The main legal point established in the judgment is the burden of proof in establishing the execution of an agreement to sell and the recovery of earnest money. The court emphasized the importance of leading positive evidence to prove execution and the failure to rebut such evidence.

JUDGMENT

Lisa Gill, J. - CM-4867-C of 2019 and RA-RS-38 of 2019.

Prayer in the application is for condonation of 20 days delay in filing of the review application and review of order dated 13.02.2019 passed by this Court in RSA No. 454 of 2019.

2. Appeal in question was dismissed as withdrawn vide order dated 13.02.2019 on a specific statement of learned counsel representing the applicant-appellant. Order dated 13.02.2019 reads as under:-

"It is submitted that the appellant seeks to withdraw this appeal.

Appeal is accordingly dismissed as withdrawn."

3. Learned counsel for the applicant-appellant argues that the applicant-appellant was not present in Court and neither were any such instructions given to his counsel on 13.02.2019. It is further argued that the applicant-appellant has been agitating his case right from the very beginning and is in-fact a victim of a fraud committed by the plaintiffs. The applicant-appellant, it is submitted should not be put to hardship due to the inadvertence or callousness of the counsel engaged. It is urged that while not granting the relief of specific performance, learned Courts below had directed recovery of the earnest money from the present applicant-appellant. No compromise whatsoever has taken place between the parties. Therefore, there was no question or occasion for the present applicant-appellant to withdraw this appeal. Applicant-appellants seeks to pursue the matter on merits.

4. The applicant-appellant, it is submitted came to know about the withdrawal of his appeal during execution proceedings. The present application has been filed immediately thereafter. As the applicant-appellant was earlier not aware of order dated 13.02.2019, delay of 20 days in filing the review application has occurred, which may be condoned in the interest of justice.

5. Heard learned counsel for the applicant-appellant.

6. It is informed by learned counsel for the applicant-appellant on a pointed query of the Court that no complaint etc., has been filed by the applicant-appellant against the previous counsel. While not delving into the allegations as raised by the applicant-appellant, I consider it just and expedient in the facts and circumstances of the case to allow this application and hear the matter on merits.

7. In view of the above, delay of 20 days in filing of the review application is condoned. Order dated 13.02.2019 is recalled. Appeal is restored at its original number.

8. At request of learned counsel for the appellant, main appeal is taken up for hearing today itself.

9. Applications are disposed of.

R.S.A No. 454 of 2019(O&M).

10. Appellant-defendant is aggrieved of judgment and decree dated 06.02.2018, passed by the learned Addl. Civil Judge (Sr. Division), Nakodar, as well as judgment and decree dated 31.10.2018, passed by the learned Additional District Judge, Jalandhar, whereby relief of specific performance of the agreement to sell dated 20.06.2003 was declined, but the suit filed by the plaintiffs-respondents was decreed with regard to alternate relief of recovery of Rs. 3,00,000/- along with interest @6% per annum from the date of filing the suit till its realisation.

11. Brief facts necessary for the adjudication of the case are that the plaintiffs-respondents filed a suit for possession by way of specific performance of agreement to sell dated 20.06.2003 in respect of the land as described in the plaint and for alternate relief of recovery of Rs. 6,00,000/-. It is pleaded that the appellant-defendant is the owner of land measuring 21 Kanal 2 Marlas as described in the plaint. Defendant on 20.06.2003, entered into an agreement to sell the above said land in dispute at the rate of Rs. 3,00,000/- per acre in favour of the plaintiffs-respondents and defendant received a sum of Rs. 3,00,000/- as earnest money from them in cash. Defendant agreed to execute and register the sale deed in their favour on or before 04.01.2006, after receipt of the balance sale consideration from them. It is