Paresh Upadhyay, J.

This Appeal is directed against the judgment and decree passed by the Trial Court (the Principal Senior Civil Judge, Gandhinagar) dated 13.06.2016 rejecting Special Civil Suit No.213 of 2007. The Trial Court has, by the impugned judgment recorded on application Exh.41 filed by the defendant No.2, rejected the plaint under the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908.

2. This being the First Appeal, the point for determination needs to be formulated by this Court. The point for determination, in the present Appeal is, whether the plaint of the present appellant needs to be rejected on the ground of, it not disclosing any cause of action against defendants No.1 and 2, as held by the Trial Court, on the application moved by the defendant No.2 invoking the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908.

3. Heard learned advocates.

4. The material on record is also considered by the Court.

5. Mr. D.K. Puj, learned advocate for the appellant - original plaintiff has submitted that, the Trial Court fell in error while coming to the conclusion that the plaintiff does not have any cause of action against the defendants No.1 and 2 and that the suit was in collusion with the defendant No.3. It is submitted that the suit was for specific performance of an agreement to sell, which was executed by defendant No.3 and it was the case of the plaintiff that defendant Nos.1 and 2 had also orally agreed for the same. It is submitted that, on the face of these averments, the Trial Court could not have come to the conclusion that the plaint needs to be rejected. It is submitted that, an application under the provisions of Order 7, Rule 11 of the Code of Civil Procedure moved by the defendant No.2 before the Trial Court, should not have been entertained by the Trial Court. Learned advocate for the appellant has also taken this Court through the provision of the Code in this regard, to contend that, the impugned order needs to be interfered with. It is submitted that this appeal be allowed.

6. On the other hand, Mr. Viral K. Shah, learned advocate for the contesting respondent - original defendant No.2 has submitted that, the Trial Court has not committed any error in passing the impugned judgment and no interference be made by this Court. It is submitted that, it was the case of the plaintiff that there was an agreement to sell of the suit land, in his favour, which was owned by the defendants No.1 and 2, the said agreement was executed by defendant No.3, on the basis of the power of attorney, claimed to have been in favour the defendant No.3, which was never given by the defendants No.1 and 2. It is submitted that thus the plaintiff could not and did not have any cause of action, qua the suit property, against the defendants No.1 and 2. It is submitted that the rejection of plaint by the Trial Court, in this factual background, may not be entertained and this Appeal be dismissed.

6.1 Without prejudice to the above submissions on merits, learned advocate for the contesting respondent has further submitted that, though the application under Order 7, Rule 11 of the Code of Civil Procedure was given way back on 23.09.2014, the copy thereof was also served to the other side at the relevant time, an endorsement was also put thereon to the effect that reply needs to be filed, for years together, the same was not done by the plaintiff. It is submitted that even no submission was made, contesting the said application and ultimately, the impugned order came to be passed by the Trial Court on 13.06.2016 allowing the said application (Exh.41) and the suit was dismissed by rejecting the plaint. It is submitted that, when there was no contest before the Trial Court, this appeal may not be entertained on that count also.

7. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.

7.1 The suit is for specific performance of