1. M. R. KHAN, J.-The petitioner was the defendant in a suit for specific performance of a contract of sale, dated the 2nd January 196;1, brought by the respondent. The contract sought to be enforced was in respect of shop No. 2-87-165, situated at Shanpur Saddar, District Sargodha. This contract was admitted by the petitioner. He, however, took the defence that on the same date another contract was made between the parties where--under the respondent was to pay the balance of tire consideration money within two years of that contract failing which the earnest money of Rs.
2. 2,000 was liable to be forfeited. His specific plea was that the respondent failed to pay the balance consideration within the stipulated period and, as such, the contract was not liable to be enforced.
3. This plea was rejected by the trial Court, and the suit was decreed. The decree was maintained on appeal. A second appeal was dismissed in limine by a learned Judge of the High Court of West Pakistan, Lahore. The petitioner now seeks special leave to appeal.
4. The petitioner's case depended on the second contract alleged to have been entered into between the parties on the 2nd January 1961. In the opinion of the Courts of fact, this contract was not proved, although the trial Court gave an opportunity to prove that contract by giving a secondary evidence, the original not being available. Learned counsel for the petitioner submits that the Court did not give an adequate opportunity to prove the second contract by secondary evidence. When the defence plea rested on the alleged second contract, the petitioner ought to have filed that contract in Court along with his written statement, but this was not done. It was only after. The conclusion of the evidence on the plaintiff's side on the 24th January 1967, that the petitioner made an application the next day to the trial Court stating that the original second contract was lost and that he should be given an opportunity to give secondary evidence. This opportunity was given by the trial Court, but the petitioner could not produce any secondary evidence except a copy of a private register said to have been maintained by the scribe of the alleged second contract. The alleged register being a private document, the petitioner should have recalled the scribe, who had been earlier examined as a witness for the plaintiff, and asked him about the alleged second contract, but this was also not done. It was within special knowledge of the petitioner that the alleged second contract was lost. He should have, therefore, asked the scribe ,2 about that contract whom he was examined on the plaintiff's side, but no question whatever was put to him with regard to the alleged second contract. In this circumstance, no legitimate exception can be taken to the rejection of the defence plea raised) in the suit. There is no merit in this petition. The petition is, accordingly, dismissed.