
purchaser or lessee a title free from
reasonable doubt.
– 24 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
(2) The provisions of sub-
section(1) shall also apply, as far as may
be, to contracts for the sale or hire of
movable property.”
(Emphasis supplied)
23. From the perusal of the said provision, it
provides that, a contract to sell or let an immovable
property, cannot be specifically enforced in favour of a
vendor or a lessor. Admittedly, the plaintiff is an intending
purchaser, Section 17 do not apply to the case on hand.
Further, the learned Senior counsel has placed reliance on
the judgment of the Hon’ble Apex court, reported in
(2015) 5 SCC 355. I have perused the judgment.
Admittedly, in the said case, the suit schedule property
was owned and possessed by the father of the defendants
in the said suit, and he died intestate. After his demise,
the defendants have succeeded to the suit schedule
property under Section 8 of the Hindu Succession Act,
1956.
– 25 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
24. The only defendants No.1 and 2, in the said suit
have entered into the sale agreement with the plaintiff and
the other defendants did not enter into a sale agreement
with the plaintiff, and there was no privity of a contract
between the plaintiff, and the other defendants in the said
suit.
25. Defendant No.1 and 2 did not have an absolute
title to the property. The Hon’ble Apex Court held in Para
30, which reads as follows:
“Even assuming for the sake of
argument that the agreement is valid,
the names of three sons are mentioned
in the agreement of sale, out of whom
the agreement is executed by
Defendants 1 and 2 and they assured
that they would get the signatures of the
third brother, namely, Srinivasa Rao and
also of the remaining three sisters. At
the time of execution of this agreement
signatures were not obtained. Therefore,
the agreement is not executed by all the
co-sharers of the property which fact is
– 26 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
evident from the recital of the document
itself. Hence, the plaintiffs are not
entitled for specific performance decree.
26. Admittedly, in the case on hand, the site was
allotted in favour of defendant No.1, and it is not the case
of defendant No.1, that it was allotted for the benefit of
the entire family. In the judgment relied upon by the
learned senior counsel for defendant No.1, the other
family members did not execute a sale agreement in
favour of the plaintiff therein, and there was no privity of
contract between the plaintiff and the other defendants in
the said suit. Hence, the Hon’ble Apex Court has held that
the agreement is not executable by all the co-sharers of
the property. The decision relied upon by the learned
senior counsel does not apply to the case on hand.
27. Learned counsel for the plaintiff has placed
reliance on the judgment of the Co-ordinate Bench of this
Court in the case of B.V.Basavaraj, since deceased
represented by his LRs vs. K.L.Kumaraswamy and
– 27 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
Another, reported in ILR 2019 KAR 1899. The co-
ordinate Bench has held in Para 11, which reads as
follows:
“11. Before formulating the points for
discussion, it is necessary to state here that
in a suit for specific performance filed by
the purchaser against the seller, question of
ownership over the property doesn’t
assume importance because if the
purchaser is ready to purchase the property
from a person with defective title, he runs
the risk of it. Whereas, same is not the
position if the suit is filed by the seller
against a purchaser or lessor against the
lessee. Section 17 of the Specific Relief Act
reads as below:-
“17. Contract to sell or let property by
one who has no title, not specifically
enforceable.
(1) A contract to sell or let any
immovable property cannot be
specifically enforced in favour of a
vendor or lessor –
(a) who, knowing himself not to
have any title to the property, has
contracted to sell or let the property;
– 28 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
(b) who, though he entered into
the contract believing that he had a
good title to the property, cannot at
the time fixed by the parties or by the
count for the completion of the sale or
letting, give the purchaser or lessee a
title free from reasonable doubt.
(2) The provisions of sub-section(1)
shall also apply, as far as may be, to
contracts for the sale or hire of
movable property.”
Language of the section is very clear. Here,
the suit is filed by purchaser against the
seller. It is not necessary to discuss the
point raised by the learned counsel for the
respondent that the suit property was
exclusive property of the first defendant.
28. Admittedly, in the instant case, the suit is filed
by the purchaser, and not by the seller. As observed
above Section 17 applies to the purchaser / lessor, and
not to the Vendee and lessee. Considering the proposition
laid down by the Co-ordinate Bench of this Court in the
case of B.V.Basavaraj, since deceased represented by
LRs (supra), I do not want to take a different view from
the view, which has already been taken by the Co-ordinate
Bench of this Court in the aforesaid case.
– 29 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
29. Further, it is also not in dispute that defendant
No.2 has allotted the suit schedule property in favour of
defendant No.1, and defendant No.1, has agreed to
transfer the said property in favour of plaintiff. Hence, it
cannot be said that the defendant No.1 had no right over
the suit schedule property as of the date of execution of
the sale agreement, because, already as observed above,
defendant No.2 has allotted the suit site in favour of
defendant No.1. Though, this point was not raised before
the Courts below, and as the point raised by the learned
senior counsel involves a legal issue. Hence, in view of the
above discussion, the issue has been settled before this
Court. The Trial Court, and the first Appellate Court had no
opportunity to pass the judgments considering Section 17
of the Specific Relief Act, 1963. In view of the above
discussion, I answer additional substantial question in the
“Affirmative”.
Regarding Substantial Questions of Law No.1 and 2:
30. Substantial question of law Nos. 1 and 2 are
– 30 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
interlinked with each other; hence, they are taken
together for a common discussion to avoid the repetition
of facts.
30.1. The plaintiff had earlier filed a suit for a
perpetual injunction restraining the defendants from
alienating the suit schedule property or the alternative site
bearing No.5179 measuring 12×18 meters situated at
Dattagalli, 3rd Stage, Mysore, to any person other than the
plaintiff. The said suit was filed on 15.04.2006, and
subsequently, the plaintiff filed a memo for withdrawal.
The said copy of the plaint is marked as Ex.D3 (Ex.P6).
From the perusal of the plaintiff in O.S.No.349/2006, the
plaintiff has pleaded in Para 10 of the plaint, which reads
as follows:-
“10. That according to the information of
the plaint, the defendant is yet to obtain
title deed in respect of the schedule site
from MUDA. Therefore, the plaintiff is now
reserving his right to institute the suit for
– 31 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013HC-KAR
specific performance of the agreement of
sale.”
31. The plaintiff filed a memo on 18.07.2006 for
withdrawal of suit. The Trial Court, vide order dated
18.07.2006, permitted the plaintiff to withdraw the suit,
and the suit was dismissed as not pressed. During the
pendency of suit in O.S.No.349/2006, the plaintiff filed the
present suit, i.e., on 13.07.2006, for the specific
performance of a contract.
32. The Hon’ble Apex Court in the case of
Kannappa Chettiar Vs Abbas Ali and others, reported
in (1952) 2 SCC 124, held that, the defendant, vendor
cannot be allowed to urge his own defective title (even if it
were so) as an answer to a suit for specific performance
by the plaintiff/vendee. The vendor was bound in law to
execute a conveyance in accordance with the terms of the
agreement, and his right, title or interest, whatever it
might be, would pass under the same. Furthermore, even
if the title of the vendor was defective, the decree of
– 32 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
specific performance would bind any title acquired by the
vendor to the suit property upon inheritance or other
questions like estoppel under Section 41 of the Transfer of
Property Act, 1882 may arise.
33. Learned counsel for the plaintiff submits that
the instant suit is maintainable, and it is not hit by Order 2
Rule 2 of the CPC. From the perusal of the cause of action
shown in O.S.No.349/2006, and the cause of action shown
in the instant suit, it is clear that both are different. They
are not based on the same cause of action. The Hon’ble
Apex Court in the case of Rathnavathi and Another Vs.
Kavita Ganashamdas, reported in (2015) 5 SCC 223,
held in Para 29-30 and 31, which reads as follows:-
“29. The submission has a fallacy for
two basic reasons. Firstly, as held above,
cause of action in two suits being different,
a suit for specific performance could not
have been instituted on the basis of cause
of action of the first suit. Secondly, merely
because pleadings of both suits were
similar to some extent did not give any
– 33 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013HC-KAR
right to the defendants to raise the plea of
bar contained in Order II Rule 2 of CPC. It
is the cause of action which is material to
determine the applicability of bar under
Order II Rule 2 and not merely the
pleadings. For 21 Page 22these reasons, it
was not necessary for plaintiff to obtain
any leave from the court as provided in
Order II Rule 2 of CPC for filing the second
suit.
30. Since the plea of Order II Rule 2, if
upheld, results in depriving the plaintiff to
file the second suit, it is necessary for the
court to carefully examine the entire
factual matrix of both the suits, the cause
of action on which the suits are founded,
reliefs claimed in both the suits and lastly
the legal provisions applicable for grant of
reliefs in both the suits.
31. In the light of foregoing discussion,
we have no hesitation in upholding the
finding of the High Court on this issue. We,
therefore, hold that second suit (OS No.
2334 of 2000) filed by the plaintiff for
specific performance of agreement was not
barred by virtue of bar contained in Order
II Rule 2 CPC.”
– 34 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
34. From the proposition laid down by the Hon’ble
Apex Court, it is clear that, a cause of action in the latter
suit must be the same as that of the previous suit, the
similarity of the ingredients for claiming the reliefs in two
suits is also relevant. The Court must examine the cause
of action, the relief claimed, the legal proposition
applicable for the grant of reliefs, and the entire factual
matrix of both suits.
35. Admittedly, in the instant case, from the
perusal of the cause of action shown in the plaint, the
cause of actions are different in both the suits, and the
relief claimed in both the suits are different. The plaintiff
had sought a relief of perpetual injunction restraining
defendant No.1 from alienating the suit schedule property
in O.S.No.349/2006. The Hon’ble Apex Court, in the case
of Inbasegaran & Anr Vs. S. Natarajan (Dead)
Through LRs reported in AIR 2015 SC (SUPP) 1591,
held in Paras 26,27,30 and 33, which reads as follows:
– 35 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013HC-KAR
“26. In the light of the principles
discussed and the law laid down by the
Constitution Bench as also other decisions
of this Court, we are of the firm view that
if the two suits and the relief claimed
therein are based on the same cause of
action then only the subsequent suit will
become barred under Order 2, Rule 2 of
the CPC. However, when the precise cause
of action upon which the previous suit for
injunction was filed because of imminent
threat from the side of the defendant of
dispossession from the suit property then
the subsequent suit for specific
performance on the strength and on the
basis of the sale agreement cannot be
held to be the same cause of action. In
the instant case, from the pleading of both
the parties in the suits, particularly the
cause of action as alleged by the plaintiff
in the first suit for permanent injunction
and the cause of action alleged in the suit
for specific performance, it is clear that
they are not the same and identical.
27. Besides the above, on reading of the
plaint of the suit for injunction filed by the
plaintiff, there is nothing to show that the
– 36 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
plaintiff intentionally relinquished any
portion of his claim for the reason that the
suit was for only injunction because of the
threat from the side of the defendant to
dispossess him from the suit property. It
was only after the defendant in his suit for
injunction disclosed the transfer of the suit
property by the Housing Board to the
defendant and thereafter denial by the
defendant in response to the legal notice
by the plaintiff, the cause of action arose
for filing the suit for specific performance.
30. It is well settled that the ratio of any
decision must be understood in the
background of the facts of that case. The
following words of Lord Denning in the
matter of applying precedence have been
locus classicus. “Each case depends on its
own facts and a close similarity between
one case and another is not enough
because even a single significant detail
may alter the entire aspect, in deciding
such cases, one should avoid the
temptation to decide cases (as said by
Cardozo) by matching the colour of one
case against the colour of another. To
decide therefore, on which side of the line
– 37 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
a case falls, the broad resemblance to
another case is not at all decisive.”
XXX
33. Further, taking into consideration
all these facts, we are of the considered
opinion that the conclusion arrived at by
the High Court that the suit is barred
under Order 2 Rule 2 CPC cannot be
sustained in law.”
36. In para 29 of the aforementioned judgment, the
Hon’ble Apex Court held that in the case therein as
discussed above, the suit for injunction was filed since
there was a threat from the side of the defendant to
dispossess him from the suit property. The plaintiff did not
allege that defendant is threatening to alienate or transfer
the property to the third party in order to frustrate the
agreement and also held in para 35 that, subsequently the
plaintiff filed a suit for specific performance of the contract,
and also held that the suit is barred under Order 2 Rule 2,
cannot be sustainable in law.
– 38 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
37. The learned senior counsel for defendant No.1
also placed reliance on the judgment of the Hon’ble Apex
Court in the case of Virgo Industries (Eng.) Private
Limited Vs. Venturetech Solutions Private Limited
reported in (2013) 1 SCC 625. The Hon’ble Apex Court
held that the object behind Order 2 Rule 2 of the CPC,
1908, is to avoid the multiplicity of the proceedings on the
same cause of action. Subsequent suit for a specific
performance is not maintainable when the same could not
have been sought for, in the first suit seeking a relief of
injunction. As observed above, the cause of action in both
the suits are different, and the relief sought in both the
suits are different. Hence, the contraction that suit is
barred under Order 2 Rule 2 of the CPC is unsustainable in
the law, and further, he also placed reliance on the
judgment of the Hon’ble Apex Court in the case of
University of Agricultural Sciences Vs. Saroja Gupta
reported in (2021) 16 SCC 768. The Hon’ble Apex
Court held that bare reading of the provisions of Order 23
– 39 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
Rule 1(4) makes it crystal clear that the plaintiff can, as
against all or any of the defendants, abandon his suit or
abandon a part of his claim with the permission to file
fresh suit in respect of the very same subject-matter or
such part of the claim. The Court under Order 23 Rule 1(3)
can grant permission to file fresh suit in the exigencies
provided under Order 23 Rules 1(3)(a) and (b); in case
permission has not been granted under Order 23 Rule
1(3), Rule 1(4) of Order 23 precludes institution of fresh
suit in respect of such subject-matter or its part of the
claim. Admittedly, in the instant case, the plaintiff in
O.S.No.349/2006 has reserved his right to file a suit for a
specific performance of the contract. So, the plaintiff has
already reserved the liberty to file a suit for specific
performance of the contract. Merely, because the plaintiff
has filed the memo for withdrawing the suit, it doesn’t
preclude the plaintiff from instituting the suit for a specific
performance of a contract. The judgment relied upon by
– 40 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
the learned senior counsel for defendant No.1 does not
apply to the case on hand.
38. Learned Senior counsel for defendant No.1
submits that the plaintiff has failed to prove that he was/is
ready, and willing to perform his part of a contract, and to
buttress his arguments, he has placed a reliance on the
judgment of the Hon’ble Apex Court in the cases of
U.N.Krishnamurthy Vs. A.M.Krishnamurthy reported
in (2023) 11 SCC 775, and Pydi Ramana @ Ramulu
vs. Davrasety Manmadha Rao reported in (2024) 7
SCC 515. The plaintiff, to establish that the plaintiff was/is
ready and willing to perform his part of a contract, issued
a legal notice on 22.06.2006. Though, defendant No.1 has
contended that the plaintiff has not shown any inclination
in performing his part of a contract, if that was so,
defendant No.1 ought to have issued a notice calling upon
the plaintiff to pay the balance sale consideration amount,
and get executed the registered sale deed and to perform
his part of a contract. Defendant No.1 has not issued the
– 41 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
legal notice. Defendant No.1 has admitted in the course of
cross-examination that he has not issued a legal notice to
the plaintiff calling upon him, to perform his part of a
contract. The plaintiff has already paid a substantial
portion of the consideration amount and only a meagre
amount is remained for the payment of balance sale
consideration amount. The plaintiff has also produced the
bank statement, which discloses that the plaintiff was
ready and willing to perform his part of a contract. Thus,
the judgments relied upon by the learned senior counsel
for defendant No.1 does not apply to the case on hand.
39. Though, defendant No.1 being an allottee,
whether defendant No.1 can sell the suit schedule property
in favour of the plaintiff. To consider the case on hand, it
is necessary to examine Rule 20 of the Karnataka Urban
Development Authority (Allotment of Sites) Rules, 1991,
which reads as follows:-
“20. Restrictions, Conditions on sale
of sites-
– 42 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013HC-KAR
(1) The allottee shall not alienate
the site within the lease period of ten
years except mortgaging the site in favour
of Government of India or the State
Government or any financial institutions
for the purpose securing loan for the
construction of building.
(2) If the site is alienated within
the lease period except for the purpose
specified in sub-rule(1), the Authority
after a due notice to the lessee, shall
cancel the allotment, resume the site and
forfeit the amount paid by the lessee.
(3) Notwithstanding anything
contained in these rule if the lessee
applies for reasons beyond his control or
by reasons of his insolvency or
impecuniosities to sell the site or the site
with the building constructed thereupon,
the authority may, with the previous
approval of the Government, either.-
(a) Require him to surrender the
site, whereupon no building is
constructed. The Authority after such
surrender shall pay to the lessee the sital
– 43 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
value with the interest at the rate of 12%
per annum;
(b) Where the building is
constructed on the site so allotted the
authority shall permit him to sell the
building provided the lessee pays to the
authority an amount calculated at 12% of
the sital value per annum.
“Provided that,
(a) In cases where the sites
allottees under the Karnataka Urban
Development Authorities (Allotment of
Sites) Rules, 1991, have been sold by the
allottees directly within the lease period of
10 years in violation of allotment
conditions (as per conditions of the
allotment).
(b) with/without constructing a
house, sale deeds may be issued after
collecting penalty at the rate of 50% of
the registration value fixed from time to
time by the Government, from the
purchaser.
(c) In cases where the sites allottees
under the Karnataka Urban Development
– 44 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
Authorities (Allotment of Sites) Rules,
1991, have been sold by the allottees
directly after the completion of lease
period of 10 years without getting sale
deeds with/without constructing a house
the sale deeds may be issued after
collecting penalty at the rate of 25% of
the Registration value fixed from time to
time by the Government, from the
purchaser.
(d) In cases where the allottees of
sites allotted during the period of 2001 to
2005 (i.e., during the period for the
amendment Rules, 2005 made out to the
Karnataka Urban Development Authorities
(Allotment of Sites) Rules, 1991 vide
Government Notification No. UDD 123
Bem Ru Pra 2005, dated: 23.05.2005 as
per the amendment brought to the
Karnataka Urban Development Authorities
(Allotment of sites) Rules, 1991 vide
Government Notification No. UDD 257 MIB
98, dated: 15.11.2001 cases have not
obtained the sale deeds so far, sale deeds
may be issued after collecting penalty at
the rate of 25% of the registration value
– 45 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
as fixed by the government from time to
time.
(e) In cases where the allottees of
sites allotted under the Karnataka Urban
Development Authorities (Allotment of
Sites) Rules, 1991, have got executed
G.P.A within the lease period or after the
lease period with/without constructing
house, before obtaining sale deeds and
such sites/houses have been purchased
through the G.P.A, sale deeds may be
issued only after collecting penalty from
the purchaser at the rate of 50% of the
Registration value fixed by the Sub-
Registrar.”
40. From the perusal of Clause ‘C’ of Rule 20 Sub-
rule (3) in case where the sites allottees under the
Karnataka Urban Development Authorities (Allotment of
Sites) Rules, 1991 have been sold by allottees directly,
after the completion of the lease period of 10 years,
without getting the sale deed, with/without constructing
the house. The sale deed may be issued after collecting
the penalty at the rate of 25% of the registration value
– 46 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
fixed from time to time, by the Government, from the
purchaser. Admittedly, defendant No.1 is the allottee and
agreed to sell the suit schedule property in favour of the
plaintiff. The plaintiff can take sale deed executed from
defendant No.2 by paying a penalty at the rate of 25% of
the registration value. The agreement executed by
defendant No.1 in favour of the plaintiff is a voidable
contract at the instance of the authority, and not void-ab-
initio. Rule 20 was substituted by Notification No. UDD 123
Bem Ru Pra 2005, dated 23.05.2005, and the said rule
came into effect from 23.06.2005. Admittedly, the sale
agreement was executed subsequent to the rule coming
into force i.e., 10.10.2005. Therefore, Rule 20 (Rules,
1991) is applicable to the case on hand. The Courts below,
after considering the entire material placed on record,
were justified in passing the impugned judgments. In view
of the above discussion, I answer substantial questions of
Law Nos. 1 and 2 in the “Affirmative”.
– 47 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
41. Defendant No.1 filed an application in
I.A.1/2013 for the production of additional evidence under
Order 41 Rule 27 of the CPC, in support of the application,
filed an affidavit stating that, the plaintiff filed a suit for
specific performance against defendant No.1 on the sale
agreement dated 10.10.2005 and such other relief. It is
stated that the property was allotted to defendant No.1 by
MUDA executing a lease-cum-sale agreement for a period
of ten years. The plaintiff has no right, title or interest
over the property. The Court below has no right to
entertain the suit. It is stated that defendant No.2 is on
record, but failed to file a written statement, and not
produced any document also. The document pertains to
defendant No.2, and defendant No.1 has no right to sell
the property to the plaintiff. It is stated that the plaintiff
did not perform his part of contract, and he has not come
forward within the stipulated period. After the expiry of
the period, he issued a legal notice and defendant No.1
replied to the legal notice, stating that the plaintiff had not
– 48 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
shown any inclination in performing his part of a contract.
Hence, he prays to allow the application. The plaintiff did
not file his objections to the said application.
42. Perused the proposed documents, defendant
No.1 has produced the lease-cum-sale agreement dated
19.12.1999, executed by MUDA in favour of defendant
No.1. The said document was executed during the
pendency of the suit. Defendant No.1 has not made any
attempt to produce the proposed documents before the
Courts below. The said document is not relevant for the
purpose of pronouncing the judgment. Defendant No.1 has
not made out any grounds to entertain I.A.1/2013. In view
of the above discussion, the same is liable to be rejected.
43. In view of the above discussion, I proceed to
pass the following order:
ORDER
1. The Appeal is dismissed.
– 49 –
NC: 2025:KHC:28430
RSA No. 1376 of 2013
HC-KAR
2. The judgments and decrees passed by
the Courts below, are hereby
confirmed.
3. I.A.1/2013 is rejected.
4. No order as to the costs.
5. In view of dismissal of the appeal,
pending IA’s, if any, do not survive for
consideration, and are, Accordingly,
disposed of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SHS
List No.: 1 Sl No.: 2
[ad_1]
Source link