Law:

Section:

(a) Res judicata-------Principle of ---Scope---Where any "issue" covering substantially the same matter has once been heard and decided by a former Court, the same could not be agitated or tried again in a subsequent suit. (b) Civil Procedure Code (V of 1908)--- ----S. 11, & O.XVII, R.3---Res judicata, principle of ---Applicability--­Pleadings at variance in both the suits---Controversy had substantially been in issue between the same parties in the former suit dismissed under O.XVII, R.3, C.P.C. ---Both the Courts below had dismissed the suit on the basis of doctrine of res judicata---Plea raised by the plaintiff was that principle of res judicata was not applicable as the previous suit had not been decided on merits and the pleadings of the parties were at variance in both the suits--­Validity---Where the Court proceeded to decide the suit under O.XVII, R.3, C.P.C. it was a decision on merits and a fresh suit on the same cause of action was barred under S.11, C.P.C.---Plaintiff having himself had filed the earlier suit which was dismissed under O.XVII, R.3, C.P.C., and the was not challenged any further, the plaintiff was bound by such determination irrespective of the pleadings of the parties---Determination of the "issue" is found mentioned in S. 11, C.P.C. which issue had stood determined in the former suit---View taken by both the Courts below could neither be regarded illegal nor suffering from any material irregularity. (c) Civil Procedure Code (V of 1908)--- ----S. 11---Res judicata---Dismissal of suit on principle of---Dismissal of suit on the doctrine of res judicata could not be termed as the decision based on technicalities. Habibur Rehman v. Abdul Rehman and 3 others 1987 CLC 195; Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Inayat Ullah v. Khan Begum and others PLD 1958 (W . P.) Lah. 686 distinguished. JUDGMENT Niaz Ahmed Khan son of Hayat Din Khan the petitioner herein had instituted a suit for possession through partition of the suit property in the year 1989. He had impleaded therein the other legal representatives of Hayat Din Khan deceased. The suit was contested inter alia on the…

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