SHAHID WAHEED, J. Challenge in this Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is to the order dated 9th October , 2019 whereby the application brought by the appellant under Section 12(2) CPC (that is, C.M.No.1 of 2019) for setting aside the order dated 22nd November , 2018 passed by the learned Single Judge in a petition, to wit, W.P.No.732 of 2017 filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 was dismissed.
2. The facts of this case are set out in detail in the order under appeal made by the learned Single Judge and need not be recapitulated here in extenso. Suffice is to mention here for the purpose of this appeal that the PSIC Employees Co-operative Housing Society (respondent No.1) moved the learned Single Judge of this Court through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") with a prayer that Zaeem Hussain Qadri (respondent No.2) be directed to hand over possession of developed land in the shape of 48 plots by retaining 33% of developed land (16 plots) in consonance with the general principle of exemption and also deposit necessary development charges as per judgment of the Hon'ble Supreme Court of Pakistan and to declare subsequent sale executed by the said respondent null and void. On 22nd November , 2018 Zaeem Hussain Qadri appeared before the learned Single Judge and gave a statement that he had no objection to the implementation of the judgment delivered by the Hon'ble Supreme Court of Pakistan. On the basis of said statement the constitutional petition (that is, W.P.No.732 of 2017) was dispo sed of vide order dated 22nd November , 2018 with the direction to the PSIC Employees Co-operative Housing Society (respondent No.1) and the Deputy Commissioner , Lahore to implement the judgment of the Hon'ble Supreme Court of Pakistan by following due process.
3. The appellant was not made party in the constitutional petition brought by the PSIC Employees Co-operative Housing Society . His claim was that the PSIC Employees Co-operative Housing Society wanted to recover his land under the garb of the judgment of the Hon'ble Supreme Court of Pakistan. He was thus, aggrieved and wanted to challenge the order dated 22nd November , 2018 made in W.P.No.732 of 2017 on the ground of fraud, misrepresentation and want of jurisdiction. It is to be noted that the power to set aside a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction is available in the Code of Civil Procedure, 1908 ("CPC"). The question then arose as to whether the appellant could avail the remedy provided under Section 12(2)
CPC. To answer this question it is essen tial to examine the nature of the jurisdic tion of this Court and how it is exercised. Here, we are only concerned with the High Court' s jurisdiction under the Constitution. The nature of this jurisdiction was considered by the Hon'ble Supreme Court in Mumtaz Khan' s case , Ahmad Khan' s case and Ilyas Miraj' s case . In the first case, it was held that an order passed by a Single Judge in writ jurisdiction amounts to exercise of original jurisdiction. In the second case the jurisdiction was held to be a constitutional jurisdiction of an original kind. In the third case the exercise of what is commonly termed as the writ jurisdiction, was considered to be a special original jurisdiction of the High Court and not ordinary original civil jurisdiction. Obviously , the jurisdiction under Article 199 of the Constitution pertains to civil as well as other matters. A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of the Court' s jurisdiction invoked for enforcement of such a right . It is an admitted fact that in the case in hands the petition made before the learned Single Judge under Article 199 of the Constitution was for the enforcement of a civil right and thus, it was a civil proceeding, although the High Court' s jurisdiction in such a proceeding was constitutional jurisdiction of an original kind. The law which regulated civil proceedings was provided in the CPC. The Privy Council in Sabitri Thakurani' s case observed: "the Code is framed on the scheme of providing generally the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction to which the Code is not to apply" . Relying upon the words "whatever it may be" used in the above stated observation the Hon'ble Supreme Court in Hussain Bakhsh' s case held that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court' s jurisdiction in a civil matter , whatever may be the nature of that jurisdiction. In this perspective, the power to set aside the order on the ground of fraud, misrepresentation or want of jurisdiction under Section 12(2) CPC was available and could be availed by the appellant. It appears that the appellant being acquainted with this background of law had filed application under Section 12(2) CPC, that is, C.M.No.01 of 2019. This application was resisted by the present respondents. On consideration of the matter , the learned Single Judge found that no case under Section 12(2)
CPC was made out and thus, dismissed the application through order dated 9th October , 2019. So, this appeal against the order dated 9th October , 2019.
4. In the circumstances described above, a substantial preliminary question arises which must be decided first because if its answer comes in the positive then we can examine the other questions involved in this appeal. The question is whether the appellant could be allowed to maintain this appeal to challenge the order dated 9th October , 2019 made by the learned Single Judge on his application under Section 12(2) CPC.
5. The law governing the preliminary question, under consideration, is provided in Section 3 of the Law Reforms Ordinance, 1972. This Section consists of two parts. The first part is sub-section (1) of Section 3 which lays down that an appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction. Since we are faced with the order that the learned Single Judge has made under Section 12(2) CPC, we have to determine whether we consider the impugned order as "decree" or construe it as an "order passed in original civil jurisdiction". The term "decree" is defined in Section 2(2) CPC as meaning "the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the Suit ............." To constitute a decree, the decision must fulfill the following conditions: a) The decision must be arrived at in a suit; b) The decision must have been expressed on the rights of the parties with regar d to all or any of the matters in controversy in the suit;1 2 3 4 5 6 c) The decision must be one which conclusively determines those rights; and, d) There must have been a formal expression of an adjudication.
If in a case of a particular decision all the above-stated elements co-exist then it is a decree, unless it is expressly excepted by the CPC. If, however , any of the afore-said ingredients is absent, the decision cannot be taken to be a decree. Although an application under Section 12(2) CPC is a civil proceeding yet it cannot be regarded as a suit.
Every suit is commenced by a plaint . Where there is no civil suit there is no decree . So, order made on an application under Section 12(2) CPC cannot be treated as a decree because afore-mentioned elements are wanting here.
5. Now, we turn to another facet of the matter and examine whether an order made on the application under Section 12(2) CPC filed in a constitutional petition or writ petition can be considered as an "order passed in original civil jurisdiction". In Arif Raza Rizvi' s case it was held that the mere fact of a matter coming directly before the High Court under a law would not, however , suffice to bring it within the ordinary original civil jurisdiction. The term "Original Jurisdiction" according to Black' s Law Dictionary , Sixth Edition, means "Jurisdiction to consider a case in the first instance. Jurisdiction of Court to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. Distinguished from appellate jurisdiction". Viewing the matte r in hand in the light of above definition, we find that the remedy of making an application under Section 12(2) CPC would arise only if there was a judgment, decree or order of a Court, meaning thereby that it was contemplated as a sort of reconsideration or reopening or in a way review of a decided matter though on the limited ground of fraud, misrepresentation or want of jurisdiction; such type of a rethinking of the matter , relating to enforcement of civil right, brought before the Single Judge in his constitutional jurisdiction could not possibly be claimed to be an exercise of original jurisdiction. As a consequence, we hold that order under Section 12(2) CPC made in a petition brought before a Single Judge of this Court under Article 199 of the Constitution could not be challenged by invoking Section 3(1) of the Law Reforms Ordinance, 1972. Even otherwise, an order under Section 12(2) CPC is not one of those orders which are appealable under Section 104 CPC or Order XLIII Rule 1 CPC. There is no other law for the time being in force which makes the order under Section 12(2) CPC appealable.
6. This brings us to sub-section (2) of Section 3 of the Law Reforms Ordinance, 1972. Under this sub-section an appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution but not being an order made under the sub-paragraph (i) of paragraph (b) of that clause. But this is subject to and controlled by the proviso which postulates that the appeal shall not be available or competent if the petition brought before the High Court under Article 199 of the Constitution arises out of any proceedin g in which the law applicable provides for at least one appeal or one revision or one review to any Court, Tribunal or Authority against the original order . It has already been stated that the appellant through his application under Section 12(2) CPC had challenged the order dated 22nd November , 2018 made by the learned Single Judge in a petition brought by respondent No.1 under Article 199 of the Constitution (i.e. W.P.No.732 of 2017) on the ground of fraud, misrepresentatio n and want of jurisdiction. This application was dismissed vide order dated 9th October , 2019. It could be said without any doubt or reservation that the order on the application under Section 12(2) CPC could not be equated to the order of the High Court which it issued under clause (1) of Article 199 of the Constitution. Such order had its own distinct status and, therefore, it could not be held to be an appealable order under Section 3(2) of the Law Reforms Ordinance, 1972.
In this regard support can be had from Saif-Ur-Rehman Toor's case and Muhammad Akram' s case .
7. Upshot of the above discourse leads to the conclusion that answer to the preliminary question is in the negative and as a consequence, this appeal is found to be not maintainable. In this view of the matter there is no need to dilate upon other questions involved in this appeal.
8. Dismissed. Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and Mst. Khurshid Begum (PLD 1966 Supreme Court 276)7 8 9 10 11 1 Ahmad Khan v. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar , High Court of W est and others (PLD 1968 Supreme Court 171) Brother Steel Mills Ltd. and others v . Mian Ilyas Miraj and 14 others ( PLD 1996 SC 543 ) Bradlaugh v . Clarke (8 AC 354) Mt. Sabitiri Thakurain v . Savi and another (A.I.R 1921 Privy Council 80) Hussain Bakhsh v . Settlement Commissioner , Rawalpindi and others (PLD 1970 Supreme Court 1) Ram Kirpal Shukul v . Mussumat Rup Kuari (1883) 1 1 Ind. App 37 (PC) and Brother Steel Mills Ltd. and others v . Mian Ilyas Miraj and 14 others ( PLD 1996 SC 543 ) Minakshi Naidu v . Subramanya Sastri (1888) ILR 1 1 Mad 26 (PC) Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman /M.D., Karachi (PLD 2001 SC 182) Saif-Ur-Rehman Toor and another v. Registrar , Cooperative Society , Punjab, Lahore and 11 others (2002 YLR 3343 ) Secretary Agriculture, Government of the Punjab and another v. Muhammad Akram and another (2005 MLD 915)