SRI T G NAGARAJU vs SMT S R GEETHA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 12 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO. 2335 OF 2018 (SP)

BETWEEN:

SRI T G NAGARAJU
S/O LATE GUUSIDDAPPA,
R/AT MIG-III, HOUSE NO.18,
ARALIMARADAPALYA AREA,
KHB COLONY SIRA GATE,
TUMKUR-572 106.
…APPELLANT
(BY SRI. RAMESH K R, ADVOCATE)






AND:

1. SMT S R GEETHA
W/O S.G.MALLIKARJUNA,
WORKING AS TYPIST IN
DISTRICT PROSECUTORS OFFICE
J.M.F.C. TUMKUR-572 101.

2. THE ASSISTANT EXECUTIVE ENGINEER
HOUSING BOARD, TUMKUR SUB DIVISION,
TUMKUR TOWN-572 106.
…RESPONDENTS

(BY SRI.N.K. KANTHARAJU, ADVOCATE FOR C/R-1
R-2 SERVED)






Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 06.08.2018 PASSED IN RA.NO.123/2014
ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 16.02.2013 PASSED ON I.A.NO.3 IN
O.S.NO.115/2012 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND
JMFC, III TUMKUR ALLOWING THE I.A.NO.3 FILED UNDER ORDER VII
RULE 11(d) OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT
This appeal by the plaintiff in O.S.No.115/2012 against the
judgment and decree dated 06.08.2018 passed in
R.A.No.123/2014 by the III Addl. Senior Civil Judge and JMFC,
Tumakuru (for short “the First Appellate Court”), whereby the
application, I.A.No.3 filed by the appellant-plaintiff in
O.S.No.115/2012 was allowed by the II Addl. Civil Judge and
JMFC, Tumakuru (for short “the Trial Court”) and confirmed by the
First Appellate Court.
2. Heard learned counsel for the appellant and learned
counsel for respondent No.1 and perused the material on record.
3. The appeal is admitted to consider the following
substantial questions of law:
“i) Whether the Trial Court and First Appellate Court were
justified in rejecting the plaint of the appellant-plaintiff by
passing the impugned order and judgment and decree,
which are contrary to the principles governing rejection of
plaint as contemplated under Order VII Rule 11 CPC?”

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4. Heard learned counsel for the appellant and learned
counsel for respondent No.1 on the aforesaid substantial question
of law.
5. Though the matter is posted under the caption ‘orders’,
with the consent of both sides, the same is taken up for final
disposal and disposed of by the present judgment.
6. Respondent no. 2 Karnataka Housing Board having
been served, has chosen to remain unrepresented and has not
contested the appeal.
7. A perusal of the material on record will indicate that the
appellant-plaintiff instituted the aforesaid suit against the
respondents-defendants for specific performance of an alleged
agreement of sale dated 04.06.1999 and for other reliefs. The said
suit was contested by respondent No.1-defendant No.1, who filed
her written statement. In addition thereto, respondent No.2-
Karnataka Housing Board (KHB) filed an application I.A.No.3
seeking rejection of plaint under Order VII Rule 11(d) CPC on the
ground that the appellant-plaintiff had not issued the mandatory
pre-suit notice as against respondent No.2-defendant No.2 – KHB

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prior to institution of the suit. The said application having been
opposed/contested by the plaintiff, the Trial Court proceeded to
pass the impugned order dated 16.02.2013 allowing I.A.No.3 and
consequently, rejecting the plaint filed by the appellant-plaintiff and
dismissing the suit filed by him. Aggrieved by the impugned
judgment and decree of the Trial Court, the appellant-plaintiff
preferred an appeal in R.A.No.123/ 2014 which was also dismissed
by the First Appellate Court vide impugned judgment and decree
dated 06.08.2018. Aggrieved by the impugned judgments and
decrees passed by the Trial Court and the First Appellate Court, ,
the appellant- plaintiff is before this Court by way of the present
appeal.
8. In addition to learned counsel for the appellant inviting
my attention to the plaint averments and the relief sought for by the
appellant plaintiff against the respondents-defendant Nos.1 and 2
in order to point out that respondent No.2 was merely a formal
party and no relief had been sought for by the appellant-plaintiff
against respondent No.2 in the suit and consequently, merely
because no pre-suit notice as contemplated under Section 72 of
the Karnataka Housing Board Act had been issued to respondent

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No.2 by the appellant prior to institution of the suit, it cannot be said
that the suit was not maintainable as wrongly held by both the
Courts by passing the impugned judgment and decree, which
deserve to be set aside.
9. Per contra, learned counsel for respondent No.1 fairly
submits that they had not filed any such application and no such
contention/claim was urged or put forth by respondent No.1 before
the Trial Court, first appellate court or before this Court and
appropriate orders may be passed by this Court in the present
appeal.
10. Before adverting to the rival submissions it would be
necessary to extract the plaint averments which are as under:
“UNDER ORDER VII RULE 1 AND 2 OF C.P.CODE;
The Plaintiff named above begs to state as follows:

1. THAT the names and addresses of the parties as
furnished in the cause title are true and correct for the
purposes of service of summons, notice and etc.,

2. THAT the defendant No.1 is the owner of the suit
schedule property, and she was in possession and
enjoyment of the same, and she acquired schedule property
through Regd. sale dated: 17.03.1997 vide Reg. No. 7545

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from the Karnataka Housing Board, Bangalore by its branch
at Tumkur i.e. 2nd defendant, since then the defendant was
in physical possession and enjoyment of the same by
paying Taxes to the Govt. regularly as full and absolute
owner thereof.

3. In the meanwhile, the defendant No. 1 offered to
sell the suit schedule property in favour of the plaintiff,
accordingly the plaintiff also agreed to purchase the
schedule property. The defendant No.1 is agreed to sell the
same in favour of the plaintiff for her legal necessity and his
family benefits. And after negotiation as per the current
Govt. Price the sale price of the suit schedule property was
struck at Rs.4,25,000/-, Further the defendant No.1 has
received a part sale consideration amounts on several days
as she need of the money viz., on 17.12.1998 the defendant
No.1 has received a sum of Rs.1,00,000/- and on
24.12.1998 she has received a sum of Rs.1,00,000/- and on
18.01.1999 she received a sum of Rs.10,000/- like wise the
defendant No.1 had received a sum of Rs.2,10,000/- from
the plaintiff on various dates.

4. It is further submitted, in the meanwhile the
defendant No.1 disclosed the fact that there is a charges
with the 2nd defendant on the suit schedule property to the
tune of Rs.1,98,665/- and the defendant No.1 requested the
plaintiff to discharge the said amount out of the remaining
consideration amount, as per the directions of the 1st
defendant, the plaintiff also paid the said out standing

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amount on behalf of the 1st defendant through bank and
obtained the loan clearance certificate.

5. That it is submitted, after payment of the above
said amounts, the defendant No.1 has executed the
agreement of sale on 04.06.1999 in favour of the plaintiff
pertaining to suit schedule property, and received the
remaining part sale consideration amount of Rs. 16,345/-
through cash, from the plaintiff before the witnesses who
are attesting to the sale agreement on the same day,
thereby the defendant No.1 has received the entire sale
consideration amount from the plaintiff and delivered the
possession in favour of the plaintiff, and further the 1st
defendant has agreed to execute the Regular Regd. Sale
deed on the registration expenses of the plaintiff
Immediately After completion of the condition period ie. 10
years period, and also further agreed that she will going to
hand over the original Documents of the suit schedule
property like Mutation Extract, Encumbrance Certificate,
Katha, Tax paid receipt and etc. Further after completion of
stipulated period the plaintiff approached and requested the
defendant No. 1 t come and execute the Regular sale deed
by getting all the original documents from 2nd defendant,
instead of doing the same, the defendant No. 1 trying to
interfere with the plaintiff's peaceful possession and
enjoyment of the suit schedule property by using her official
capacity, against the act of the defendant No.1 filed a suit in
O.S.No. 483/2008 on the file of Prl. Civil Judge (Jr.D) at
Tumkur. for permanent Injunction and such other reliefs with

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liberty to file a suit for specific performance of contract, and
the said suit is still pending for adjudication.

6. THAT it is further submitted thereafter words the
plaintiff demanded the defendant No.1 and requested her to
execute the Regular Regd. Sale deed as per the sale
agreement in his favor, but the defendant No. 1 went on
dodging to execute the Regular registered sale deed, the
reasons best known to herself. Further the plaintiff
approached the 2nd defendant to return all the documents,
for the same the 2nd defendant replied to establish the right
over the suit schedule property, then they will going to hand
over the original documents, hence the 2nd defendant
herein made as a formal party to this suit.

7. THAT submitted when the defendant No.1 even
after laps of stipulated period also not come forward for
execution of regd. regular sale deed even though the
plaintiff is agreement holder, but even after so many
requests of the plaintiff also the defendant No.1 did not
chosen to come and execute the same. Hence the plaintiff
having no other option contact the plaintiff on 1 week of
January 2012 and sought for execution of Regd, Sale deed
in his favour, even inspite of his approaches also the
defendant No.1 remain silent, and she did not comply the
same.

8. THAT it is submitted, the Plaintiff has been ready
and willing to get the Regular Regd. Sale Deed executed in
his favour keeping Registration expenses ready, but the

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Defendant No.1 went on dodging the matter, the reasons
best known to herself.
9. THAT it is submitted the Defendant No. 1 after
demanding the plaintiff through personally and by way of
legal notice instead of executing Regular sale deed, on the
other hand the defendant No.1 since one week is making
hectic efforts to alienate the property for higher price by
suppressing the sale agreement to some other person, with
an intention to defraud the right of the plaintiff, which she
has no right to do so in the eye of law, and it leads
multiplicity of proceedings. Hence this suit for specific
peroformance the contract as per the sale agreement dated:
04-06-1999 and such other reliefs.

10. THAT the cause of action for the suit arose on
04-06-1999, and 2008 subsequently one week bach when
the plaintiff approached and requested the 1st defendant
personally and by issuing the legal notice to execute Regd.
Sale Deed, and subsequently since one week the 1st
defendant is trying to alienate the schedule property to
some other persons, at Aralimaradapalya Extension,
Tumkur. within the Jurisdiction of this Hon'ble court.

11. For the purposes of court fee and Jurisdiction the
suit is valued as per the valuation slip and court fee is paid
accordingly.

PRAYER FOR JUDGEMENT AND DECREE
WHEREFORE, it is respectfully prayed that this
Hon'ble court may kindly be pleased to pass judgment and
decree against the defendants

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a) For Specific performance of the Sale Agreement
dated: 04.06.1999 directing the Defendant to execute the
Regular Regd. Sale Deed with respect to suit schedule
property infavour of the Plaintiff on the registration
expenses of the plaintiff;
b) for costs and such other reliefs as the Hon'ble
court may deems fit to grant under the circumstances of the
case in the interest of Justice.
SCHEDULE
That all the part and parcel of land bearing
R.C.C.Road residential building measuring East-West-
23.2+10.0/2 Mtr and North-South: 22.40.+18.5/2 Mtrs
situated at MIG-II, Aralimaradapalya Extension, Tumkur,
bounded on the
EAST: MIG-2-19
WEST: Other’s Property
NORTH: Road
SOUTH: HIG-9.

11. Section 72 of the Karnataka Housing Board Act, 1962
reads as under:
“ 72. Notice of suit against Board .—No person shall
commence any suit against the Board [,Housing
Commissioner, Chief Engineer, Secretary] or against any
officer or servant of the Board or any person acting under the
orders of the Board, for anything done or purporting to be
done in pursuance of this Act, without giving to the Board
[,Housing Commissioner, Chief Engineer, Secretary] officer

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or servant or person concerned two months’ previous notice
in writing of the intended suit and of the cause thereof, nor
after six months from the date of the act complained of.”
12. A plain reading of the aforesaid provision will indicate
that there is an embargo for a person to commence any suit
against the Karnataka Housing Board or against any officer or
servant of the Board acting under the orders of the Board for
anything done or purporting to be done in pursuance of this KHB
Act without giving to the Board or such other authorities, 2 months
previous notice for institution of the suit. In this context, it is
relevant to state that a perusal of the plaint averments will indicate
that the suit is not presented or filed by the appellant-plaintiff before
the Trial Court in furtherance or in pursuance of any act, deed or
anything done or said to have been done by either the Board or
any officer of the Karnataka Housing Board. On the other hand, the
entire allegations and claim made by the appellant-plaintiff is as
against respondent No.1-defendant No.1 and respondent No.2-
Karnataka Housing Board is impleaded only as a formal / pro-forma
party for the purpose of ensuring that respondent No.1-defendant
No.1 procures/secures all original documents from respondent

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No.2 - KHB for the purpose of executing a registered Sale Deed in
favour of the appellant-plaintiff.
13. Under these circumstances, it is clear that in the
absence of any pleading, claim, allegation, relief etc., sought for or
put forth by the appellant-plaintiff against respondent No.2 -
Karnataka Housing Board, it cannot be said that the present suit in
which no relief was sought for by the appellant-plaintiff against the
respondent No.2 was barred under Section 72 of the KHB Act and
consequently, the impugned order passed on I.A.No.3 and the
impugned Judgment and Decree of the Trial Court and the First
Appellate Court are clearly erroneous and contrary to law
warranting interference by this Court in the present appeal.
14. It is needless to state that it is well settled position of
law that for the purpose of consideration of an application under
Order VII Rule 11 CPC, it is only the plaint averments and the
documents produced along with the plaint that are relevant or
germane for consideration of such an application. In the instant
case, a perusal of the plaint averments and documents produced
by the plaintiff along with the plaint will clearly indicate that the bar

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under Section 72 is clearly not attracted to the facts of the instant
case and consequently, the substantial question of law formulated
above deserves to be answered in favour of the appellant-plaintiff
by setting aside the impugned judgments and decrees of the Trial
Court and First Appellate Court and remitting the matter back to the
Trial Court for reconsideration afresh and in accordance with law.
15. In the result, I pass the following:
ORDER
i) The appeal is allowed.
ii) The impugned order dated 16.12.2013 passed on
I.A.No.III in O.S.No.115/2012 and the consequent
decree passed by the Trial Court and the impugned
judgment and decree dated 06.08.2018 passed in
R.A.No.123/2014 by the III Addl. Senior Civil Judge
and JMFC, Tumakuru, are hereby set aside.
iii) The Matter is remitted back to the Trial Court for
reconsideration afresh of the matter on merits
without reference to the question/issue as regards
maintainability of the suit qua Section 72 of the

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Karnataka Housing Board Act, which stands
concluded and answered in favour of the appellant-
plaintiff by the present order.
iv) The appellant and respondents are directed to
appear before the Trial Court on 16.11.2026 without
awaiting further notice.
v) The Registry of this Court is directed to refund/repay
the entire/full (100%) court fee paid on the
Memorandum of Regular Second Appeal back to the
Appellant immediately, without any delay.
vi) The Trial Court is directed to dispose of the suit as
expeditiously as possible and preferably, within a
period of nine months from the date of receipt of a
copy of this judgment.

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE


BMC
List No.: 1 Sl No.: 16