1. ' This revision petition is directed against the judgment and decree dated 17-11-1991 passed by the IIIrd Additional District Judge, Karachi Central whereby appeal filed by the applicant was dismissed and the judgment and decree dated 26-7-1990 and order dated 25-3-1991 passed by the IIIrd Senior Civil Judge, Karachi Central were affirmed.
2. ' The facts leading to the filing of the above revision are that the respondent filed suit for possession and recovery of mesne profits against the petitioner. In the plaint, the plaintiff/respondent averred that one Abu Bakar Khan who had acquired and constructed property being No, 62-A, Block 1, Liaquatabad, Karachi had made donation/gift of the said house to the respondent for its utilisation for charitable purposes and towards the fulfilment of the aims and objects of the respondent Trust.
3. The petitioner was relative of the said Abu Bakar and used to come to see him. The previous owner died on 19-9-1979 at Karachi. It is the case of the respondent that the petitioner shifted to the ground floor of the said house where he himself was residing in order to look after him. After the death of the said previous owner, the petitioner asked the respondent to allow him to live till the Chelum of the deceased. The respondent having no reason of doubt and in best regard to the deceased allowed him to stay there. But he avoided to vacate the ground floor on one reason or the other. The respondent filed the above suit for possession and recovery of mesne profits. The petitioner contested the suit by filing written statement. The trial Court framed appropriate issues.
4. The respondent examined Muhammad Iqbal, Nazim-e-Ala of the respondent. The petitioner did not lead any evidence in support of his contention. The learned Senior Civil Judge on assessment of the evidence adduced by the respondent, came to the conclusion that the respondent is owner of the house. He decided issue No,2 as not proved against the petitioner as he failed to lead any evidence. In that view of the matter, the suit for possession was decreed and it was held that the respondent is entitled to mesne profits at the rate of Rs,500. The respondent filed execution application being Execution Application No,10 of 1990. During the pendency of the execution application, the petitioner filed application under Order IX, Rule 13, C.P.C. Praying that the ex parte judgment be set aside. This application was filed on 3-1-1991 stating that he came to know about the ex parte judgment on 3-1-1991. The respondent resisted the application. The application was dismissed on 25-3-1991 on the ground that the judgment was given on merits and it was not ex parte. The petitioner challenged the impugned order before the District Judge, Karachi South which was ultimately dismissed by the IIIrd Additional District Judge. She held that the application for setting aside ex parte judgment was not maintainable and it was barred by time. The petitioner challenged the impugned judgment in the present revision petition.
5. ' I have heard Mr. S. Ishtiaque All Kanhorvi and Mr. Abrar Hassan, learned counsel appearing for the parties. I have perused the judgment and order of the Courts below and have gone through the R & P of the case.
6. ' It is not in dispute that the petitioner filed written statement and also cross-examined the witness of the respondent. A perusal of the judgment of the trial Court would show that the trial Court framed five issues. The learned Civil Judge discussed the issues 1 and 4 together and held that the respondent is owner of the suit premises. It is well settled legal position that the pleas taken in written statement are not evidence by themselves but these pleas have to be proved by evidence.
7. In Mst. Khairunnisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), it was held that the fact that the defendant by filing written statement but choosing to remain absent and failing to step in the witness-box as witness was sufficient to discard his case. This principle was followed in Messrs United Bank Ltd. v. Interior Decoration & Design Association and others (1983 CLC 244).
8. ' The other aspect of the case is that the judgment was dated 26-7-1990 and the application for setting aside the same was moved on 3-1-1991.
9. ' In the instant case, Article 164 of the Limitation Act is applicable, it prescribes period of thirty days for moving application for setting aside the decree. The time for setting aside such decree would run either from the date of decree or where summons were not duly served, when the defendant got knowledge of the decree. In the instant case, the petitioner not only filed written statement but he also cross-examined the plaintiff/respondent's witness. Thereafter he remained absent. The period would thus run from 26-1-1990 and not from 3-1-1991.
10. ' Mr. S. Ishtiaque All Kanhorvi vehemently contended that the petitioner had not received notice of transfer of the case. This contention is devoid of force for more than one reason. Firstly Section 24- A of the Code was interpreted by the Hon'ble Supreme Court in the case of S. Irshad Hussain and another v. Azizullah Khan and another 1987 SCM R 150. It was observed as followse:--- "The language of Section 24-A, subsection (2) in fact reflects this purpose and seeks to achieve it by making it obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred. The only duty placed on the Court is to inform them so when they approach it for that purpose. There was no indication on the record that any defaulting defendant had approached any of the Courts for that purpose."
11. ' I have perused the record of the case and on perusal thereof I find that the above suit was transferred to the Court of IIIrd Senior Civil Judge on 21-8-1988 and the learned counsel appearing for the parties waived the notice on 14-1-1989. Thereafter learned counsel appearing for the petitioner attended the Court upto 22-5-1989 and thereafter he did not pursue the matter. It is pertinent to note that during the period of his appearance, he did not raise any objection, neither took time to seek instructions from the petitioner nor wanted to withdraw the vakalatnama. In that view of the matter, the plea that notice was waived subject to intimation to the client, has got no force. The learned Senior Civil Judge rightly decided the suit on merits. The application was barred by time.
12. ' In the instant case, it is an admitted position that the petitioner has not challenged the decree on merits. In these circumstances, it is not possible to set aside the decree on merits. The Courts below having found as a fact that the application was barred by time, this Court cannot, in the absence of a finding that the reasons were arbitrary or perverse, set aside the same.
13. ' This revision petition must, therefore, fail and is accordingly dismissed hereby. The parties are directed to bear their own costs.