ORDER 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. 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 does not satisfy the Court, the Court, 'may 'extend the time". (b) The satisfaction of the Court on the grounds stated in Clauses (a), (b) and (c) of O.9, R. 5 (1) has to be achieved within the period of three months and not afterwards. If he does not satisfy the Court, the Court, 'may 'extend the time". (b) The satisfaction of the Court on the grounds stated in Clauses (a), (b) and (c) of O.9, R. 5 (1) has to be achieved within the period of three months and not afterwards. If there is a failure of the plaintiff to apply for a fresh summons and to satisfy the Court within such period of three months to condone such failure on the grounds stated in (a), (b) and (C) of O.9 R. 5 (1), then the consequence is that the Court shall make an order that the suit be dismissed as against the unserved defendant. In other words, the plaintiff must not allow the period of three months from the date of the return of the unsuccessful service to expire without making first an application and also secondly, without satisfying the Court within that period of time on the grounds stated in (a), (b) and (c) of O. 9, R. 5 (1) and if he does not do so, then he incurs the penalty of dismissal there under." "(e) A Summons can always be waived by the parties concerned. But waiver is an intentional relinquishment of a known, right. If the right is not known then a person cannot be said to waive it. Where the defendants could not know, and it would not be possible that they would know, without making an appearance and searching the records of the case and apprising themselves of the facts. that the order for fresh summons was-neither applied for nor obtained within three months of the date of the return of the unsuccessful service, the defendants could not by entering appearance, be said to have disabled themselves from saying that the suit be dismissed under O. 9, R. 5". 8. In order to appreciate the controversy on the point, it appears necessary to examine the scheme of Order 9 CPC. So far as it is material for the present purposes. Rule 1 prescribes that on the date fixed in the summons for the defendant to appear and answer, parties shall be in attendance at the Court in person or by their respective pleaders and the suit shall then be heard unless the hearing is adjourned to a future date. So far as it is material for the present purposes. Rule 1 prescribes that on the date fixed in the summons for the defendant to appear and answer, parties shall be in attendance at the Court in person or by their respective pleaders and the suit shall then be heard unless the hearing is adjourned to a future date. Rule 1 provides that where on the day so fixed it is found that the summons has not been served on the defend ant, in consequence of the failure of the plaintiff to pay Court fee or postal charges, if any, chargable for such service, the Court may make an order that the suit may be dismissed, provided that no such order shall be made although the summons has not been served upon the defendant if the day fixed for him to answer, he attends in person or by agent, when he is allowed to appear by agent. Rule 3 provides that where neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed. Rule 4 lays down consequences of dismissal of suit under rule 2 or 3 thereof. Rule 5 of Order 9 CPC runs as under :- "5 Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons (1) Where, after a summons has been issued to the defendant, or to one of serveral defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the sat be dismissed as against such defendant, unless the plaintiff has Within the said period satisfied the Court that:- (a) he has failed after using his best endeavours to discover the residence of such defendant who has not been served or (b) such defendant is avoiding service of process, or (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such-period as it thinks fit. 2. 2. In such case the plaintiff may (subject to the law of limitation) bring a fresh suit." Rule 6 or O. 9 CPC prescribes procedure to govern the situation when only plaintiff appears. Rule 7 lays down the procedure regarding what should be done when the defendant appears on the day of adjourned hearing and assigns good cause for his previous appearance. Rule 8 provides for procedure where defendant only appears and rule 9 of Order 9 CPC deals with the effect of dismissal of the suit under rule 8 and provides for a procedure for restoration of the suit and consequences of dismissal of the application for restoration of the suit. 9. The analysis of the aforesaid provisions of Order 9 will disclose that rule 5 thereof applies to a situation where the defendant is not served and defaults are committed for a period of three months by the plaintiff in taking steps to get him served. It is not applicable to a situation where the defendant has put in his appearance. In order to accept such a contention, we will have to read into the rule after the words, "the suit shall be dismissed as against the defendant 'the following words," even on objection at the instance of defendant after his appearance in the case." Such a construction is not permissible on any established principles of interpretation of statutes. 10. Further more, in this case, the case had been adjourned from time to time by the Court, or by the Reader of the Court. So far as orders passed by the Reader of the Court are concerned, they cannot be regarded as judicial orders. So far as orders passed by the learned Small Cause Judge are concerned, they clearly indicate that the Court at oral request of the plaintiff had been extending time for submission of fresh process fees for issuance of summons to the defendant. As such the penal provision of Order 9. rule 5 CPC is not attracted to the situation. Vyas, J. has in Civil Revision No. 411 of 1976 Bholashanker v. Lekhraj, decide d on 14-2-1979 expressed himself on the point thus: "The trial Court, however. As such the penal provision of Order 9. rule 5 CPC is not attracted to the situation. Vyas, J. has in Civil Revision No. 411 of 1976 Bholashanker v. Lekhraj, decide d on 14-2-1979 expressed himself on the point thus: "The trial Court, however. granted time to the plaintiff for fresh summons being issued on payment of process fee not only on the aforesaid date but also on 22-3-1975, 22-7-1975 and 22-9-1975 with the result that on 1-10-1975 the plaintiff filed the necessary application for substituted service and supported it by an affidavit also. No doubt the record of proceeding In the trial Court do not show that on what ground time was sought by the plaintiff on what ground the trial Court gave a couple of opportunities to the plaintiff to get fresh summons issued to the defendant. However, when prayers were made by the plaintiff on the aforesaid dates and the Court continued to grant opportunities one after the dates to pay the process fee or summons being issued, the penal provisions of Order 9, rule 5 Civil Procedure Code could not be attracted." I am in respectful agreement with the principles underlying the aforesaid dictum. Thus in the instant case, the trial Court will be deemed to have extended time for payment of process fees and / or postal charges for service of the defendant. 11. For all the reasons stated above. I regret my inability to agree with the view taken in Shaw and Co's case (supra). 12. So also reliance on the ratio of 1977 (2) MPWN 288 (Punjab National Bank v. lnderjeet Singh and another) is not available to the non-applicant. firstly because in that case suit was dismissed although there was no default on the part of the plaintiff in applying for fresh summons for a period of three months; and secondly the converse of a dictum is not always true. 13. Before parting. I record thanks to Shri D .M. Shah, advocate, who appeared as amicus curiae and rendered valuable assistance in the case. 14. In view of the aforesaid discussion, the revision succeeds and the impugned order is set aside. The suit is ordered to be restored. The learned judge of the Small Cause Court will now try the suit in accordance with law. No order as to costs in view of the facts and circumstances of the case.