Rukamawwa vs Smt. Kasturibai

Raghvendra S. Chauhan, J.—The appellant has challenged the validity of judgment dated 15.04.2014, passed by the II Addl. District Judge Bijapur, whereby the learned Judge has partly allowed the appeal filed by her, but has dismissed her appeal against the Karnataka Housing Board, the respondent No. 2.

Briefly the facts of the case are that, the appellant had filed a civil suit for partition and separate possession against the respondent Nos. 1 and 2. She was seeking � share in RS No. 70/2A, admeasuring 5 acres situated at Kasba Bijapur. According to her, the suit property was an ancestral property between her and her daughter, Smt. Kasturibai, respondent No. 1. According to her, her husband, Mahadevappa Naikodi, had acquired the said property under a partition between his brothers and sisters in the year 1975. She further claimed that during his lifetime, her husband had relinquished the suit property to his daughter, the respondent No. 1, as he had no male issues. After her husband''s death she was living with her daughter, the respondent No. 1. But taking advantage of the fact that the petitioner was an illiterate woman, the respondent No. 1 got record of rights mutated in her name. Moreover, by registered sale deed dated 23.06.2007, the respondent No. 1, sold the said suit property to respondent No. 2, the Karnataka Housing Board. Due to the registered sale deed, the property was entered in the name of the Karnataka Housing Board. According to the petitioner, since she has � share in the said property, the respondent No. 2, would not become the absolute owner of the said property.

While filing the suit, the petitioner also filed an interim application under Section 80 (2), CPC R/w 72 of the Karnataka Housing Board Act (''the Act'' for short) seeking the leave to institute the suit against the Karnataka Housing Board, without having to serve a notice upon the Housing Board. According to the petitioner, the said application was allowed by the trial court.

During the course of the trial, the trial court framed certain issues; issue No. 3 related to the maintainability of the suit. The said issue was taken as a preliminary issue. By order dated 18.02.2013, the learned trial court dismissed the suit on the basis of the preliminary issue No. 3, which was, whether the second defendant proves that the suit is not maintainable as per Section 72 of the Karnataka Housing Board Act?

Aggrieved by the order dated 18.02.2013, the petitioner filed a Regular Appeal before the learned Judge. By order dated 15.04.2014. while the learned Judge allowed the appeal against respondent No. 1, it upheld the order of the learned trial court qua the respondent No. 2. Hence, the present Miscellaneous Second Appeal before this Court.

The learned counsel for the appellant has vehemently pleaded that, since the petitioner had already filed an application under Section 80 (2) of CPC R/w Section 72 of the Act, and since the said application was allowed by the learned trial court, the conclusion drawn by the learned Judge that the suit is not maintainable against the Karnataka Housing Board, as no notice was issued by the petitioner to the Housing Board, is unsustainable. Secondly, the non-serving of a notice from the Housing Board is merely an irregularity and does not go to the root of the cause of action. Therefore, the impugned order deserves to be set aside.

On the other hand, the learned counsel for the respondent No. 2 Mr. S.S. Mamadapur, pleads that, Section 72 of the Act, is a mandatory provision. Since it is part of a special law, it over rides the general Law. Since it is mandatory condition, it could not have been waived and no leave could have been granted against a mandatory provision. Moreover, since it is a mandatory provision, the question of an irregularity would not even arise. Therefore, the learned counsel for the respondents has supported the impugned order.

Heard the learned counsel for the parties and perused the impugned order.

Section 72 of the Karnataka Housing Board Act, is 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 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.

A bare perusal of Section clearly reveals that, it contains a prohibition and debars a person from commencing a suit against the Board or against any Officer or Servant of the Board or any person acting under the Orders of the Board and unless a notice is within six months from the date of the Act complained of is first served. Thus, Section 72, in mandatory terms, prohibits the filing of a suit unless a notice is served upon the Board within the limitation period of six months from the date of complained act. Furthermore, the suit cannot be filed till the period of two months is over after the service of the notice.

In the case of Krishna Murthy v. Karnataka Housing Board, ILR 1989 Kar 3479, this Court has already opined that the Section 72 of the Act is a mandatory one. In case no notice has been served upon the Board, the suit is not maintainable. Thus, even if a leave had been granted by the learned trial court, the said leave would not denude the prohibition contained in Section 72 of the Act.

Admittedly, the petitioner has not served any notice upon the Board two months prior to initiation of the civil suit. Therefore, the petitioner has failed to comply with the mandatory requirements of Section 72 of the Act. Hence, the learned Judge was certainly justified in dismissing the petitioner''s appeal for the Karnataka Housing Board.

The second contention by the learned counsel that non-serving of a notice is a mere irregularity is unacceptable. For the non-implementation of a mandatory provision does not and cannot amount to a mere irregularity More so, when the provision even lays down a limitation period in which the notice has to be served. Thus, the said contention is clearly untenable and unacceptable.

For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of merit, is hereby dismissed.