RFA 24/2005 BEFORE THE HON’BLE MR JUSTICE U.B. SAHA The instant first appeal is filed by the plaintiff appellant challenging the jud gment dated 7.9.2004 passed by the learned Civil Judge (Senior Division No.1), C acher, Silchar in TS No. 145 of 2003 whereby and whereunder, the learned Civil J udge dismissed the said suit ex-parte without costs. Heard Mr. N. Choudhury, learned Counsel for the plaintiff appellant as w ell as Mrs B. Das, learned CGSC appearing for the respondents Union of India. The brief facts needed to be discussed are as follows: The predecessor of the plaintiff appellant entered into an agreement wit h the defendant respondents vide CA No CE (P) PSK-14/1996-97 for construction of PMT bridge over river Ghagra-Silchar-Badarpur Road on NH-53. While the work in progress, the respondent authorities recorded the progress of the work in the me asurement book and on being satisfied with the progress of the work paid running bills upto 19th RAR as per benefit of the work received by the respondents auth orities from the predecessor of the plaintiff appellant. Thereafter, final bill was prepared by the respondents authorities, but without making the entire payme nt, an amount of Rs.7,62,159/- was paid to the predecessor of the plaintiff app ellant who drew the same on protest. Being aggrieved by the action of the respondents authorities, the plaint iff appellant preferred a suit for passing a money decree of Rs.7,62,959/-. On receipt of the plaint, the learned Trial Court registered the same as TS No 145 of 2003 as stated supra. The plaintiff appellant also submitted his evidence by way of affidavit. The defendants respondents though filed written st atement after ninety days as prescribed in the CPC; it was not accepted by the t rial Court. The trial Court proceeded with the suit ex-parte only on the basis o f the evidence produced by the plaintiff appellant side by affidavit. Ultimately , the learned trial Court rejected the case of the plaintiff appellant with a li berty to prefer appeal before the competent court. Mr. Choudhury, learned Counsel for the appellant in his usual fairness s ubmits that the learned trial Court committed an error while rejecting the plain t of the plaintiff appellant as the learned trial Court did not ask the plaintif f appellant to rectify the plaint by way of mentioning the specific amount menti oned in the final bill. Learned Counsel further submits that it is settled position of law that when a plaint appears to be defective one, the Court is to return the same to th e plaintiff for correcting the defect and submitting the same before the appropr iate Court. He again contended that even when in the prayer there are some error s committed by the plaintiff by way of non-specifying the prayer, then also the Court has the power to mould the relief as per Or.7 Rule 7 of the CPC. Mrs. Das, learned CGSC for the respondents Union of India would contend that the Court below has committed error by not accepting the written statement of the defendants respondents after ninety days. According to her, the Apex Cour t in various decisions held that a written statement can be accepted by a Court even after ninety days, if the defendant can explain the reasons for non-filing the same within the statutory period. This Court has gone through the impugned judgment. According to this Cou rt, the learned trial Court decided the matter without applying its mind and thu s came to a wrong finding. The trial Court should provide the opportunity to th e parties to lead their evidence. It is also settled by this time that when the defendants entered appeara nce, the case cannot be proceeded ex-parte. The defendants are entitled to cross -examine the plaintiff’s witnesses. As this Court has already held that the learned trial Court committed wr ong while deciding the suit, even on exparte, it would be proper for this Court to remit the suit before the Civil Judge after setting aside the impugned judgme nt. Accordingly, the impugned judgment dated 7.9.2004 passed by the learned Civil Judge (Senior Division No.1), Cacher, Silchar in TS No. 145 of 2003 is her eby set aside and the matter is remitted back to the trial Court for deciding th e suit after providing opportunity to the parties for leading their evidences an d pass necessary order in accordance with law. In the result, the appeal is allowed. No order as to costs.