JUDGMENT :

NIDHI GUPTA, J.

CM-11678-C-2023

1. Prayer in this application filed under Section 151 CPC is for condonation of delay of 65 days in refiling the accompanying appeal.

2. Heard.

3. For the reasons mentioned in the application which is duly supported by an affidavit of the applicant/appellant No.2, the same is allowed and delay of 65 days in refiling the appeal is condoned.

RSA-3265-2023 (O&M)

1. Defendants are in Second Appeal against the concurrent judgments and decrees of the ld. District Courts; whereby suit filed by the plaintiffs/respondents herein, seeking specific performance of Agreement to Sell dated 16.11.2011, has been decreed for specific performance of Agreement to Sell, by both the District Courts.

2. Brief facts of the case as pleaded in the plaint are that, that as per the Jamabandi for the year 2008-2009, defendants are owners of the suit property measuring 2K as described in the plaint. It was stated that defendants entered into Agreement to Sell dated 16.11.2011 for the land measuring 2K in favour of the plaintiff for a total sale consideration of Rs.10 lacs. Defendants had received Rs.7 lacs by way of earnest money. Date of execution of Sale Deed was decided on 16.12.2011. The suit land and other land of the defendants had been mortgaged by father of defendants Ajit Singh during his lifetime with Allahabad Bank, Ghoman. The said loan had not been cleared either by Ajit Singh or by defendants. It was agreed that defendants shall redeem the loan before 16.12.2011. However, the defendant had failed to do so and had accordingly requested for more time to redeem the mortgage. The plaintiffs acceded to the request of the defendants to extend the contract date to 25.12.2011 by making endorsement at the back of the Agreement dated 16.11.2011. Defendants also received another sum of Rs.1 lac in order to repay the loan but still failed to redeem the land. 25.12.2011 being holiday, plaintiffs went to the office of Sub Registrar on 26.12.2011 but defendants did not turn up. Thereafter, plaintiffs requested defendants to admit their claim, but the defendants refused to do so. Accordingly, present suit was filed on 14.05.2012.

3. Upon appraisal of the pleadings and the evidence led by the parties, the learned Additional Civil Judge (Senior Division), Batala had decreed the suit of the plaintiffs vide judgment and decree dated 20.02.2017, in the following terms:-

“10. In view of my aforementioned discussion and findings on above said issues, the suit of the plaintiffs is decreed with costs for possession by way of specific performance to the effect that defendants are directed to execute and register the sale deed in favour of the plaintiffs on payment of balance sale consideration regarding the suit property, in terms of the agreement dated 16.11.2011, within the period of two months, failing which the plaintiffs shall be at liberty to get the sale deed executed through the court.”

4. The Civil Appeal filed by the defendants was dismissed with costs by the learned District Judge, Gurdaspur vide judgment and decree dated 01.04.2023. Hence, present second appeal by the defendants.

5. It is inter alia submitted by learned counsel for the appellants that the learned Courts below were in error in decreeing the suit of the plaintiffs as they failed to appreciate that in the proceedings before the learned Trial Court, appellant No.1 had been proceeded against exparte. It is submitted that the appellant No.2 had duly appeared and filed written statement however, thereafter his lawyer had failed to pursue the matter diligently resulting in passing of impugned judgments and decrees. It is contended that the appellants cannot be made to suffer for the fault on part of their lawyer. Learned counsel for the appellants reiterates that the plaintiffs were not cross-examined due to the negligence of the lawyers; and it is settled law that due to the negligence of the lawyer the parties should not be allowed to suffer. It is submitted that