RFA 5/2004 BEFORE HON’BLE THE CHIEF JUSTICE (ACTING) MR. A.K. GOEL HON’BLE MR. JUSTICE T. VAIPHEI This appeal has been preferred against decree granted by the Trial Court for pay ment of Rs. 51,20,250/- with interest etc. The respondent-plaintiff is an approved Contractor under the appellant- defendant N.F. Railway. He took different contracts and executed the same. Dispu te arose out of claims for payment which led the plaintiff to file suit for reco very. Inspite of service and appearance before the Court, the appellant defend ant failed to file written statement inspite of several opportunities. Finally, the appellant sought to file a written statement by seeking extension of time wh ich was not allowed on the ground that having failed to avail of several opportu nities and after expiry of period stipulated under the proviso to Order VIII Rul e 1 CPC, there was no reason for giving further opportunity and accepting the wr itten statement. We have heard learned Counsel for the parties. Learned Counsel for the appellant submits that the Trial Court should not have r ejected the prayer to accept the written statement filed by the appellant. The p rovision of Order VIII Rule 1 is not mandatory, being a procedural provision and even beyond 90 days, time could be extended. The Trial Court wrongly felt that it had no power to extend time beyond 90 days. Learned counsel for the respondent-plaintiff fairly states that the provision of Order VIII Rule 1 could not have been treated to be mandatory in view of law la id down by the Hon’ble Supreme Court in Salem Advocate Bar Association, T.N. ver sus Union of India, (2005) 6 SCC 344 and R.N. Jadi & Brothers and others versus Subhashchandra, (2007) 6 SCC 420. However, the plaintiff was entitled to be comp ensated by costs if further opportunity was to be granted to the defendant appel lant. On due consideration of rival submissions, we are of the view that the appellant is entitled to an opportunity to file written statement by compensating the pla intiff by costs. This necessitates setting aside of the decree and remand for fr esh trial. The relevant discussion in the impugned order is quoted as hereunder:- Rules 1 of Order 8 expressly provides that if the defendant fails to file writt en statement within the period of thirty days the defendant may be allowed furth er time not exceeding ninety days from the date of service of summons to file wr itten statement and Rule 10 of Order 8 lays down next phase of the procedure. Ex press provisions is thus made that in the event of failure of the defendant to p resent the written within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him or make such order in rel ation to the suit, that is to say, either pronounce judgment at once or hear the suit ex-perte, as provided under Order 8 Rule 10; so there is no scope to resor t to Section 151. In a case law reported in AIR 1970 at page 998, Para 4 it has been held: ’Under the inherent power of Courts recognized by Section 151 CPC, a Cou rt has no power to do that which is prohibited by the Code. Inherent jurisdictio n of the Court must be exercised subject to the rule that if the code does not c ontain specific provision which would meet the necessities of the case, such pro vision should be followed and inherent jurisdiction should not be invoked. In ot her words the Court cannot make case of the special provision of section 151 of the Code where a party had his remedy provided elsewhere in the Code and he negl ected to avail himself of the same. Further the power under section 151 of the C ode cannot be exercise as an appellant power.’ The object and reason for bringing the amendment in the Act of 1999 and 2002 in relation to Order 8 Rule 1 is that as the maximum time is consumed in filing wri tten statement which causes delay in disposal of cases. Undoubtedly, the Legisla ture had been aware of the delay caused and wanted to enact a meaningful provisi on to curb the same. Hence, giving any other interpretation would render the sai d provision nugatory. Basis rule of interpretation requires that legislative in tent must be assessed in its proper perspective and from the words used in the s tatute and considering the context in which the provision has been enacted (vide Chandra Prakash Tiwari versus Shakuntala Shukla, AIR 2002 SC 2322) (as appeare d in case law reported in AIR 2003 Rajasthan 74). Smti. Baruah also submitted that after receipt of the summons the defendant by m aking their appearance filed a petition on 20/11/2002 for referring the parties to arbitration and the said petition was disposed of on 29/3/2003 and thereafter the defendants were directed to file written statement giving only one opportun ity. The record reveals that the defendants made their first appearance on 27/8/ 2002 and they sought time on two occasions to file written statement. Than on 20 /11/2002, they filed a petition for referring the parties to arbitration. The pl ea of referring the parties could have been taken in the written statement also and thereby they could have saved the prescribed period as the provision of Orde r 8 Rule 1 is made right by the new amendment, which made it incumbent upon the defendant to file written statement within ninety days from the date of service of summons. That apart, the petition No. 996/03 is not supported by any affidavi t as required by Order 6 Rule 15(4), CPC as amended by Act 46 of 1999. In view of the foregoing discussions, I am constrained to hold that writ ten statement submitted by the defendant later than ninety days from the date of service of summons on them cannot be accepted. Accordingly the written statemen t of the defendants is not accepted. In view of the law laid down by the Hon’ble Supreme Court in Salem Advoc ate Bar Association and R.N. Jadi & Brothers, supra the view taken by the Trial Court in declining to consider the written statement of the appellant cannot be sustained. Accordingly, the appeal is allowed, the impugned decree is set aside and the mat ter is remanded to the Trial Court for a fresh decision in accordance with law. The Trial Court will accept the written statement and proceed in the matter from the stage after the filing of the written statement. The amount paid to the pla intiff under interim order of this Court will continue to be with him and abide by such order as may be passed in the suit. The appellant would pay a sum of Rs. 25,000/- towards costs to the respondent. The parties may appear before the learned Trial Court for further proceedings on 27/1/2012. Since the suit is pending from 2002, the same may be expeditiously d isposed of and if possible within six months from the date of receipt of a copy of this order.