Law: Civil Procedure Code (V of 1908)

Section: 19,12,17,30,11

(a) Civil Procedure Code (V of 1908),   S. 96 and O. XLI, rr. 12, 17 & 30-Appeal-Engaging of or representation by counsel-Not necessary-Date fixed for arguments-Respondent unrepresented by counsel-Court offering to grant adjournment on payment of costs-Offer refused-Disposal of appeal in presence of respondent without affording any-further opportunity to him for engaging counsel-Held: proper.   (b) Civil Procedure Code (V of 1908),   S. 11-Expression " Court competent to try such subsequent suit " Judgment of special Tribunal-Res judicata only on matters within exclu sive jurisdiction of such Tribunal-Decision on matters not within special jurisdiction of Tribunal-Does not operate as res judicata in civil Courts-Conciliation Courts Ordinance (XLIV of 1961), Ss. 2 (b) -& 3.   (c) Conciliation Courts Ordinance (XLIV of 1961),   Ss. 2 (b), 3 & 4-"Conciliation Court" -Not "Court" within meaning of S. 11, C. P. C. Finding by Conciliation Court, on complaint under Ss. 339/341, P. P. C., that S had right of way over land of N-Does not operate as res judicata so as to bar suit by N seeking perpetual injunction -restraining S front passing through N's land-Civil Procedure Code (V of 1908), S. 11.   Date of hearing: 9th February 1965.   JUDGMENT   The facts giving rise to this second appeal briefly are that Haji Niamat Khan, resident of village Kula Band, Umarzai, Tahsil Charsadda, District Peshawar, had brought a suit against Sultan, resident of village Umarzai, for perpetual injunction, restraining him from passing through his field comprised in Khasra No. 314 and using it as a thoroughfare. The defendant contested the suit on various grounds, alleging that the question of his right of way. through the field comprised in Khasra No. 314 had already been decided in his favour by the Conciliation Court of the Union Council.   2. The following issues were framed:-   Whether the suit is res judicata?   Whether the plaintiff has any cause of action?   Whether the suit is within time?   Whether the suit does not lie in its present form?   Whether the valuation…