HIMA KOHLI, J.

( 1 ) THE present appeal is directed against the judgment and decree dated 13th October, 2006 passed by the learned Additional District Judge in a suit for specific performance and permanent injunction instituted by the appellant against the respondents.

( 2 ) BRIEFLY stated the facts of the case are that the appellant, plaintiff in the court below, agreed to purchase the property bearing No. E-67, Moti nagar, (hereinafter referred to as 'the suit premises') from the respondents, defendants in the court below. While there is no dispute about the fact that the appellant had paid a sum of Rs. 4 lacs as earnest money to the respondents (a sum of Rs. 2 lacs having been paid on 21st January, 1996 and the balance sum of Rs. 2 lacs on 2nd February, 1996), the parties are not at ad idem in respect of the sale consideration of the suit premises. While it was the case of the appellant that the suit premises was agreed to be purchased by him for a sum of Rs. 10 lacs, the respondents contended that the sale consideration was fixed at Rs. 35 lacs.

( 3 ) IN the plaint, it was averred by the appellant that the receipt dated 2nd February, 1996 was in fact a receipt-cum-agreement and other terms and conditions of the agreement were settled between the parties orally. One of the terms and conditions of settlement, as agreed upon orally, was that the respondents would first get the requisite sale permission from the competent authority and shall then inform the appellant. And thereafter, within a month of the intimation, the balance amount of Rs. 6 lacs would be paid by the appellant to the respondents at the time of executing the sale deed. It was contended on behalf of the appellant that despite the letter dated 15th November, 1996 addressed to the respondents, the respondents failed to reply to the same and did not give any intimation to the appellant; thus compelling him to institute the suit out of which the present appeal arises.

( 4 ) ON the other hand, case of the respondents is that initially an agreement was executed between the parties on 20th January, 1996 wherein the sale consideration was specified as Rs. 35 lacs and at the relevant time, the appellant also paid a sum of Rs. 2 lacs to the respondents as earnest money. Though the aforesaid agreement was stated to be signed by both the parties, it was averred in the written statement that the appellant did not sign the carbon copy of the Agreement and retained the original. Thereafter, a sum of Rs. 2 lacs was paid by the appellant to the respondents on 2nd february, 1996. At that time, at the request of the appellant, the receipt of rs. 2 lacs executed on 20th January, 1996 was torn and a fresh receipt of rs. 4 lacs was executed by the respondent on 2nd February, 1996. Simultaneously, the previous agreement to sell dated 20th January, 1996 was also torn and a fresh agreement to sell was executed on 2nd February, 1996 wherein it was mentioned that the appellant had paid a sum of Rs. 4 lacs as earnest money leaving a balance of Rs. 31 lacs to be paid by him by 21st April, 1996. However, it was alleged by the respondents that the original agreement was again retained by the appellant and the respondents had in their custody, only a carbon copy of the earlier unsigned agreement dated 20th January, 1996 and not the subsequent agreement dated 2nd february, 1996. It was further submitted that the time for paying the balance amount was extended by the appellant from 21st April to 20th May, 1996 but he failed to pay the same in time. As a result, a legal notice dated 19th November, 1996 was served upon the appellant but he failed to pay the balance amount and consequently the earnest money was liable to be forfeited.

( 5 ) PRIOR to framing of issues in the matter, vide order dated 18th october, 2000, the court examined the appellant as also respondent No. 1 under Order X Rule 2 of the Code of Civil Procedure (CPC ). This statement was recorded in view of the fact that ther