JUDGMENT : Tarlok Singh Chauhan, J. The appellants are the defendants, who are aggrieved by the judgment and decree dated 2.9.2002 passed by learned District Judge, Hamirpur, H.P. in Civil Appeal No. 139 of 1995 whereby he reversed the judgment and decree dated 15.9.1995 passed by learned Senior Sub Judge, Hamirpur, H.P. in Civil Suit No. 360-I of 1991. 2. The facts, in brief, are that the plaintiffs filed a suit for specific performance of the agreement dated 11.4.1986 on the ground that the land comprised in Khata No.6 min, Khatauni No. 15 min, Khasra No. 174 measuring 121.67 sq. mtrs. situated in Tika Up Mahal, Choula Khurd, Tappa Bajuri, Tehsil and District Hamirpur, H.P. (hereinafter referred to as the suit land) has been shown in the ownership and possession of the defendants in the revenue record. It was averred in the plaint that the defendants agreed to sell 51.67 sq. mtrs. land out of the suit land shown as Khasra No. 174/1 in favour of deceased Sh. Jagar Nath, predecessor in interest of the plaintiffs vide agreement dated 11.4.1986. However, the said Jagar Nath died in the year 1990. It was averred that as per the agreement it was agreed upon that the defendants would get the exchange entered in the revenue record and in case it is not accepted or mutation is not sanctioned then the deceased Jagar Nath would be entitled to get the sale deed executed. Further case of the plaintiffs is that at the time of execution of the agreement, a sum of Rs.8456/- was paid by their predecessor-in-interest to the defendants in cash. The mutation of exchange was rejected somewhere in 1988-89. Thereafter, they were always ready and willing to perform their part of agreement as they kept the money required for registration expenses and stamps etc., but it is the defendants, particularly defendant No.1, who was not ready and willing to perform their part of the contract. The plaintiffs had to serve the defendants with the notice in the year 1987 to get the mutation attested but they failed to do so. The defendant No.3 was also requested time and again to execute the sale deed but he paid no heed to the requests of the plaintiffs. The plaintiffs had to serve the defendants with the notice in the year 1987 to get the mutation attested but they failed to do so. The defendant No.3 was also requested time and again to execute the sale deed but he paid no heed to the requests of the plaintiffs. It was averred that the plaintiffs got the knowledge of the said agreement after the death of Jagar Nath in the month of October, 1991 when the defendant No.3 refused to execute the sale deed, hence the suit. 3. The defendants contested the suit by filing separate written statements. The defendants No.1 and 2 averred that the agreement to sell was executed and the other averments were denied. The defendant No.3 contested the suit of the plaintiffs and submitted that the suit is time barred and as such not maintainable. It is averred that the defendant No.3 is in possession over the suit land since the time when the defendants No. 1 and 2 were not owners thereof. It is admitted that the agreement was executed by defendant No.3 with the deceased Jagar Nath in the year 1986 but the aforesaid deceased never tried to enforce the agreement during his life time and hence the agreement has no force in the eye of law. The exchange as alleged is admitted. It is alleged that the plaintiffs are trying to take forcible possession of the suit land by taking advantage of the aforesaid agreement. It is admitted that a sum of Rs. 8456/- was handed over to the defendants by the deceased but lateron the deceased refused to exchange the land as per the agreement. It is also submitted that the defendant was never served with any notice by the plaintiffs in the year 1987. 4. The plaintiffs filed the replication to the written statements filed by the defendants and denied all the allegations made in the written statements and reaffirmed the averments made in the plaint. 5. On 25.9.1992 the learned trial Court framed the following issues : 1. Whether the plaintiffs are estopped by their act and conduct from filing this suit? OPD 2. Whether no cause of action accrued to the plaintiffs? OPD 3. Whether the suit in present form is not maintainable? OPD 4. Whether the suit is within limitation? OPP 5. Whether the plaintiffs are entitled to the specific enforcement of the contract? OPP 6. Relief. OPD 2. Whether no cause of action accrued to the plaintiffs? OPD 3. Whether the suit in present form is not maintainable? OPD 4. Whether the suit is within limitation? OPP 5. Whether the plaintiffs are entitled to the specific enforcement of the contract? OPP 6. Relief. 6. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit of the plaintiffs. Aggrieved by the judgment and decree dated 15.9.1995, the plaintiffs filed an appeal before the learned lower Appellate Court. The learned lower Appellate Court vide judgment and decree dated 2.9.2002 set-aside the judgment and decree passed by the learned trial Court. 7. Aggrieved by the judgment and decree passed by the learned lower appellate Court, the appellants have come up before this Court in second appeal. 8. This Court on 20.3.2003 admitted the appeal on the following substantial questions of law : 1. Whether alleged agreement in sale (Ex.PW-3/A) can be executed in violation of mandatory provisions of law contained under Section 16 (c) of the H.P. Town & Country Planning Act, 1977, if not, whether the judgment and decree passed by the learned Appellate Court below is unsustainable in the eyes of law being contrary to law? 2. Whether the suit is time barred whereby the specific performance of the agreement dated 11.4.86 (Ex. PW-3/A) has been instituted on 28.11.1991? 3. Whether the suit is maintainable when there has been mis-nonjoinder of necessary parties, when PW-1 himself has admitted that the part of the suit land is in the possession of one Smt. Koshalaya Devi? 9. I have heard learned counsel for the parties and have also gone through the records carefully and meticulously. 10. Section 16 (c) of the Himachal Pradesh Town and Country Planning Act, 1977 (for short “Act”) reads as follows: “16. Freezing of land use – On the publication of the existing land use map under Section 15 (C) No Registrar or the Sub-Registrar, appointed under the Indian Registration Act, 1908, shall in any planning area constituted under Section 13, register any deed or document of transfer of any sub-division of land by way of sale, gift, exchange, lease or mortgage with possession unless the sub division of land is duly approved by the Director subject to such rules as may be framed in this behalf by the State Government. Provided that the Registrar or the Sub Registrar may register any transfer.- (i) Where the land is owned by a person and the transfer is made without involving any further divisions, (ii) Where the partition/sub-division of land is made in a Joint Hindu Family, (iii) Where the lease is made in relation to a part of whole of a building; (iv) Where the mortgage is made for procuring the loans for construction or improvements ever the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognized by the State Government.” 11. Notably the point regarding jurisdiction was only raised for the first time by the defendant when he stepped into the witness box and there was no plea whatsoever raised by him to this effect in the written statement nor any issue in this behalf had been framed. Anyhow, irrespective of there being any pleadings in this behalf in the written statement, the learned lower Appellate Court dealt with this question and concluded that there was no blanket bar even in the planning area qua sale, gift, exchange, lease or mortgage with possession of land. It is further held that as in case the sub division of any such land is duly approved by the Director, Town and Country Planning, the same can be alienated by way of sale, gift, exchange or mortgage with possession. The learned lower Appellate Court further came to the conclusion that since the land had been denoted by separate khasra number as per Tatima Ex.P-2, the same was covered under proviso (i) to Section 16 (c) as no further division thereof was required as all the co-owners were ready and willing to execute the sale deed in favour of the plaintiffs and it was only the defendant No.3 who had refused to do so. 12. Learned counsel for the appellants could not convince this Court as to how and in what manner the findings recorded by the learned lower Appellate Court regarding interpretation of Section 16 (c) of the Act, is in any manner erroneous or faulty. Therefore, this substantial question of law is decided against the appellants. Substantial question of law No.2: 13. Article 54 of the Limitation Act prescribes as under : Description of suit Period of limitation Time from which period begins to run 54. Therefore, this substantial question of law is decided against the appellants. Substantial question of law No.2: 13. Article 54 of the Limitation Act prescribes as under : Description of suit Period of limitation Time from which period begins to run 54. For Specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Whether in a contract the time is the essence of the contract has been the subject matter of interpretation in number of cases, but the proposition can be said to have been settled by the decision of the Constitution Bench of the Hon”ble Supreme Court in case titled Chand Rani (Smt.) (dead) by LRs vs. Kamal Rani (Smt.) (dead) by LRs (1993) 1 SCC 519 wherein the Hon”ble Court outlined the principle thus: “19. It is a well-accepted principle that in case of sale of immoveable property, time is never regarded as the essence of the contract. As, in fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language. 14. In Hind Construction Contractors vs State of Maharashtra (1979) 2 SCC 70 the Hon’ble Supreme Court while discussing the question as to whether the time would be the essence of the contract, held as follows: “7….that question whether or not time was of the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract….(See Halsbury’s Laws of England, 4th Edn., Vol.4, para 1179.)” 8…. even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read alongwith other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental;…(See Lamprell v. Billericay Union (1849) 3 Exch 283, Exch at p. 308; Webb v. Hughes (1870) LR 10 Eq 281 ; Charles Rickards Ltd. v. Oppenheim (1950) 1 KB 616.)” 15. The respondents had specifically stated that they were ready and willing to perform their part of the contract and had kept the money for registration expenses and stamp expenses and for other expenses in connection with execution of sale deed ready, but the defendants are not ready to do so. The defendant No.3, who was the sole contesting defendants, had admitted the agreement but had claimed that deceased Jagar Nath during his life time never tried to enforce that agreement, therefore, this agreement had no force under law. He also admitted the receipt of Rs.8456/- and further claimed that deceased Jagar Nath, who refused to exchange the land as per the agreement. He also denied the receipt of notice in the year 1987. However, in the entire length and breath of the written statement never was the plea of time being the essence of the contract ever raised. Though, an omnibus preliminary objection was taken to the effect that the “suit is time barred' and accordingly even an issue to this effect was framed. 16. It was incumbent upon the appellants to have pleaded and proved that time the essence of the contract and in taking this view, I am supported by the following observations of the Hon’ble Supreme Court in Swarnam Ramachandran (Smt.) and another vs. Aravacode Chakungal Jayapalan (2004) 8 SCC 689 wherein it was observed as under: “12. That time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence….” 17. The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence….” 17. A perusal of the issues framed at the time of trial of the suit would show that there is no issue framed with respect to the time being the essence of the contract. Though, the learned counsel for the appellants would strenuously argued that the same was covered under issue No.4 – Whether the suit is within limitation. But I am afraid that this plea of the appellants cannot be accepted in view of the judgment passed in Swarnam Ramachandran case (supra). 18. That apart, the Hon’ble Supreme Court in Gomathinayagam Pillai and others vs. Palaniswami Nadar AIR 1967 SC 868 has categorically held that in absence of specific pleadings or issues raised before the trial Court, question whether the time is of the essence of the contract or not, cannot be raised before the High Court. 19. The question as to whether the plea that the suit was time barred would lead to an inference as containing the plea of time being the essence of the contract was specifically dealt with by the Hon’ble Supreme Court in Bibi Jaibunisha vs. Jagdish Pandit and others (1997) 4 SCC 481 and it was held that the plea having not been specifically raised cannot be construed to be inclusive or contained in the objection that the party had not performed its terms of the contract within time as there has to be specific pleadings and issues framed to this effect. This would be clear from the following observations : “4. The question, therefore, is : whether the view taken by the trial Court and the High Court that the time is the essence of the contract is correct in law? No doubt, the High Court has framed the point in paragraph 8 of the judgment and recorded the finding that the time was the essence of the contract. It is an admitted position that the plea was not specifically raised, though it was stated in the written statement that the appellant had not performed his terms of the contract within time. Admittedly, no issue was raised in this behalf. It is an admitted position that the plea was not specifically raised, though it was stated in the written statement that the appellant had not performed his terms of the contract within time. Admittedly, no issue was raised in this behalf. The question, therefore, is: whether the High Court would be justified in coming to the conclusion that the time was the essence of the contract? It is now well settled legal position that in the matter of enforcement of the agreement or agreement of reconveyance, time is not always the essence of the contract unless the agreement specifically stipulates and there are special facts and circumstances in support thereof. It must be specifically pleaded and issue raised so that the other party has a right to lead evidence. There is no express plea in the written statement nor any issue raised in that behalf. Consequently, there was no opportunity to the appellant to adduce rebuttal evidence that time was not the essence of the contract. 5. This Court in Smt. Indira Kaur & Ors. vs. Sheo Lal Kapoor [ (1988) 2 SCC 488 ] in paragraph 6 held as under: (SCC p.496). "On the question whether the time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondent in the trial court. Apart from the absence of pleadings we do not find any basis for the plea of the respondents in the trial court. Apart from the absence of pleadings we don not find any basis for the plea of the respondents that the time was of the essence of the contract." 6. This Court held that the plea cannot be raised, for the first time, in the High Court when it is not a matter of pleading or issue in that behalf. We find that the same ratio applies to the facts in this case. This Court held that the plea cannot be raised, for the first time, in the High Court when it is not a matter of pleading or issue in that behalf. We find that the same ratio applies to the facts in this case. Accordingly, the finding that the time was the essence of the contract and non-suiting the appellant on that finding is clearly in error.” Therefore, in absence of pleadings or issue in this behalf, this Court cannot go into the question and accordingly the substantial question of law No.2 is answered against the appellants/defendants. Substantial question of law No.3: 20. It is settled law that plea of misjoinder of necessary parties has to be taken at the earliest possible opportunity and in case where the issues are settled at or before such settlement, otherwise such objection is deemed to have been waived. Merely raising a plea of non-joinder of parties without making any effort to prove the said plea is not sufficient. Order 1 Rule 9 of the Code provides that no suit shall be defeated by reasons of misjoinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as it relates to the rights and interests of the parties actually before it. Order 1 Rule 13 CPC reads as under: “13. Objections as to non-joinder or misjoinder.- All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.” 21. Now, reverting to the facts of the case, it would be seen that the appellants have raised the objection regarding mis-joinder and non-joinder of parties only for the sake of objection because at no stage did they seriously pursue this objection. This would be borne out from the fact that even an issue to this effect had not been framed. Therefore, this objection is deemed to have been waived. The Court at this stage would loath to interfere unless there is a total violation of justice. This being the position, this substantial question of law is also answered against the appellants. 22. Therefore, this objection is deemed to have been waived. The Court at this stage would loath to interfere unless there is a total violation of justice. This being the position, this substantial question of law is also answered against the appellants. 22. Inconsequential, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any. The parties are left to bear their own costs.