Karnataka High Court
Sri H N Venktappa vs Sri Basavaraju on 22 July, 2025
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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
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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-
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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-
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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.
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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
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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
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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
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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.
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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
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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: -
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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?"
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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
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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
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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."
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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).
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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
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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
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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.
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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.
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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
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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
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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;
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(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.
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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
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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 12x18 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
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NC: 2025:KHC:28430 RSA No. 1376 of 2013 HC-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
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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
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NC: 2025:KHC:28430 RSA No. 1376 of 2013 HC-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."
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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:
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NC: 2025:KHC:28430 RSA No. 1376 of 2013 HC-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
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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
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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.
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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
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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
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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
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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-
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NC: 2025:KHC:28430 RSA No. 1376 of 2013 HC-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
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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
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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
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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
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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".
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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
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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.
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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