A court has the discretion to set aside an ex parte order, but this discretion is limited. A court cannot set aside an ex parte order simply because the defendant has shown that he or she made a mistake. The defendant must also show good and sufficient reasons for the mistake.

ORDER :- This application in revision by the defendant is directed against an order dated 6th March, 1980, refusing to set aside an ex parte order passed on 21-12-1979 and granting permission to the petitioner to file his written statement.

2. The first hearing of Special Suit No. 166/79 was fixed for 7-12-1979. On that day the plaintiff through his advocate and the defendant in person were present. At the request of the defendant the case was fixed for written statement on 21-12-1979 at 1.30 p.m. On that day the defendant being found absent the Court passed an order to proceed with the suit ex parte and adjourned the case to 10-1-1980. On the aforesaid date a petition was presented for setting aside the ex parte Order, dated 21-12-1979 and to allow the defendant to submit his written statement. The aforesaid petition was signed by Mr. Aristeu Furtado. In the petition it was stated that Advocate Santosh Timblo who represented the defendant on 7-12-1979 inadvertently noted the date as 22-12-1979. On 22nd the petitioner was requested by the said advocate through Timblo to file the written statement. On inquiry it was learnt that the Judge was then working at Ponda Court and that all the cases fixed for 22nd were postponed to be taken up on 4-1-1980. On 4-1-1980 on inquiry it was learnt that the case was actually fixed on 21-12-1979 and as the petitioner was not represented the ex parte order was passed. On account of wrong noting of the date the written statement could not be filed on the date fixed. Irreparable damage and loss would be caused to the petitioner if he was not allowed to file his written statement which was actually prepared and got verified on 18-12-1979.

3. In the counter filed in opposition to the above petition, it was stated that the advocate (evidently meaning Mr. Santosh Timblo) who was appearing for the defendant took correctly the date of the hearing as some other dates were not convenient to him and therefore 21-12-1979 which was convenient to him was the date which was given by the Court to file the written statement. The learned trial Court found that there was no reference to the presence of advocate Mr. Santosh Timblo in the Roznama and no vakalatnama had also been filed by him. The only vakalatnama filed was dated 10-1-1980 and that too in favour of some other lawyer. The case was adjourned at the request of the defendant. The question of Mr.Santosh Timblo having noted wrongly the date did not serve the since purpose the defendant being present in person asked for an adjournment to file his written statement and thus he was informed of the said date. Assuming that Mr. Timblo appeared for the defendant on 7-12-1979, his presence was of no consequence because he was not representing the defendant on that date. No materials were placed how the defendant came to know that the case was fixed on 4-1-1980. Thus having come to the conclusion that the defendant had been negligent and not able to make out a case for setting aside the ex parte order, passed the impugned order.

4. Mr. DCosta, learned advocate for the petitioner, has raised two contentions : First, the learned lower Court should have accepted that the non-appearance of the defendant on 21-12-1979 was on account of a bona fide mistake on the part of his lawyer, Shri Timblo in taking down the date of the case; and secondly, assuming that the petitioner failed to make out a case for setting aside the ex parte order, dated 21-12-1979, the Court should have exercised its discretion permitting the petitioner to file his written statement which in fact had been filed along with the petition dated 10-1-1980.

5. Whether Shri Timblo had filed power for the petitioner or not (which was admittedly not filed), the fact remains that he was present in Court on 7-11-1979 when the case was adjourned to 21-12-1979 (vide paragraph two of the affidavit-counter filed by the respondent in opposition to the application, D/- 10-1-1980 filed by the petitioner) to w