Through this ICA the appellant (who is mover of an application under section 12(2) of the C.P.C. on 23.07.1997 against the judgment passed by this Court in Writ Petition No. 73-R of 1991 on 14.7.1992), has challenged the order of dismissal of his application dated 6.4.2015. The learned Single Judge dismissed the application on the point of limitation that application was competent within three years from passing of the judgment by this Court while deciding Writ Petition No. 73-R of 1991 on 14.7.1992 under residuary Article 181 of the Limitation Act, 1908 whereas the applicant has pleaded in the application that he came to know about the judgment passed in the writ petition dated 14.7.1992 in March, 1997 from Halqa Patwari as pleaded in Ground No. 8 of the grounds for moving the application under section 12(2) of the C.P.C. whereas the application was filed on 23.7.1997. The appellant was required to satisfy about the delay in filing the application from March, 1997 to 22.7.1997.
2. Further during hearing a query was put to the learned counsel for the appellant that how the ICA is competent against the judgment passed by the learned Single Judge whereby an application under section 12(2) of the C.P.C. was dismissed against the judgment passed in a writ petition and in the writ petition the order of Additional Commissioner (Revenue) dated 24.1.1989 was challenged through following prayer:- "It is, therefore, respectfully prayed that the impugned order passed by the learned Additional Commissioner (Revenue) respondent No.2 dated 24.1.80 along with the antecedent proceedings resulting and culminating in forcible attempted seizure of the disputed property, may kindly be declared to be without lawful authority and of no legal effect and may be quashed as such".
Learned counsel for the applicant could not satisfy us on the point of limitation. Further learned counsel is also unable to satisfy about the maintainability of the ICA when order of Additional Commissioner (Revenue) was under challenge in the writ petition.
3. We are of the considered view that law has not provided substantive right of appeal under the C.P.C. against the decision of the application under section 12(2) of the C.P.C., therefore, it is a matter of consideration that how appeal will be available in the instant matter when the writ petition was decided and the application moved under section 12(2) of the C.P.C. was dismissed. In our view the order passed in a writ petition subject matter of application under section 12(2) by no stretch of imagination can be recorded as an order passed while exercising original civil jurisdiction and the right of filing of ICA in accordance with Section 3(2) of the Law Reforms Ordinance, 1972 was confined to those orders of a learned Single Judge of the High Court which were passed under Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973 and the subject matter of this appeal being an order passed under section 12(2) of the C.P.C. which is absolutely not appealable under the Statute governing the section referred supra how the I.-C.A. can be said to be competent. The subject matter of the writ petition is not the proceeding coming from any suit filed before the Civil Court or coming from the Civil Jurisdiction. We are clear in our mind that right of appeal is a substantive right unless it is provided under the Statute it cannot be exercised.
4. We are further of the view that in accordance with Article 175(2) of the Constitution of Islamic Republic of Pakistan, 1973 no Court shall exercise any jurisdiction in any matter brought before it until unless such jurisdiction has been conferred upon it by the Constitution itself or under any law.
Article 175(2) is reproduced verbatim for ready reference:- "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."
In this view of the matter, we are clear that appeal is not competent and same stands dismissed in the light of judgments of august Supreme Court of Pakistan reported as "S.M. Waseem Ashraf v.
Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others"
(2013 SCM R 338) and "Saif-ur-Rehman Toor and another v. Registrar, Cooperative Society, Punjab, Lahore and 11 others" (2002 YLR 3343).