JUDGMENT : (A. Badharudeen, J.) Defendant Nos.1 and 2 in O.S.No.62/2009 on the files of the II Additional Sub Court, Thiruvananthapuram, assail decree and judgment in the above case in this appeal filed under Section 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘the C.P.C.’ hereinafter). The sole plaintiff is the respondent herein. 2. Heard the learned counsel for the appellants/defendants and the learned counsel appearing for the respondent/plaintiff, in detail. Perused the trial court records. 3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ with reference to their status before the trial court, hereafter. 4. Bereft of unnecessary embellishments, the case of the plaintiff is that defendant Nos.1 and 2 along with Sri.Better Joy, nephew of the 1st defendant, who owned and possessed plaint A schedule property, having an extent of 22 cents, agreed to sell the property in favour of the plaintiff and accordingly, initially on 18.2.2007, an agreement was executed in this regard by fixing the total value of the property at Rs.4 Lakh, out of which, Rs.25,000/-(Rupees Twenty Five Thousand only) was paid as advance sale consideration. Again, the agreement was renewed on 18.4.2007 and the defendants received Rs.40,000/- (Rupees Forty Thousand only). Thereafter, on 26.4.2007, the defendants along with Sri.Better Joy jointly executed a sale deed in favour of the plaintiff with respect of 10 cents of property in their joint ownership and during execution of sale deed No.1314/2007, Rs.3,60,000/-(Rupees Three Lakh Sixty Thousand only) (in installments) out of Rs.4 Lakh towards the agreed sale consideration was accepted by the defendants on getting the same endorsed on the overleaf of the agreement dated 18.4.2007. Since there was failure to execute the remaining extent of property scheduled as ‘B’ in the plaint, the above suit was filed. 5. Defendants filed joint written statement inter alia admitting the execution of agreement. The contention raised by the defendants further is that, since plaint B schedule is the property belongs to the 2nd defendant, the 1st defendant is not a necessary party and therefore, the suit is bad for misjoinder. At the same time, it is contended that since Sri.Better Joy is not arrayed as a defendant, the suit is bad for non-joinder. The contention raised by the defendants further is that, since plaint B schedule is the property belongs to the 2nd defendant, the 1st defendant is not a necessary party and therefore, the suit is bad for misjoinder. At the same time, it is contended that since Sri.Better Joy is not arrayed as a defendant, the suit is bad for non-joinder. According to the defendants, the sale deed in respect of plaint B schedule property could not be executed because of the failure of the plaintiff to arrange the balance sale consideration, though the 2nd defendant has been ready to execute the sale deed. 6. Trial court raised necessary issues and recorded evidence. PW1 was examined and Exts.A1 to A12 were marked on the side of the plaintiff. No evidence let in by the defendants. Thereafter, the trial court granted decree as under: In the result, the suit is decreed on the following terms:- 1. The 2nd defendant shall execute a deed of sale with respect to the plaint B schedule property in favour of the plaintiff after receiving the balance consideration of Rs.40,000/- (Rupees forty thousand) from the plaintiff within a period of three months from the day instant. 2. On failure, the plaintiff is allowed to deposit the balance sale consideration before the court within one month if not deposited yet, and to get executed the sale deed and possession through court 3. Considering the facts and circumstances, parties are directed to bear their respective costs. 7. The learned counsel for the defendants argued that filing of suit against the 1st defendant for non-performance of contract by the 2nd defendant is bad in law and thereby, the suit must fail on the ground of misjoinder. It is argued further that, since the suit is not properly instituted and a party wrongfully impleaded in the suit, the same should have been dismissed by the trial court, finding misjoinder. By referring ground No.D of the appeal memorandum, the learned counsel for the defendants submitted that even this aspect is known to the plaintiff from the written statement filed by the defendants, no steps taken to delete the 1st defendant from the party array and therefore, the same is fatal to the case of the plaintiff. Accordingly, the learned counsel for the defendants pressed for dismissal of the suit reversing the trial court verdict. 8. Accordingly, the learned counsel for the defendants pressed for dismissal of the suit reversing the trial court verdict. 8. The learned counsel for the plaintiff refuted the contention raised by the learned counsel for the defendants and submitted that the 1st defendant also arrayed in the party array since as per the endorsement in Ext.A2 agreement on its reverse side, the balance consideration paid on three occasions was accepted by the 1st defendant. Therefore, the 1st defendant is a necessary party or atleast a proper party. Therefore, the suit is not bad for misjoinder. According to the learned counsel for the plaintiff, even otherwise, no suit is liable to be dismissed finding misjoinder and in this regard, the learned counsel placed reliance on Order I Rule 9 of the C.P.C. and the same reads as under: 9. Misjoinder and non-joinder.- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: [Provided that nothing in this rule shall apply to non-joinder of a necessary party.] 9. While addressing the rival contentions, the points arise for consideration are: 1) Whether the trial court went wrong in granting decree against the 2nd defendant even though no relief sought against the 1st defendant as contended by the learned counsel for the defendants? 2) What is the legal effect of Order I Rule 9 of the C.P.C.? 3) Whether a civil court is empowered to dismiss a suit filed against a necessary party merely for the reason of arraying an unnecessary party on finding misjoinder? 4) Reliefs and Costs. 10. First of all, I shall address the question as to whether a civil court is empowered to dismiss a suit filed against a necessary party by impleading an unnecessary party, on finding misjoinder. In this connection, as pointed out by the learned counsel for the plaintiff, Order I Rule 9 of the C.P.C. is relevant. It has been specifically provided therein that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. It has been specifically provided therein that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The proviso would say that this rule has no application in case when there is non-joinder of necessary party. Thus, the legal position is not in dispute that no suit shall be defeated by reason of misjoinder of a party/parties, even though a party or parties who got arrayed as defendant/s along with a necessary party in a suit to be found as an unnecessary party or parties and the court has to deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Therefore, a civil court is not empowered to dismiss a suit filed against a necessary party, merely for inclusion of some parties who are not either necessary or proper parties. In such cases also, once the plaintiff establishes a case against the necessary party, suit is liable to be decreed against the said necessary party and the suit cannot be dismissed in toto. But the courts have the power to grant cost to a party or parties who are wrongly joined as parties in a vexatious litigation, on finding so. 11. Even though it is argued by the learned counsel for the defendants that the 1st defendant is not a necessary party and this point has been highlighted in the written statement, no steps taken by the plaintiff to delete the 1st defendant from the party array. The learned counsel for the plaintiff would submit that even though the sale deed sought to be executed on the strength of Ext.A1 and Ext.A2 sale agreements at the instance of the 2nd defendant, the part consideration for the entire property was received by making endorsement at the instance of the 1st defendant and therefore, even though he is not a necessary party, he is a proper party. Therefore, a party atleast would qualify the status of a proper party could not be adjudged as a person wrongly joined in the litigation to find misjoinder. 12. On perusal of the plaint averments and Ext.A1 and Ext.A2 agreements, the contention raised by the learned counsel for the plaintiff is sustainable. Therefore, a party atleast would qualify the status of a proper party could not be adjudged as a person wrongly joined in the litigation to find misjoinder. 12. On perusal of the plaint averments and Ext.A1 and Ext.A2 agreements, the contention raised by the learned counsel for the plaintiff is sustainable. Therefore, joining the 1st defendant also as a proper party to the suit where he also received part of the consideration for the entire property is not a ground to find misjoinder. In the said circumstances, there is no misjoinder in this case. 13. Reading the plaint averments and prayers therein, the learned counsel for the defendants would submit that the relief of specific performance was sought against the defendants altogether even though the 2nd defendant alone is competent to execute the sale deed. On perusal of plaint averments and the reliefs, this submission appears to be convincing. In response to this submission, the learned counsel for the plaintiff submitted that in view of receipt of money by the 1st defendant for and on behalf of the 2nd defendant as endorsed in Ext.A2 agreement, the 1st defendant, who is the husband of the 2nd defendant also arrayed as a defendant. Even though the reliefs sought against the defendants as a whole, according to the learned counsel for the plaintiff, the court below rightly granted decree against the 2nd defendant alone. Therefore, merely on the ground of misjoinder, even otherwise, the decree granted by the trial court is not to be interfered. 14. In this case, Ext.A1 is the first agreement executed in between the plaintiff, defendants and Sri.Better Joy on 18.2.2007. Again, the agreement was renewed on 18.4.2007 which is marked as Ext.A2. Insofar as execution of Ext.A1 and Ext.A2 agreements are concerned, the same is admitted by the defendants. In such a case, the trial court exercised its discretionary power under Section 20 of the Specific Relief Act and finally granted decree directing the 2nd defendant to execute the sale deed with respect to plaint B schedule property in favour of the plaintiff after receiving the balance consideration of Rs.40,000/- (Rupees Forty Thousand only) from the plaintiff. On perusal of Ext.A1 and Ext.A2 agreements supported by the evidence of PW1, it is evident that there was bona fide execution of Ext.A1 and Ext.A2 initially between the plaintiffs, defendant and Sri.Better Joy. 15. On perusal of Ext.A1 and Ext.A2 agreements supported by the evidence of PW1, it is evident that there was bona fide execution of Ext.A1 and Ext.A2 initially between the plaintiffs, defendant and Sri.Better Joy. 15. In the instant case, it is proved, rather admitted by parties that Rs.3,60,000/-(Rupees Three Lakh Sixty Thousand only) out of the sale consideration was received as agreed. What remains is balance of Rs.40,000/-(Rupees Forty Thousand only). 16. It is the settled law that when the plaintiff has been ready and willing to execute his part of the contract, which is proved, the court has discretion to grant the specific relief of performance itself. It is equally well settled that the discretionary power shall not be exercised in an arbitrary manner and the same shall be exercised in accordance with sound and reasonable judicial principles, capable of correction by the higher courts. It is not in dispute that before the amendment of Section 20 of the Specific Relief Act w.e.f. 01.08.2018, grant of specific relief by the court is absolutely a discretionary relief and the court is not bound to grant such relief merely because it is lawful to do so. 17. In the instant case, as per Ext.A1 and Ext.A2 sale agreements, admittedly entered into between the parties, 10 cents of property was transferred in the name of the plaintiff and the suit has been filed to get specific performance of Ext.A1 and Ext.A2 insofar as the same relates to 12 cents of property scheduled as plaint B item. In the instant case, out of the total sale consideration, Rs.3,60,000/- (Rupees Three Lakh Sixty Thousand only) was received as advance and the remaining is only Rs.40,000/- (Rupees Forty Thousand only). In such a case, the trial court vigilantly exercised the discretion and directed performance of the agreement by the 2nd defendant on receipt of Rs.40,000/- (Rupees Forty Thousand only) as balance consideration. Such a decree does not require any interference and therefore, the same is liable to be dismissed. Holding so, this appeal fails and the same stands dismissed. Needless to say, the plaintiff is entitled to get cost of this appeal to be realised from the defendants. Accordingly, cost also allowed to the plaintiff in this appeal to be realised from the defendants. All interlocutory orders stand vacated and all interlocutory applications pending in this appeal stand dismissed. Holding so, this appeal fails and the same stands dismissed. Needless to say, the plaintiff is entitled to get cost of this appeal to be realised from the defendants. Accordingly, cost also allowed to the plaintiff in this appeal to be realised from the defendants. All interlocutory orders stand vacated and all interlocutory applications pending in this appeal stand dismissed. Registry is directed to inform this matter to the jurisdictional court, forthwith.