' ABDUL QADEER CHAUDHRY, J.---This appeal by the leave of the Court is directed against the judgment dated 15-9-1985 passed by the Lahore High Court.
2. The facts giving rise to the present appeal, are that House No, H-66 situated on Murree Road, Rawalpinid, an evacuee property, was allegedly occupied by one Sheikh Muhammad Din son of Hukam Din, a local Muslim on the migration of the evacuee owner. On the death of Sheikh Muhammad Din, the house remained in occupation of his sons, namely, Muhammad Ishaq, Muhammad Hanif and Muhammad Idrees who remained in its possession till 31-3-1960. Being locals they were not eligible for transfer of the said house, they inducted Allah Wasaya son of Haji Muhammad in the `Baithak' of the said house in October, 1959. As Allah Wasaya and his wife Mst. Shad Begum were permanently living in Multan and had got their claim registered there under the provisions of Act No, III of 1956, Allah Wasaya and Mst. Shad Begum submitted Form 'A' in duplicate to the Deputy Settlement Commissioner, Multan on 29-4-1959 showing their asddress at Multan which was registered at Serial No, 231, but while submitting this Form they did not disclose the fact that they were in possession of House No,H-66. But after occupying the Baithak of the suit house they mentioned it in their Form A and consequently as alleged by the appellants in collusion with the settlement staff they inserted the words "66-H Murree Road, Rawalpindi" but the original Form A could not be interpolated as the same was on record with the Chief Settlement Commissioner, Lahore.
3. On 10-4-1960, the Deputy Settlement Commissioner, Rawalpinid, cancelled the transfer of Allah Wasaya and Mst. Shad Begum on the main ground that they were not in possession of the suit house before 20-12-1958. On 26-6-60, Syed Iftikhar Hussain, predecessor-in-interest of the appellants, submitted his CH form for transfer of the suit house which was approved and the house was transferred to him. Syed Iftikhar Hussain surrendered his rights in favour of Syed Ghulam Hussain, husband, of appellant No,1 and in pursuance of this 'Deed' a Provisional Transfer Order was issued in favour of Syed Ghulam Hussain.
4. Allah Wasaya and Mst. Shad Eegum filed a revision petition before the Additional Settlement Commissioner, which was dismissed on 31-12-1960. They filed review petition which was also dismissed. On a second revision petition before the Settlement Commissioner, Rawalpindi, filed by Mst. Shad Begum, the case was remitted to the Deputy Settlement Commissioner for fresh decision after considering the case of each party in the light of the documentary evidence. The Deputy Settlement Commissioner upheld the transfer made in favour of Syed Iftikhar Hussain and rejected the C.H. Form of Mst. Shad Begum. She filed an appeal before the Additional Settlement Commissioner which too was dismissed.
5. Ghulam Hussain made an oral gift of the suit house to the appellant who took over the prossession of the suit house and since then it is alleged that she is in possession.
6. Aggrieved by the aforesaid order, Allah Wasaya and Mst. Shad Begum filed a writ petition which was accepted by the order dated 13-10-1966. Syed Ghulam Hussain filed an L.PA. Which was dismissed having abated. The appellant then filed petition for leave to appeal but due to addition of subsection (2) to section 12 the petition was withdrawn on 8-6-1981. The application under section 12(2), C.P.C. In Writ Petition No, 2170-R of 1963 on the ground of fraud, misrepresentation was dismissed by the impugned order dated 15-9-1986 as time-barred.
7. We have heard the learned counsel for the parties. We are of the view that the application under section 12(2), C.P.C. Could not have been dismissed on the ground of limitation after recording a finding "though only remedy against the judgment under Writ Petition lay by way of an appeal or a separate suit. Even otherwise, under section 12 (2), C.P.C. An application is to be made after final disposal of the case as such the application was maintainable. As regards the period of limitation, this Court in Muhammad Iqbal v. Muhammad Alamgir (1990 SCMR 1377) has observed that Article 181, Limitation Act applies to the proceedings under section 12(2), C.P.C. Therefore, the application under section 12 (2) was within time. As regards the abatement of the proceedings this Court in Khushi Muhammad v. Aziz Bibi (1980 SCMR 531) has observed that "the Court may proceed with the suit and announce judgment or order and such judgment or order, notwithstanding death of plaintiff, is possessed of the same force and effect as pronounced before death of such plaintiff'.
8. Both sides were guilty of not impleading necessary parties in (i) Respondents' Writ Petition and (ii) in Appellants' Letters Patent Appeal despite plaintiffs death.
9. In the result, the appeal is allowed, the order of the High Court dated 19-5-1985 is set aside and the Writ Petition (W.P. No, 2170-R/63) shall be deemed as still pending, is revived and the case is remanded to the High Court for disposal on merits. There will be no order as to costs.