SANATKUMAR V BAROT THRO'POA PUSHPABEN VIJAYSINGH BAROTversusDECD. HASMUKHBHAI HIRABHAI TRHOGUH HEIRS

      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

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 SANATKUMAR V BAROT THRO'POA PUSHPABEN VIJAYSINGH BAROT
                          Versus
     DECD. HASMUKHBHAI HIRABHAI TRHOGUH HEIRS & ORS.
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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
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     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:


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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.


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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


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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.




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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.


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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


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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


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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


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           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


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        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




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