C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 882 of 2013 ========================================================== SANATKUMAR V BAROT THRO'POA PUSHPABEN VIJAYSINGH BAROT Versus DECD. HASMUKHBHAI HIRABHAI TRHOGUH HEIRS & ORS. ========================================================== Appearance: MR ARPIT A KAPADIA(3974) for the Appellant(s) No. 1 MR PARV MEHTA on behalf of MR SATYAM Y CHHAYA(3242) for the Defendant(s) No. 1.1,1.2,1.3 MR. KM ANTANI(6547) for the Defendant(s) No. 3,4 RULE SERVED BY DS for the Defendant(s) No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR. JUSTICE R. T. VACHHANI Date : 20/08/2026 ORAL ORDER (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI) 1. Being aggrieved and dissatisfied with the order dated 02.02.2013 passed by the Learned 4th Additional Senior Civil Judge, Valsad (for the sake of brevity and convenience, hereinafter referred to as “the Learned Civil Court”) below Exh.-90 in Special Civil Suit No. 116 of 2008, whereby the plaint came to be rejected under the provisions of Order VII Rule 11(d) of the Code of Civil Procedure, 1908, the appellant – original plaintiff has preferred the present First Appeal under Section 96 of the Code of Civil Procedure, 1908. 2. The brief facts leading to the filing of the present appeal are as under: C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 2.1. The appellant – original plaintiff instituted Special Civil Suit No. 116 of 2008 before the Principal Senior Civil Judge, Valsad against original Defendant Nos. 1 to 10 seeking specific performance of the agreement to sell dated 29.03.2007 executed by original Defendant No. 1 for himself and as power of attorney holder of original Defendant Nos. 2 to 10 in respect of the suit properties more particularly described in Schedules A to E bearing Survey Nos. 233/1, 233/2, 235/1, 236/2 and 235 (Block Nos. 281 to 285) situated at Mouje Ozar, Taluka and District Valsad. The total sale consideration fixed under the agreement was Rs. 1,40,40,001/-. 2.2. At the time of execution of the agreement, a sum of Rs. 10,51,001/- was paid by the plaintiff to original Defendant No. 1 and the same was duly accepted. The balance sale consideration was agreed to be paid within a period of six months, whereafter peaceful and vacant possession was to be handed over and the registered sale deed was to be executed. 2.3. The plaintiff was ready and willing to perform his part of the contract. When the plaintiff sought the title clearance certificate, original Defendant No. 1 failed to produce the necessary documents and instead demanded double the agreed consideration. From time to time the plaintiff paid further amounts, taking the total amount paid to Rs. 1,06,51,001/-. Incomplete particulars of the land were supplied. The plaintiff was constrained to issue a legal notice through his advocate. Original Defendant No. 1 replied to the said notice through his advocate but failed to execute the sale deed. Page 2 of 10 C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 2.4. In the reply to the legal notice, original Defendant No. 1 admitted the execution of the agreement to sell, the receipt of Rs. 10,51,001/- at the time of the agreement, and further receipt of Rs. 30,51,001/-. He also admitted having escalated the valuation of the suit property to Rs. 2,01,00,001/- and demanded the balance consideration of Rs. 1,70,49,000/-. Hence, the suit came to be filed. 2.5. During the pendency of the suit, the plaintiff came to know that the original defendants had executed a registered sale deed in favour of third parties. Consequently, the subsequent purchasers were joined as original Defendant Nos. 11 and 12. Original Defendant Nos. 3 to 10 could not be served at the addresses mentioned in the cause title, which had been derived from the agreement to sell dated 29.03.2007. The plaintiff, therefore, filed a purshis at Exh.-68 seeking deletion of original Defendant Nos. 3 to 10, which came to be allowed. Original Defendant Nos. 3 to 10 thus stood deleted from the array of parties. 2.6. The plaintiff thereafter filed an application at Exh.-81 under Order XI Rules 21, 22 and 24 of the Code praying for closure of the defence of the defendants on the ground of failure to give inspection of documents. Original Defendant Nos. 11 and 12 filed an application at Exh.-90 under Order VII Rule 11(d) read with Section 151 of the Code seeking rejection of the plaint. By two separate orders both dated 02.02.2013, the Learned Civil Court rejected the application at Exh.-81 filed by the plaintiff and allowed the application at Exh.-90 filed by original Defendant Nos. 11 and 12, thereby rejecting the plaint. The said order is under challenge in C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 the present appeal. 3. Submissions on behalf of learned Advocate for the appellant: 3.1. It is submitted that the impugned order passed by the Learned Civil Court rejecting the plaint under Order VII Rule 11(d) of the Code is illegal, perverse and contrary to the settled principles of law. The Learned Civil Court has committed a grave error in holding that deletion of original Defendant Nos. 3 to 10 has resulted in non-survival of the cause of action and that the suit has become barred by law. 3.2. It is further submitted that misjoinder or non-joinder of parties does not render the suit barred by any law within the meaning of Order VII Rule 11(d) of the Code. The defect of non-joinder, if any, is curable and the Court has ample power under Order I Rule 10 of the Code to proceed with the suit against the remaining parties. The cause of action based on the agreement to sell dated 29.03.2007 continues to survive against the remaining parties, particularly original Defendant Nos. 1 and 2 and original Defendant Nos. 11 and 12. 3.3. It is also submitted that the Learned Civil Court has proceeded on an erroneous assumption that in a suit for specific performance all the vendors named in the agreement are necessary parties in every circumstance and that their deletion automatically extinguishes the cause of action. Such a view is contrary to the provisions of the Code and the settled legal position. C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 3.4. On these premises, it is prayed that the impugned order be quashed and set aside, the appeal be allowed and the suit be restored to the file of the Learned Civil Court for being proceeded further in accordance with law from the stage at which it was left. 3.5. In support of his contentions, learned Advocate for the appellant has placed reliance on the decision of the Supreme Court, in the case of Prem Lala Nahata and another v. Chandi Prasad Sikara, (2007) 2 SCC 551. 4. Submissions on behalf of the Learned Advocate for the Defendant(s) No. 1.1,1.2,1.3: 4.1. It is submitted that the Learned Civil Court has rightly allowed the application under Order VII Rule 11(d) of the Code. Once the plaintiff himself chose to delete original Defendant Nos. 3 to 10, who were co- owners and necessary parties to the agreement to sell, the cause of action for specific performance did not survive. 4.2. It is further submitted that in a suit for specific performance of a contract, all the parties to the contract are necessary parties. In the absence of original Defendant Nos. 3 to 10, no effective decree for specific performance or even for compensation can be passed. The plaint, therefore, discloses no cause of action and is liable to be rejected. 4.3. It is therefore prayed that the appeal be dismissed and the impugned order be confirmed. C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 5. Submissions on behalf of the Learned Advocate for the Defendant(s) No. 3,4: 5.1. It is submitted that the subsequent purchasers support the findings recorded by the Learned Civil Court. The application under Order VII Rule 11(d) was rightly allowed. The deletion of original Defendant Nos. 3 to 10, who were joint owners of the suit properties and parties to the agreement to sell, has rendered the suit without any surviving cause of action. 5.2. It is further submitted that the subsequent purchasers are bona fide purchasers and the plaint, as it stands after deletion of the necessary parties, is barred by law. No interference is called for with the impugned order. 5.3. It is therefore prayed that the appeal be dismissed. 6. We have heard the learned Advocates for the respective parties and carefully examined the evidence adduced before the learned Civil Court. 7. The Learned Civil Court has rejected the plaint under Order VII Rule 11(d) of the Code solely on the ground that original Defendant Nos. 3 to 10, who were co-owners of the suit properties and parties to the agreement to sell dated 29.03.2007, stood deleted pursuant to the purshis at Exh.-68 filed by the plaintiff himself, and that consequently the cause C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 of action for specific performance did not survive. 8. It is pertinent to note that the expression “barred by any law” appearing in Order VII Rule 11(d) of the Code contemplates a case where the plaint itself discloses that the suit is barred by any law. A defect of misjoinder of parties or non-joinder of parties does not render the suit barred by any law. Therefore, the plaint cannot be rejected under Order VII Rule 11(d) of the Code on the ground of misjoinder or non-joinder of parties. 9. Notwithstanding the defect of misjoinder of parties or misjoinder of causes of action, it is open to the Court to proceed with the suit. The Court has the liberty to deal with such a defect under the provisions of Order I Rule 10 and other relevant provisions of the Code. Even if the suit results in a decision, the same cannot be set aside merely on the ground of such misjoinder. 10. It seems that the Learned Civil Court, while considering the issue, rejected the plaint under Order VII Rule 11 solely on the basis that the suit suffered from misjoinder of parties and thereby took the view that the Court could exercise powers under Order VII Rule 11. However, it is required to be noted that on the basis of such a defect, the plaint could not be rejected by invoking the provisions of Order VII Rule 11 of the Code, since it could not be held that a suit which suffers from the defect of misjoinder of parties or misjoinder of causes of action (or both) is barred by any law. Thus, the applications filed by the respondents herein do not inspire any confidence so as to constrain the Court to exercise the powers C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 under Order VII Rule 11 of the Code. 11. Order VII Rule 11(d) of the Code speaks of the suit being “barred by any law”. In a case where a plaint suffers from the defect of misjoinder of parties or non-joinder of parties, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection, and it is open to the Court to proceed with the suit notwithstanding the defect of misjoinder or non-joinder of parties, and if the suit results in a decision, the same could not be set aside in appeal merely on that ground. 12. A suit that may be bad for misjoinder or non-joinder of parties is not one that could be got struck out or rejected by a defendant as a matter of right, and the discretion vests with the Court either to proceed with the suit or to direct the plaintiff to take steps to rectify the defect. The Court has wide discretionary power to control the conduct of proceedings. The Court is still competent to try and decide the suit against the remaining parties, namely original Defendant Nos. 1 and 2 and original Defendant Nos. 11 and 12, even after the deletion of original Defendant Nos. 3 to 10 pursuant to the purshis at Exh.-68. 13. At this juncture, it is apt to refer to paragraph No.6 of the decision rendered by the Supreme Court in the case of Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551, which reads as under: “6. The trial Judge on the original side, considered the question whether the plaint filed by the appellants was liable to be rejected under Order 7 Rule 11(d) of the Code on the basis that the suit appeared from the statements in the plaint to be barred by any law. The learned Judge took the view that there was no law barring a suit in which there was C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 misjoinder of parties or a misjoinder of causes of action, though, of course, for the purposes of convenience, a court would avoid the misjoinder of causes of action or misjoinder of parties. But on the basis of such a defect, the plaint could not be rejected by invoking Order 7 Rule 11(d) of the Code since it could not be held that a suit which suffers from the defect either of misjoinder of parties or misjoinder of causes of action or both, is barred by any law. Thus, the application filed by the defendant herein, the defendant in CS No. 29 of 2003, was dismissed.” 14. Thus, it transpires that the respondents herein, original Defendant Nos. 11 and 12, made an application at Exh.-90 praying that the plaint in Special Civil Suit No. 116 of 2008 be rejected under Order VII Rule 11 of the Code on the ground that original Defendant Nos. 3 to 10, who were co-owners and parties to the agreement to sell dated 29.03.2007, stood deleted pursuant to the purshis at Exh.-68 and that consequently there was non-joinder of necessary parties. It was thus held that the plaintiff could not have proceeded with the suit for specific performance in the absence of original Defendant Nos. 3 to 10 and that the cause of action did not survive, as there was not only non-joinder of parties but that the suit had become one without any cause of action. 15. It appears that the claim of the plaintiff emanated from the agreement to sell dated 29.03.2007 executed by original Defendant No. 1 for himself and as power of attorney holder of the other original defendants and that the cause of action continued to survive against the remaining parties, namely original Defendant Nos. 1 and 2 and original Defendant Nos. 11 and 12. Hence, the plaint is not liable to be rejected under Order VII Rule 11(d) of the Code. 16. From the foregoing discussion it is evident that the Learned Civil C/FA/882/2013(GJHC240390452013) ORDER DATED: 20/08/2026 Court committed a clear error in rejecting the plaint under Order VII Rule 11(d) of the Code merely on the ground of non-joinder of original Defendant Nos. 3 to 10. Such a defect does not render the suit barred by any law, and the cause of action based on the agreement to sell dated 29.03.2007 continues to survive against the remaining parties. 17. In view of the aforesaid discussion, the appeal is allowed. 18. The impugned order dated 02.02.2013 passed by the Learned Civil Court below Exh.-90 in Special Civil Suit No. 116 of 2008 rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure is hereby quashed and set aside. 19. Needless to say that the matter is to be proceeded further by the Court concerned from the stage it was left on the basis of the impugned order. 20. The appeal stands disposed of accordingly. 21. Record and proceedings, if any, be remitted to the concerned Court forthwith. (ILESH J. VORA,J) (R. T. VACHHANI, J) MVP Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: MITESH VIJAYBHAI PANCHAL(HCD0065), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 24/08/2026 13:15:24