JUDGEMENT :

1. The appellants are the original plaintiffs. The appellants had filed Special Civil Suit No. 51 of 1989 for specific performance of contract against the defendant/respondents herein. The said special civil suit was decreed by the trial court thereby directing the defendant/respondents to execute sale deed of the suit land in favour of plaintiffs.

2. The defendant/respondents herein preferred Regular Civil Appeal against the said judgment and decree bearing Regular Civil Appeal No. 52 of 2009. The learned first appellate court allowed the said appeal and reversed the finding of learned Civil Court thereby dismissing the suit on two counts i.e. the suit is barred by limitation and also barred under II Rule 2, C.P.C.

3. The appellants/plaintiffs approached this Court. The second appeal was admitted on following substantial questions of law vide order dated 25.11.2009.

(1) Whether in the facts and circumstances of the present case, the decree for specific performance of the agreement to sell is to be refused only on account of delay and whether findings of the First Appellate court that time of essence of contract is patently erroneous in the context?

(2) Whether in the facts and circumstances of the present case, the First Appellate Court failed to properly construed the terms of the agreement to sell and therefore, reached improper conclusion that the time was stipulated for specific performance and thereafter the rights of the appellants were automatically abrogated?

(3) Whether in the facts and circumstances of the present case, the First Appellate Court committed patent error while causing interference in the use of discretion by the trial Court under Section 20 of the Specific Relief Act, and therefore the impugned judgment is liable to be interfered with?

4. At the time of final hearing and before starting arguments of respective parties, with consent, additional substantial question of law was framed which reads thus:-

(4) In absence of pleadings of bar of suit under Order II Rule 2 of C.P.C. whether the first appellate court is justified in deciding it against the plaintiffs without framing point for determination?

In the case of Vijay Arjun Bhagat & Ors vs. Nana Laxman Tapkire and Ors, reported in 2018 (6) All MR 920 (S.C.), the Hon’ble Apex Court has observed that the High Court is having jurisdiction to frame additional questions of law by taking recourse to the proviso appended to sub-section (5) of Section 100 of C.P.C. The above additional substantial question of law was framed at the initial stage of the matter being taken up for final hearing and by giving an opportunity to the learned counsel for the respondents to argue on it. This substantial question of law arises out of the finding of the first appellate court as discussed hereinafter.

5. Heard Mr. Kasliwal, learned counsel for the plaintiffs/appellants and Mr. Kulkarni, learned counsel for defendant/respondents

6. The parties are hereinafter called as plaintiffs and defendant as they arrayed before the Civil Court for the sake of convenience.

7. In nutshell, the facts leading to the dispute are as under:-

8. The plaintiffs filed suit for specific performance of agreement dated 23.4.1978 whereby the plaintiffs agreed to purchase suit property from the defendant for an amount of Rs.35,000/-. At the time of agreement of sale, an amount of Rs.10,000/- was paid to the defendant. The plaintiffs agreed to pay remaining amount of Rs.25,000/- on or before execution of sale deed. Similarly, the possession of suit property was handed over to the plaintiffs on the day of execution of agreement of sale. In the agreement, it was stated that the sale deed was required to be executed on or before 01.12.1978. Since the sale deed could not be executed on that day, the plaintiffs called upon the defendant to show the title deeds and to obtain surrender deeds from the persons whose names appear in the tenancy column of survey record. As there was no response from the defendant