JUDGMENT :- This appeal is directed against the order dated 13-2-1974 passed by Civil Judge. Sr. Div. Quepem dismissing appellants application under O. 9, R. 13, Code of Civil Procedure for setting aside the ex parte decree passed on 20-11-1973.

2. This was a suit for recovery of Damages amounting to Rs. 10,085.25 p. On an earlier occasion that is on 6-11-1970 the Court had proceeded under O. 9. R. 6 of the Code of Civil Procedure because the defendants and their counsel did not appear on the date of the hearing. An application under Order 9, Rule 7, Civil P. C. for setting aside the ex Parte order filed by the defendants was dismissed and a Revision against the order of dismissal was also dismissed by the Court of Judicial Commissioner. The result was that the defendants joined the proceedings at a subsequent stage without getting an opportunity of filing the written statement.

3. The case was posted for evidence and plaintiffs evidence was concluded. Defendants counsel was given an opportunity of cross-examining the witnesses examined by the plaintiffs and the learned lower Court adjourned the case for defendants evidence. On 20-11-1973 which was the adjourned date neither the defendants nor their advocate appeared before the Court and the learned Judge once again proceeded ex parte under Order 17, Rule 2 of the Civil P. C. The same date the judgment was pronounced.

4. Defendants applied under O. 9, Rule 13, Civil P. C. for setting aside the ex parte decree. The application was not filed by any of the defendants but by their advocate Mr. M. D. Gaitonde. It was not accompanied by any affidavit nor were the contents verified. The ground given in the application was that the Advocate was under the impression that the case was adjourned to some date in 1974 and was not aware of the date for which the case was posted i. e. 20-11-1973. He therefore, did not inform the defendants and the non-appearance of the defendants was due to the advocates bona fide mistake.

5. This application was opposed by the plaintiffs who submitted that on the previous date of hearing defendants advocate was present in Court and in his presence the case was adjourned to 20-11-1973 for examination of the defendants witnesses. They denied that there was any bona fide mistake on the part of the Advocate or that it could be a sufficient cause for defendants non-appearance.

6. The learned lower Court in its impugned order doubted the maintainability of the application. It was also observed by him that the application though in the form of an affidavit was not properly sworn as required by law. On merits the learned Judge found that the reason advanced by the defendants Advocate in the application could not constitute a sufficient cause for setting aside the ex parte decree.

7. The technical objection about the maintainability of the application filed by the advocate should not detain us. The Vakalatnama filed by the defendants in favour of Advocate Shri Gaitonde empowered him to plead and act on their behalf. O. 3. R. 1. Civil P. C. permits filing of an application by a pleader on behalf of a party if the pleader has been duly authorised under Rule 4 of the above Order. In the present case there was such an authorisation and the application was quite in order.

8. On merits however, I am of the opinion that the learned Judge should have recorded a clear finding after taking such evidence as he thought fit on whether defendants advocate had really committed a bona fide mistake with regard to the adjourned date of hearing to which the case was posted. If the mistake was bona fide (to ascertain which fact there was no inquiry nor was any evidence obtained) it could provide a sufficient cause for purposes of Order 9, Rule 13, Civil P. C. In a case somewhat similar to the case under appeal the Bombay High Court held that the non-appearance of the defendant due to the failure of the Advocate to inform him about the date of hearing was a sufficient cause for setting aside

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