JUDGMENT Anima Hazarika, J. 1. The legality and validity of the order dated 2.4.2007 passed in a petition being No. 138 of 2006 filed by the Petitioner, who is the Defendant in Title Suit No. 736 of 2006 in the file of the learned Civil Judge (Jr. Divn.) No. 3, Kamrup, seeking to allow him to file written statement and objection by vacating the ex-parte order dated 21.12.2006 passed in Title Suit, whereby the learned trial Court vacated the ex-parte order dated 21.12.2006 allowing to contest the suit, accepting the petition as under Order 9, Rule 7 of the Code of Civil Procedure (for short 'Code'), however, debarring him from filing written statement holding that the time prescribed to file written statement under Order 8, Rule1 of the Code has already expired is under challenge in the instant revision petition filed invoking power under Article 227 of the Constitution of India 2. Heard Mr. B. Banerjee, learned Counsel appearing for the Petitioner. Also heard Mr. N. Dhar, learned Counsel appearing for the Respondent. 3. The facts in a nutshell is summarized hereunder, The opposite party herein as Plaintiff brought a suit in the Court of Civil Judge (Jr. Divn.), Kamrup, being Title Suit No. 736 of 2006 against the Defendant (Petitioner herein) seeking a decree for possessory right, title and interest and confirmation of his possession on the land described in Schedule 2 of the plaint, and for permanent injunction. Along with the plaint, an application was filed seeking temporary injunction being registered as Misc (J) Case No. 388 of 2006. 4. Admittedly, the summons were served upon the Defendant on 8.11.2006 and accordingly, the Defendant appeared on 28.11.2006 through his authorized counsel and sought time to file written statement which was allowed fixing 21.12.2006. But on 21.12.2006, the Defendant was absent without any steps and accordingly, the learned trial Court passed an ex-parte order against the Defendant fixing 22.1.2007 for ex-parte evidence. 5. Thereafter counsel appearing for the Defendant has filed an application on 22.1.2007 as fixed for ex-parte evidence to vacate the ex-parte order and allow the Defendant to file written statement and objection on the next date fixed. The said application was registered as petition No. 138 of 2007. 5. Thereafter counsel appearing for the Defendant has filed an application on 22.1.2007 as fixed for ex-parte evidence to vacate the ex-parte order and allow the Defendant to file written statement and objection on the next date fixed. The said application was registered as petition No. 138 of 2007. The counsel representing the Plaintiff filed a petition being No. 139/07 praying for adjournment, which was allowed and after hearing the parties the case was fixed on 15.2.2007 for filing objection on Petition No. 138/07 and for objection hearing. 6. On 15.2.2007, when the case was fixed for objection hearing on Petition No. 138 of 2007, the learned Counsel appearing for the Plaintiff sought time to file written objection and the prayer was allowed for the ends of justice fixing 2.3.2007 for filing objection and on the very day another set of counsel entered appearance on behalf of the Defendant. The learned Court fixed the date on 23.3.2007 for hearing since the Plaintiff had filed written objection. The objection was heard on 23.3.2007 and the Court fixed 2.4.2007 for order on Petition No. 138 of 2007 and the Court passed the order dated 2.4.2007 in Title Suit No. 736 of 2006 which is under challenge in this petition as indicated hereinabove. 7. Criticising the order of the learned trial Court, Mr. B. Banerjee, counsel appearing for the Petitioner has drawn the attention of the Court to the order dated 2.4.2007 which according to him are in two folds. The first part relates to assumption of power by the learned trial Court while adjudicating the petition No. 138 of 2007 holding that the petition was under Order 9, Rule 7 of the Code, which the learned trial Court has exercised a jurisdiction not vested in it by law. The other part relates to expiry of time for filing written statement as envisaged under Order 8, Rule 1 of the Code to which Mr. Banerjee has urged that the learned trial Court has failed to exercise a jurisdiction vested in it by law and therefore, requires interference under Article 227 of the Constitution of India 8. Mr. The other part relates to expiry of time for filing written statement as envisaged under Order 8, Rule 1 of the Code to which Mr. Banerjee has urged that the learned trial Court has failed to exercise a jurisdiction vested in it by law and therefore, requires interference under Article 227 of the Constitution of India 8. Mr. Banerjee, counsel appearing for the Petitioner has drawn the attention of the provisions of Order 9, Rule 7 of the Code along with the order dated 2.4.2007 impugned in the petition which would show that the learned trial Court has set side the order of ex-parte which has the effect of denying him to relegate to the position that he occupied at the commencement of the trial but it does not debar him from participating in the later proceedings of the suit meaning thereby as if the Petition No. 138 of 2007 was filed under Order 9, Rule 7 of the Code ' which is not the case in hand and according to him, the assumption of power under Order 9 Rule 7 by the learned trial Court is illegal on the face of the order dated 2.4.2007. 9. Mr. Banerjee has further urged that admittedly summon was served on 8.11.2006 and he has entered appearance through his authorized counsel on 28.11.2006 and sought time to file written statement which was allowed fixing 21.12.2006. On 21.12.2006, the counsel has neither put up his appearance nor filed written statement and the Court passed an order for ex-parte evidence fixing 22.1.2007, on which date, the counsel appeared and filed an application being Petition No. 138 of 2007 and the time of filing of written statement was within 90 days on 22.1.2007 and therefore, the Court would have shown a liberal approach in construing Order 8, Rule 1 of the Code and ought not to have taken a stringent view of the Defendant's absence. 10. Mr. 10. Mr. Banerjee has further drawn the attention of the Court to the order dated 2.4.2007 passed in Misc (J) Case No. 388 of 2006 whereby and whereunder the learned trial Court allowed the Petitioner to submit written objections for the ends of justice by vacating the ex-parte order dated 21.12.2006, whereas the same discretionary power has been negatived in case of Defendant which contradicts the other order dated 2.4.2007 and for the ends of justice, the Petitioner may be given an opportunity to file written statement. 11. In support of his contentions, Mr. Banerjee has referred the following decisions viz.; (1) (2005) 6 SCC 344 : Salem Advocate Bar Association, Tamil Nadu v. Union of India (2) AIR 2009 SC 514 : Secretary, Department of Horticulture, Chandigarh and Anr. v. Raghu Raj Referring to the decision of Salem Advocate Bar Association (supra), the learned Counsel wants to impress upon the Court that Order 8, Rule 1 of the Code is directory and in case of this nature the trial Court is empowered to permit filing of written statement beyond upper limit of 90 days, more so, when in the Misc (J) Case No. 388 of 2006 filed along with the suit has permitted to file objections for the ends of justice. The other case, i.e. Raghu Raj (supra) relates to non-appearance of authorized Advocate and its consequences, wherein, the Apex Court has held that normally, a party should not suffer on account of default or nonappearance of the Advocate and he therefore urged that for the ends of justice an opportunity be given to the Petitioner to file written statement. 12. Supporting the order dated 2.4.2007 passed in Title Suit No. 736 of 2006, Mr. N. Dhar, Advocate appearing for the opposite party has drawn the attention of the Court to the entire order sheet passed in the Title Suit, more particularly, the order dated 21.12.2006 wherein the trial Court passed the order to proceed ex-parte against the Defendant since there was no option left behind for the court to pass different order and the Court has rightly passed the order invoking power under Order 9, Rule 7 of the Code. 13. Mr. Dhar has further urged that the Petitioner has challenged the order impugned under Article227 of the Constitution of India. The discretionary power is required to be exercised sparingly and in deserving cases. 13. Mr. Dhar has further urged that the Petitioner has challenged the order impugned under Article227 of the Constitution of India. The discretionary power is required to be exercised sparingly and in deserving cases. In the instant case, Petitioner does not deserve any consideration, inasmuch as, petition No. 138 of 2006 was not supported either by verification or by affidavit and hence, urged that no interference is called for. In support of his contentions, he has cited the following decisions viz. : (1) AIR 2007 SC 1574 Aditya Hotels (P) Ltd. v. Bombay Swadeshi Stores Ltd. and Ors. (2) AIR 2007 Gau 139 Baliram Prasad Gupta v. Md. Isa At para 7 of Aditya Hotels (P) Ltd. (supra), the Hon'ble Supreme Court has held thus : 7. The parameters for extending the time granted by Order VIII, Rule 1 of the Code have been delineated by this Court in several cases. In Kailash v. Nanhku and Ors. (2005) 4 SCC 480 it was noted as follows : 42. Ordinarily, the time schedule prescribed by Order 8, Rule 1has to be honoured. The Defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the Defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the Defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the Defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 44. 44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. In no case, shall the Defendant be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the Defendant or his counsel. The Court may impose costs for dual purpose : (i) to deter the Defendant from seeking any extension of time just for the asking, and (ii) to compensate the Plaintiff for the delay and inconvenience caused to him. In Baliram Prasad Gupta (supra), this Court held that acceptance of written statement filed beyond the period of 90 days is permissible only in rare cases and special circumstances. Relevant paragraphs 22 and 23 are quoted hereunder : 22. Notwithstanding the fact that the Petitioner cannot, now, as held above, agitate that his written statement ought to have been accepted by the learned trial Court, I have chosen to consider this grievance of the Petitioner on merit. While considering this aspect of the case, I must point out that Order 7, Rule 1 as well as Order 8, Rule 10 of the Code, which warrant filing of written statement within a period of 90 days from the date of service of summons on the Defendant, are part of the procedural law. The procedural law is handmaid of justice and cannot override the necessity to do justice between the parties to the suit. No part of the procedural law and not even Order 8, Rule 1 or Order 8, Rule 10 can, in the absence of any explicit legislative intendment, be treated to have disempowered the Court or can be said to stand in the way of the Court to make exception in an appropriate case and accept a written statement beyond the period of 90 days, though, ordinarily and except in rare and compelling circumstances, acceptance of written statement beyond the requisite period of 90 days is not permissible. What crystallizes from the above discussion is that while it is necessary that a Defendant is made to file written statement within, at best, the extended time of 90 days from the date of service of summons, the Courts do have the power, in an appropriate case, to accept the written statement beyond the period of 90 days, though such acceptance is not possible except in rare cases and special circumstance. (See Sreenivas Basudev v. Vineet Kumar Kothari, reported in (2006) 3 GLR 230 : AIR 2007 Gau 5 . See also Smt. Rani Kusum v. Smt Kanchan Devi (2005) 5 SCC 705 : AIR 2005 SC 3304 , Kailash v. Nanku (2005) 4 SCC 480 : AIR 2005 SC 2441 and Salem Advocate Bar Association, T. N. v. U.O.I. (2005) 6 SCC 344 : AIR 2005 SC 3353 . 23. Bearing in mind the position of law, as indicated above, that in rare and special circumstances, Court can accept a written statement beyond the prescribed period of 90 days, when I come to the various orders passed in the suit, I notice that according to the order, dated 16.2.2002 (which is not under challenge), summons stood served on the Defendant. The Defendant, however, appeared in the suit and sought for time on 13.3.2002 and based on this prayer, the Defendant was granted time till 26.3.2002 for filing of written statement. As the Defendant, again, sought for time to file written statement, the Court allowed him time till 4.4.2002. However, on 4.4.2002, the Defendant remained absent and the suit was fixed on 18.4.2002. On 18.4.2002, the Defendant, once again, sought for time and the Court granted him time upto 4.5.2002; but on 4.5.2002, the Defendant, once again, remained absent and no steps was taken on his behalf. Even on the next date, i.e., 24.5.2002, the Defendant remained absent and the suit was fixed on 14.6.2002. On 14.6.2002, the Defendant sought for, as usual, further time to file his written statement and the Court allowed him time till 5.7.2002. On 5.7.2002, as his conduct had been in the past, the Defendant remained absent. Even on the next date, that is, on 2.8.2002, the Defendant remained absent and the suit was fixed for necessary order on 31.8.2002. However, on 31.8.2002, though the Defendant was present, the written statement was not filed by him. On 5.7.2002, as his conduct had been in the past, the Defendant remained absent. Even on the next date, that is, on 2.8.2002, the Defendant remained absent and the suit was fixed for necessary order on 31.8.2002. However, on 31.8.2002, though the Defendant was present, the written statement was not filed by him. In fact, on 31.8.2002, no petition was filed seeking time for filing of written statement. Finally, on 7.9.2002, the Court directed the Defendant to file his written statement within 30 days and fixed 11.10.2002 for filing of written statement. Surprisingly, however, the Defendant made, even on 11.10.2002, yet another application seeking time and the Court granted him time till 16.11.2002, as a last chance, for filing of written statement. On the date so fixed, i.e., 16.11.2002, when the Defendant filed a petition stating that the written statement could not be prepared and sought for time, the Court rejected the Defendant's petition and fixed the suit for hearing on 6.12.2002. When the suit was so pending for hearing, the Defendant, once again, filed a petition, on 21.11.2002, praying for time to file his written statement. This petition was rejected and the Court fixed the suit for Plaintiffs hearing on 24.1.2003 and it was on 14.2.2003 that the Defendant, eventually, filed his written statement. Thus, the manner in which the Defendant conducted himself in the suit, it clearly transpires that he had neglected to file the written statement and it was in compelling circumstances that the learned trial Court decided to proceed with the hearing of the suit. In the face of the facts as indicated hereinbefore, the rejection of the Petitioner's prayer for accepting his written statement cannot be said to be illegal or improper. By referring to the aforesaid decisions, Mr. Dhar tried to impress upon the Court that Order 8, Rule 1of the Code do not empower the Court to grant time merely by asking, more so, when the period of 90 days is expired and therefore, urged that the order dated 2.4.2007 does not require to be interfered with in the facts and circumstances. 14. Considered the submissions made by the parties. Perused the entire case records. Admittedly, the summons were served on 8.11.2006 fixing 28.11.2006 for filing written statement. 14. Considered the submissions made by the parties. Perused the entire case records. Admittedly, the summons were served on 8.11.2006 fixing 28.11.2006 for filing written statement. The Petitioner on receipt of the summons has engaged his authorized advocate who has entered appearance on 28.11.2006 seeking time to file written statement which was allowed fixing 21.12.2006. On 21.12.2006, the Defendant did not take steps and accordingly, the learned trial Court passed an order to proceed ex-parte against the Defendant fixing 22.1.2007 for ex-parte evidence. On 22.1.2007, an application was filed on behalf of the Defendant being Petition No. 138 of 2007, praying therein to vacate the ex-parte order by allowing him to file the written statement and objections. The said petition was heard on 23.3.2006 after filing objections by the Plaintiff and the order was passed on 2.4.2007, which is impugned in this petition. 15. A bare reading of the order dated 2.4.2007 would show that the learned trial Court has accepted the petition as a petition under Order 9, Rule 7 read with Section 151 of the Code and vacated the ex-parte order dated 21.12.2006 allowing him to participate in the suit but debarred him to file written statement though the upper limit of 90 days for filing written statement was not expired on 21.12.2006 as provided under Order 8, Rule 1 of the Code. The provisions of Order 8, Rule 1 are directory as has been held in Salem Advocate's case (supra). Moreover, the assumption of power under Order 9, Rule 7 read with Section 151 of the Code by the trial Court would show that the trial Court has taken a stringent view of the Defendant's absence allowing him to take part in the suit at a later stage denying him to file written statement though the upper limit of 90 days was not expired when the Defendant had filed the application for vacating the ex-parte order, which in fact, was vacated, however, denied him to file written statement which according to the Court is not for the ends of justice. 16. The Court has further noticed that the learned trial Court has passed two orders on 2.4.2007, one in Petition No. 138/2007 arising out of Title Suit No. 736/2006 and the other in Misc. (J) Case No. 388/2006 arising out of Petition No. 138/2007. The relevant portion of the order passed in Misc. 16. The Court has further noticed that the learned trial Court has passed two orders on 2.4.2007, one in Petition No. 138/2007 arising out of Title Suit No. 736/2006 and the other in Misc. (J) Case No. 388/2006 arising out of Petition No. 138/2007. The relevant portion of the order passed in Misc. (J) Case No. 388/2006 is quoted hereunder- ...Considering all aspects, I am of the opinion that the O. P. may be given one more opportunity to submit written objections for the ends of justice. The ex-parte order dated 21.12.2006 is vacated and the O. P. is allowed to contest the case by filing written objections. The order dated 2.4.2007 would show that the trial Court was liberal while passing order in Misc. (J) Case No. 388/2006, whereas the trial Court was stringent while passing the order dated 2.4.2007 in Title Suit No. 736 of 2006. 17. Another aspect of the matter which requires consideration in the case is that the suit was filed for a decree of possessory right, title and interest and confirmation of possession over Schedule 2 land as described in the plaint. In order to adjudicate the matter the Petitioner may be given an opportunity to file written statement on the next date fixed or else grave injustice would be caused if an opportunity is not given to the Petitioner. 18. I have perused the decisions cited by the learned Counsel appearing for the parties. The decisions in Salem Advocate (supra) and Raghu Raj (supra) cited by Mr. Banerjee support the contention made by him, whereas the decision in M/s Aditya Hotels (P) Ltd. (supra) cited by Mr. Dhar relates to delay in filing the written statement and the condonation thereof which is not the case in hand. The other decision in Baliram Prasad Gupta (supra) cited by Mr. Dhar would show that the learned trial Court has given time one after another starting from 16.2.2002 till 21.11.2002 whereof the prayer for time to file written statement was rejected fixing the Plaintiffs evidence on 21.1.2003 and it was on 14.2.2003 the Defendant eventually filed written statement which was rejected by the Court. Therefore, the decisions cited on behalf of the opposite party have no bearing in the facts and circumstances of the case. 19. Therefore, the decisions cited on behalf of the opposite party have no bearing in the facts and circumstances of the case. 19. Considering the matter in its entirety, this Court is inclined to accept the revision petition by setting aside the impugned order dated 2.4.2007 so far as rejection of the prayer of the Petitioner to submit written statement is concerned. The Petitioner is given an opportunity to submit the written statement with a cost of Rs. 3,000/- (Rupees three thousand) only to be paid to the Plaintiff/ opposite party for his inconvenience caused due to default on the part of the Petitioner which shall be paid along with the written statement as aforesaid or else injustice would be caused to the Petitioner and thus, the order is passed for the ends of justice. 20. In the result, the Revision Petition is allowed setting aside the order dated 2.4.2007 passed in the Petition No. 138 of 2007 relating to Title Suit No. 736 of 2006 to the extent as indicated hereinabove allowing the Petitioner to file the written statement on or before 14.8.2009 alongwith costs of Rs. 3,000/- (Rupees three thousand) only payable to the Plaintiff/opposite party. It is further made clear that no further extension of time would be allowed for filing written statement and on submission of the written statement, the learned trial Court would proceed further in accordance with law. 21. Registry is directed to send down the records immediately. Petition allowed