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Civil Petition for Special Leave to Appeal No. K‑164 of 1968, decided on 8th January 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 5th November 1968, in L. P. A. No. 199 of 1967).

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--Art. 58 (3) and Civil Procedure Code (V of 1908), O. XVII, r. 1‑Adjournmetzt Discretion of Court‑Supreme Court ordinarily does not interfere with.

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S. 73‑Receipt evidencing payment alleged to be forged‑Court whether under a duty to compare signature before arriving at finding that receipt was genuine‑Special Leave to Appeal granted by Supreme Court to consider question.

Akbar Mahmood, Advocate Supreme Court instructed by A. Aziz M. Dastagir, Attorney for Petitioner.

Nemo for Respondent.

Date of hearing : 8th January 1969.

The petitioner seeks leave to appeal from the judgment of a Division Bench of the High Court of West Pakistan, Karachi, dismissing a Letters Patent Appeal preferred against the judgment and decree of a learned Single Judge of that Court in a suit for specific performance of an agreement for the sale of a house for a consideration of Rs. 69,000.

The respondent filed a suit on the original side of the High Court of. West Pakistan, Karachi, for the specific performance of a contract of sale alleging inter alia that the defendant had agreed to sell Bungalow No. 63‑P, Block No. 2 situated at P. E. C. H. S., Karachi on 15‑12‑1965 and received Rs. 10 000 as earnest money. It was further alleged that petitioner there after received on different dates in Karachi 1Zs. 35,000 and Rs. 8,718.88 were paid to the House Building Finance Corpora tion and as the sale was not completed as agreed the respondent was compelled to file the suit.

The defence of the petitioner was that he had never agreed to sell the house. According to him Marghoob Alam, the husband of the respondent helped the petitioner with a loan of Rs. 8,'718.88 only which were paid to the House Building Finance Corporation. No other amount was received by the petitioner. The receipts evidencing payments of Rs. 35,000 were alleged to be forged. Marghoob Alam obtained signatures of the petitioner on some blank papers.

The suit came up for hearing on 30‑8‑67 and adjourned to 14‑9‑67. On that date it was not reached and the office adjourned it to 5‑10‑67. A prayer was made on that date for adjournment as the defendant was ill at Rawalpindi. The prayer was refused. Marghoob Alam only was examined on behalf of the plaintiff. No witness was examined on behalf of the defendant and the suit was decreed.

The learned counsel for the petitioner contended :‑

< [if supportLists]>(1) That the prayer for adjournment should have been allowed as the diary of the Court shows that there was no justification for the observation of the learned Judge that the suit was adjourned on 30‑8‑67 and 14‑9‑67 "on the specific request of the defendant".

< [if supportLists]>(2) That in view of the denial of the defendant that he had received Rs. 35,000 on different dates and the suggestion in cross‑examination that the alleged receipts were forged it was the duty of the learned Judges of the High Court to compare under section 73 of the Evidence Act the signatures on these receipts with the signatures on record and to arrive at a finding whether the receipts were genuine.

Adjournment is a matter of discretion with a Court and this Court does not ordinarily interfere with the exercise of such discretion. The second contention, however, merits consideration. We accordingly grant leave. Security‑Rs. 1,000. The execution of the impugned orders is stayed pending the disposal of the appeal on the petitioner's furnishing security in the sum of Rs. 10,000 to the satisfaction of the Addl. Registrar, High Court of West Pakistan, Karachi Bench within one month from this date to cover the claim for mesne, profits if any, of the respondent.

Leave granted.

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