Mishra, J.-

This is a revision by the plaintiff-applicant against the judgment and decree dated 5-11-1976, dismissing his suit.

2. Facts essential for decision of this revision are as under:

The revision-applicant instituted on 11-8-72, a suit in the Court of II Civil Judge Class I, Indore, invested with powers of a Small Cause Judge under the M. P. Civil Courts Act, 1958, for recovery of Rs. 150 besides interest, in all Rs. 200 due under a pronote.

3. On 14-8-1972, the learned Small Cause Judge ordered the case to be put up on 12-10-1972. On 12-10-1972 issuance of summons in the name of defendant was ordered and 9-12-1972 was fixed as date for final disposal. On 9-12-1972, there was Court-holiday. On 23-12-1972, the case was taken up and adjourned by the Reader of the Court to 16-2-1973. Thereafter, the case went on adjourning to the following dates some times by the Court and some times by the Reader to 6-4-1973, 28-6-1973, 11-7-1973, 30-8-1973 (by reader), 7-11-1973, 8-1-1974, 11-3-1974, 26-11-1974, 18-6-1974, 17-8-1974, 7-10-1974, 30-11-1974 (by reader), 16-1-1975, 14-3-1975, 5-5-1975, 7-7-1975, 18-9-1975, 19-11-1975, 3-1-1976 and 24-2-1976 (by reader). On 24-2-1976, the Reader of the Court wrote the proceedings and directed issuance of summons to the defendent for 24-4-1976.

Ultimately, the defendant put in his appearance on 24-4-1976 along with his counsel and prayed for time to file written-statement. The Court passed an order to the effect that t he defendant should file his written statement by the next date of bearing and also fixed the case for evidence on 9-7-1976. On 9-7-1976, the plaintiff was absent, but the defendant submitted written statement and the suit was dismissed in default of appearance of the plaintiff and his counsel.

Thereafter on the application by the plaintiff for restoration of the suit (registered as M. J. C. No. 50 of 1976), restoration of the suit was ordered. When the suit was restored, the defendant pressed his plea taken by him in his written statement, viz, that on account of the non-compliance of the mandatory provision of Order 9 rule 5 CPC., the suit is liable to be dismissed. This objection has found favour with the learned Small Cause Judge and the suit has been dismissed. Hence this revision.

4. In this revision, Mr. K. P. Gupta, learned counsel for the applicant, contended that the dismissal of the suit under Order 9 rule 5 CPC, on the ground of earlier defaults in payment of P. F., after appearance of the defendant, is wholly illegal and unjust, as Order 9 rule 5 CPC does not apply to such a situation.

5. Mr. R. S. Chandrawade, learned counsel appearing on behalf of Nathulal, defendant-non-applicant argued in support of the impugned order and contended that the provisions of rule 5 of Order 9 CPC, being mandatory there is no case for interfering with the impugned order. Reliance is placed on the ratio of AIR 1954 Cal. 369 Shaw & Co. v. B. Shamaldas and Co. and 1977 (2) MPWN 288 Punjab National Bank v. Inderjeet Singh and another.

6. Having heard the learned counsel for the parties, I have come to the conclusion that the revision deserves to be allowed.

7. In AIR 1954 Cal. 369 Shaw & Co. v. B. Shamaldas & Co. It has been held that :

"(a) O 9, R. 5 provides a rule of limitation. Its command is that when the summons is returned unserved, plaintiff's failure to apply for a fresh summons within three months from the dale of such return of unsuccessful service will entail the penalty of dismissal of his suit. When that default occurs, the Court is left with no discretion but 'shall make an order that the Suit be dismissed. 'The limitation, therefore is three months. If within, those three months, the plaintiff applies for fresh sommons he has to satisfy the Court that either (a) he failed after using his best endeavour to discover the residence of the. defendant who has not been served, or (b) such defendant is avoiding service, or (c) any other sufficient cause for extension of time. If he