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Regular Second Appeal No. 189 of 1964, decided on 9^th February 1965.

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.

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.

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.

Mahfooz Khan for Appellant.

Mian Qaim Shah assisted by Q. Abdul Wahab for Respondent.

Date of hearing: 9th February 1965.

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:‑

(1) Whether the suit is res judicata

(2) Whether the plaintiff has any cause of action

(3) Whether the suit is within time

(4) Whether the suit does not lie in its present form

(5) Whether the valuation of the suit for the purposes of Court‑fee is not given in the plaint, if so, to what effect

(6) Whether there are certain other persons who Were necessary parties to the suit

(7) Whether Khasra No. 314 belongs to the plaintiff and is he entitled to the injunction prayed for

(8) Whether the defendant has acquired his rights of way by prescription

(9) Relief.

3. After the conclusion of the evidence produced by the parties, the trial Judge found issue No. 1 against the plaintiff and I leaving the other issues undetermined, dismissed

the suit, by his order dated the 13th of November 1963.

4. The Additional District Judge set aside the finding of lower Court on issue No. 1, accepted the appeal and remanded the case under Order XLI, rule 23, C. P. Code for deciding the issues left undetermined. The defendant has come up on second appeal to this Court.

5. Two points were urged by the learned counsel for the appellant:

(1) That the appellant was not heard by the Additional Distktrict Judge before the order in appeal was passed.

(2) That, there is material on the record to show that suit brought by the plaintiff-respondent was res judicata.

6. In support of his contention that the appellant was not heard by the lower appellate Court, the learned counsel for the appellant referred to the judgment under appeal. In para. 2 of his judgment, the Additional District Judge has observed:‑

"On the date fixed for arguments in appeal, the respondent arrived rather late, i.e., when the counsel for the appellant had almost finished his arguments ex parte. Since the respondent r cannot properly explain his case, being un -represented it was offered to him that hearing would be adjourned on payment of costs, if he so desired, so that be might engage a counsel for the next date. The respon dent declined the offer and wished the appeal, to be decided on the basis of the evidence on record. On the next date fixed for the announcement of the order, he filed .an applica tion seeking the postponement of the decision of appeal, so that be could engage a counsel. But the application was rejected, because it was too late."

Commenting upon the observations of the lower Appellate Court, the learned counsel for the appellant contended that no opportunity was given to the appellant to engage a counsel and argue his case,' and, therefore, the order of the learned Additional District Judge is bad.

7. I do not find myself in agreement with the contention of the learned counsel for the appellant, because the law no where provides that litigants must be represented, by counsel. Furthermore, the lower appellate Court had offered to adjourn the case on payment of costs with a view to enable the appellant to engage a counsel, but this offer was declined by A the appellant.. Besides this, appellant was present all along in the Court during the hearing of the appeal and so it cannot be said that the appellant was not heard. In these circum stances, I am of the opinion that the Additional District Judge was perfectly right in hearing the appeal.

8. The next question for determination in this appeal is as to whether the appeal is res judicata or not. A complaint under sections 339 and 341, P. P. Code was filed by the appellant in the Conciliation Court of the Union Council Umarzai and after holding inquiry, the Conciliation Court came to the conclusion that the appellant had a right through the field of the respondent. The revision petition preferred by the respondent was dismissed by the controlling authority. The finding of the Conciliation Court is at page 47 of the file.

9. Learned counsel for the appellant contended that no Court is competent to try the issue of right of way after it had already been decided by the Conciliation Court. I do not find myself in agreement with the contention of the learned counsel for the appellant. Section 11 of the Civil Procedure Code lays down:‑

"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

10. Now a reference to page 48 of the file would show that a complaint under section 339 read with section 341, P. P. Code was brought by the appellant against the respon dent in the Conciliation Court, and so it cannot be said that the finding of the Conciliation Court holding that the appellant had a right of way over the land of respondent operates as res judicata .and bars the present suit, because the Conciliation Court is not a Court but is a Special Tribunal. Furthermore, the proceedings of the Conciliation Court were initiated on a complaint under section 339/341, P. P. Code, and so it cannot be said that the matter in dispute in the present suit was directly and substantially in issue before the Conciliation Court. The Conciliation Court is admittedly not a Court, but it is Special Tribunal.

11. The well‑recognized principle in respect of the judgment of the Special Tribunal is that it is res judicata on a matter, which is within the exclusive jurisdiction of the Tribunal, but it does not in any way bar the civil Courts on matters, which are not within the special jurisdiction of the Tribunal. The matter before the Conciliation Court was a criminal complaint and not a civil suit. Furthermore, the next point for decision is as to whether the Conciliation Court itself was competent to grant a decree for the right of way through an other person's field. Subsection (4) of section 8 of the Conciliation Courts Ordinance, 1961, is to the following effect:

"Notwithstanding anything in any law any matter decided by a Conciliation Court in accordance with the provisions of this Ordinance shall not be tried in any Court, including a Conciliation Court."

The Conciliation Courts Ordinance and the order passed by the Union Council do not show that the Conciliation Court was competent to decide a civil issue of the nature involved in the present case and, therefore, the finding given by the Conciliation Court on the complaint under section 339/341, P. P. Code, filed by the appellant that he had a right of way through the land of respondent is not res judicata, as the, provisions of section 11, Civil Procedure Code, are not attracted. The Conciliation Court, being Special Tribunal, its judgment does not bar the civil Courts on matters, which are not within the special jurisdiction of the Tribunal.

12. As a result of the foregoing discussion, I maintain the order of the lower appellate Court and dismiss this appeal with costs.

K. B. A. Appeal dismissed.

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