JUDGMENT Hon'ble Sanjay Misra,J. - Heard Sri A.C. Pandey, learned counsel for the defendants-appellants. 2. This second appeal under Section 100 C.P.C. has been filed against the judgment and decree dated 26.10.2010 in Civil Appeal No.28 of 2003 passed by the Additional District Judge, Court No.11, Bareilly, whereby the appeal filed by the defendant-appellant has been dismissed and the judgment and decree passed by the Trial Court for specific performance of agreement of sale has been affirmed. 3. The submission of Sri A.C. Pandey, learned counsel for the defendant-appellant is that the First Appellate Court having found that an additional issue was required to be framed and it framed such issue it ought to have remanded the case to the Trial Court for taking evidence and deciding the issue framed by the First Appellate Court. Having not done so the impugned judgment is illegal. 4. The second submission is based upon the findings recorded on Issue No.7 as to whether the plaintiff had any cause of action to bring the suit when under the agreement of sale it was provided that the plaintiff would get the agreement of sale enforced within four months of seeking permission from the appropriate authority. He submits that no permission was taken and therefore there was no cause of action for bringing the suit. 5. The third submission is that the property in question was a joint property of the defendant-appellant and his family members and therefore the agreement of sale was not enforcible since it contemplated sale of property in excess of the share of the defendant-appellant. 6. The fourth submission argued by learned counsel for the defendant-appellant is that the Courts below have failed to take into consideration the provisions of Section 14 and Section 20 of the Specific Relief Act to consider that non-performance of the obligation by the appellants may be adequately compensated in terms of money to the plaintiff-respondent whereas the execution of the sale deed would be an unforeseen hardship to the defendant-appellant. 7. Learned counsel for the defendant-appellant in support of his first submission has placed reliance on a decision of a learned single Judge of this Court in the case of 'Shambhu Prasad Vs. Smt. Shamim Jahan'. In support of his third submission he has placed reliance upon a judgment of the Hon'ble Supreme Court in the case of 'Mohd. Asgar Mohamed Mazhar and another Vs. Smt. Shamim Jahan'. In support of his third submission he has placed reliance upon a judgment of the Hon'ble Supreme Court in the case of 'Mohd. Asgar Mohamed Mazhar and another Vs. Arvind Raghunath Sawant and another' and states that the Karta of the joint family did not make the other members (minors) as party to the agreement and that there was no legal necessity for sale of the property, therefore, the Courts below were required to refuse the relief of specific performance to the plaintiff. 8. Having considered the submission of learned counsel for the defendant-appellant a perusal of Order 41 Rule 24 & 25 C.P.C. would be appropriate. In Rule 24 if the First Appellate Court finds that the evidence available on the record is sufficient to enable it to pronounce judgment on an issue other than those upon which the Trial Court had pronounced judgment it can resettle the issue and decide the matter itself without remanding it. Rule 25 therein contemplates a situation where the First Appellate Court finds it appropriate to frame an additional issue which was not framed by the Trial Court and which is necessary for being decided between the parties but there is insufficient evidence on the record then it can frame the additional issue and remand the matter back to the Trial Court for leading of additional evidence by the parties and a decision thereupon. 9. While interpreting the aforementioned two Rules, learned counsel for the defendant-appellant argued that when the First Appellate Court had framed an issue of readiness and willingness of the plaintiff to get the agreement of sale enforced it ought to have remanded the matter to the Trial Court for leading of evidence. 10. The evidence which was available before the First Appellate Court was in the form of registered agreement of sale dated 13.07.1990, notice dated 26.11.1990, the evidence of proof of service dated 03.12.1990 and the oral deposition of the parties. The suit was filed on 25.01.1991 when the defendant-appellant refused to execute the sale deed. This evidence was available before the First Appellate Court when it framed the issue regarding readiness and willingness of the plaintiff-respondent to get the sale deed executed. The suit was filed on 25.01.1991 when the defendant-appellant refused to execute the sale deed. This evidence was available before the First Appellate Court when it framed the issue regarding readiness and willingness of the plaintiff-respondent to get the sale deed executed. Such evidence was already available on record of the Trial Court and therefore there was no occasion for the First Appellate Court to remand the matter to the Trial Court to lead any further evidence. The evidence required for proving the readiness and willingness of the plaintiff was in the form of notice to the defendant-appellant, its service on the defendant-appellant and oral statement of the parties hence upon failure of the defendant-appellant to execute the sale deed no further evidence was required to be lead by the parties. Therefore the First Appellate Court was correct in framing that issue and not remanding the matter to the Trial Court. The submission of learned counsel for the defendant-appellant, therefore, cannot be accepted. 11. The decision in the case of Shambhu Prasad (Supra) would not apply in this case for the reason that in Shambhu Prasad's case the Court framed a new issue and felt that some evidence is required to be led to decide the issue so framed. It had brushed aside the defendants claim to lead evidence on the new issue framed by the First Appellate Court. Therefore the High Court was of the view that the First Appellate Court was correct in framing a new issue but was wrong in declining to adopt the procedure under Order 41 Rule 25 CPC and thereby depriving the party to lead evidence on the new issue framed. In the present case such is not the circumstance. Here the evidence was already on record. No plea was made to lead additional evidence on the new issue framed by the First Appellate Court. 12. Insofar as the second submission is concerned the same is on the basis that the agreement of sale provided for obtaining of appropriate permission from the authorities and executing the sale deed within four months thereof. The submission is that no permission was obtained and therefore no cause of action arose to the plaintiff to bring the suit. 12. Insofar as the second submission is concerned the same is on the basis that the agreement of sale provided for obtaining of appropriate permission from the authorities and executing the sale deed within four months thereof. The submission is that no permission was obtained and therefore no cause of action arose to the plaintiff to bring the suit. A perusal of the findings recorded by the Courts below indicates that time was never the essence of the contract and therefore cause of action is to be tested on the conduct of the parties. The plaintiff admittedly gave notice and the notice was served on the defendant-appellant. The plaintiff was ready and willing to execute his part of the contract. The defendant failed to perform his obligation and therefore the suit was brought. Under such circumstances it cannot be said that there was no cause of action available to the plaintiff on the date he brought the suit which was immediately after service of notice on the defendant-appellant and his failure to perform his obligation. The second submission advanced by learned counsel for the appellant also merits rejection. 13. Insofar as the third submission is concerned it relates to the fact that the property a portion of which was agreed to be sold is a joint family property. The other members of the joint family were neither made party to the agreement of sale nor in the suit. The Courts below considered such aspect of the matter and have remedied the defect and held that the defendant-appellant had share in the property in question and therefore he could only sell his share of the property in question and not any excess portion even if an agreement of sale for such excess portion had been entered. The finding on Issue No.10 given by the Courts below is in accordance with law. 14. Insofar as the decision in the case of Mohamed Asgar Mohamed Mazhar (Supra) is concerned it relates to the shares of minors which was contracted to be sold by the Karta. In the present case the defendant has sold his share of the property and none of the parties have been described as being minor. Moreover, the Courts below have granted a decree of specific performance only to the extent of the share of the defendant (namely Banwari Lal). 15. In the present case the defendant has sold his share of the property and none of the parties have been described as being minor. Moreover, the Courts below have granted a decree of specific performance only to the extent of the share of the defendant (namely Banwari Lal). 15. The last submission of learned counsel for the appellant is relating to the provisions of Section 14 and 20 of the Specific Relief Act. A perusal of the record does not indicate that any pleading was taken with respect to unforeseen hardship or that the defendants-appellants were placed at a disadvantageous position in case they are compelled to execute the sale deed. In the absence of any pleadings such question does not arise for decision in the second appeal. 16. No substantial question of law arises in this appeal. There are concurrent findings of fact recorded by both the Courts below. 17. For the aforesaid reasons, there is no merit in the second appeal. It is, accordingly, dismissed. No order is passed as to costs.