JUDGMENT - V.K. BARDE, J.:----Defendant No. 1 from Regular Civil Suit No. 1253 of 1988 filed in the Court of the Civil Judge, Senior Division, Aurangabad, has filed this Civil Revisional Application contending that the suit as against him ought to have been dismissed by the learned Civil Judge, by applying the provisions of Order IX, Rule 5, C.P.C. However, no such order is passed by the learned Civil Judge, and, therefore, this revision petition. 2. In the said suit, suit summonses were issued to both the defendants. Defendant No. 2 was served and he filed appearance. However, the summons sent for service on defendant No. 1 returned unserved on 17-7-1991 and thereafter the plaintiff failed to take any steps for service of summons on defendant No. 1 till 9-8-1991 and, therefore, the suit be dismissed. The learned Civil Judge, after obtaining say of the plaintiff on this application, passed the order on 16-6-1992 and directed the plaintiff to take special bailiff for service of summons on defendant No. 1 within fifteen days and he also directed to pay costs of Rs. 25/-. 3. It appears that thereafter, the plaintiff could not serve the summons on defendant No. 1 with the help of special bailiff. So, the plaintiffs filed application on 1-7-1992 requesting that defendant No. 1 be served by publishing the suit summons in the newspapers. On this application also, defendant No. 2 raised objection. However, by the order dated 18-7-1992, the learned Civil Judge directed that the summons be served on defendant No. 1 by publication in newspapers and also directed that the plaintiffs should pay cost of Rs. 50/- to defendant No. 2. 4. Summons was thereafter served on defendant No. 1 by publishing it in newspaper. Defendant No. 1 appeared and filed an application on 3-9-1992 requesting that time be granted to file written statement and he also reserved his right to file an application for dismissal of the suit, as per the provisions of Order IX, Rule, 5, C.P.C. 5. Thereafter, the present revision petition is filed challenging the order dated 18-7-1992. 6. The order dated 18-7-1992 is only giving permission to the plaintiff to serve the summons on defendant No. 1 by substituted service of publication in newspaper. Thereafter, the present revision petition is filed challenging the order dated 18-7-1992. 6. The order dated 18-7-1992 is only giving permission to the plaintiff to serve the summons on defendant No. 1 by substituted service of publication in newspaper. However, the learned Counsel of the petitioner, Shri Jethalia, argued that, when defendant No. 2 filed the application for dismissal of the suit as per Order IX, Rule 5, C.P.C., the Court ought to have dismissed the suit, because the plaintiff had failed to take steps within two months from the return of summons without service on defendant No. 1. That is the mandatory provisions for dismissal of the suit. Under these circumstances; and for this purpose, he has also relied upon the two rulings of the Calcutta High Court. The first is (Shaw Co. v. B. Shamaldas Co.)1, reported in A.I.R. 1954 Cal. 369, to which reference is made by the learned Civil Judge in his order dated 18-7-1992; and the second is (Electrical Industries Corporation v. Punjab National Bank and others)2, reported in A.I.R. 1979 Cal. 8. He has also relied upon the ruling of this Court (V.K. Barde, J.) in the matter of Civil Revision Application No. 958 of 1991, (Vishwanath Satwaji Gaikwad v. Laxman Abaji Kavale and others)3, decided on 29-1-2000 (yet unreported); and has strongly contended that the suit ought to have been dismissed by the learned Civil Judge, when no steps were taken by the plaintiff for service of summons on defendant No. 1 within two months from the date of return of summons without service. 7. He has also contended that he was not party to the suit when the orders dated 16-6-1992 and 18-7-1992 were passed. He also argued that it was not necessary for him to file any fresh application for dismissal of the suit as against him under the provisions of Order IX, Rule 5, C.P.C., because, already, such an application was filed and was considered by the Court, but not properly. He is affected by the failure on the part of the Court to exercise jurisdiction, which is vested in the Court, as per the provisions of Order IX, Rule 5, C.P.C.; and, therefore, he has now filed this revision petition for non-exercise of jurisdiction vested in the Court. 8. He is affected by the failure on the part of the Court to exercise jurisdiction, which is vested in the Court, as per the provisions of Order IX, Rule 5, C.P.C.; and, therefore, he has now filed this revision petition for non-exercise of jurisdiction vested in the Court. 8. The learned Counsel for respondent No. 1 original plaintiff Shri Deshpande, has argued that defendant No. 2 had made an application for dismissal of the suit by relying on the provisions of Order IX, Rule 5, C.P.C. However, the Court used its discretion and allowed the plaintiff to serve the summons on defendant No. 1 by taking the help of special bailiff. It was within the discretion of the Court to dismiss the suit or to give chance to the plaintiff; and the discretion was rightly used by the learned Civil Judge. He has also argued that Order IX, Rule 5, C.P.C., does not make it compulsory on the part of the plaintiff to make an application within the period of two months for extention of time of taking steps for service of summons on the defendant, which is not served. The Court may dismiss the suit at the expiry of the period of two months and if such dismissal has taken place, even thereafter, the plaintiff can make an application to the Court for extension of time. 9. Whenever any extension of time is to be sought, it must be sought before the expiry of that time. When the time has expired, there is no question of seeking extension of expired time. So, any application for extension of time for taking steps for service of summons on the defendant ought to be filed within two months. At the expiry of two months, if there is no such application, then the Court has to dismiss the suit. 10. Furthermore, such an extension of time can be sought only for the grounds mentioned in Clauses (a), (b) or (c) of Order IX, Rule 5(1), C.P.C. 11. Hence, it will be seen that the plaintiff had not filed any application for extension of time for service of summons on defendant No. 1 by giving any application within the period of two months. Hence, it will be seen that the plaintiff had not filed any application for extension of time for service of summons on defendant No. 1 by giving any application within the period of two months. Not only that, but even after the expiry of the period of two months and till the order dated 16-6-1992 was passed by the learned Civil Judge, there was no application stating any one of the reason mentioned in Clause (a), (b) or (c) of Rule 5(1) of Order IX, C.P.C., to make out a ground for extension of time. The order passed by the learned Civil Judge on 16-6-1992 does not indicate that the plaintiff has shown any reason as to why time be extended. The order, dated 16-6-1992, reads as follows : "Heard Mr. N.T. Patil, Advocate for defendant No. 2. The defendant No. 1 is yet to be served. The last bailiff's report is dated 17-7-1991. Thereafter, no steps taken by the plaintiff to secure the service of said summons upon the defendant No. 1. At this stage, Mr. Kulkarni Advocate appeared and submitted no report of bailiff is yet received. However, the plaintiff (filed) an application dated 28-1-1991 (sic : 92) at Ex. 40 (to) show that he had secured time to take steps but no steps are yet taken. Under the circumstances, I order that the plaintiff to take special bailiff and serve the suit summons upon the defendant No. 1, within 15 days, and to pay a cost of Rs. 25, to defendant No. 2 as the defendant has to appear either himself or through his Advocate." It means that the learned Advocate for the plaintiff took the stand that the report of the bailiff was not returned. However, that contention was falsified by showing that application, Exhibit 40, was made by the plaintiff on 28-1-1992 seeking time to take steps. So, the stand taken by the plaintiff on 16-6-1992 was not at all correct. The summons was returned with report of the bailiff that defendant No. 1 could not be served. It was returned on 17-7-1991. It may be said that the plaintiff filed an application on 28-1-1992 seeking time to take steps, but it appears that till 16-6-1992, no steps were taken by the plaintiff for service of summons on defendant No. 1. The summons was returned with report of the bailiff that defendant No. 1 could not be served. It was returned on 17-7-1991. It may be said that the plaintiff filed an application on 28-1-1992 seeking time to take steps, but it appears that till 16-6-1992, no steps were taken by the plaintiff for service of summons on defendant No. 1. It is thus very clear that not only the plaintiff failed to make an application within the period of two months from the return of summons without service, but he had also failed to show cause as to why time be extended. The provisions of Order IX, Rule 5(1), Clauses (a), (b) and (c), C.P.C., were not complied with by the plaintiff and, in such circumstances, the learned Civil Judge had no other go but to dismiss the suit as against defendant No. 1. 12. The learned Counsel for the respondent, Shri Deshpande, has argued that there is some difference in the rule, which is made applicable in the State of Maharashtra, because of the amendment effected on 30th September, 1996 than the original rule. He has contended that Rule 5(1), Order IX, C.P.C., in its application to the State of Maharashtra reads as follows : "Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of two months from the date of the return made to the Court by the Officer ordinarily certifying to the courts returns made by the serving Officers, to apply for the issue of a fresh summons, the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiffs satisfies the Court that .........." Shri Deshpande, therefore, contended that in this rule, the words "within the said period", appearing in the original rule, are deleted; and that means, the plaintiff can file application even after expiry of the said period. 13. However, this argument cannot be accepted. 13. However, this argument cannot be accepted. The wording, "the Court shall make an order that" the suit be dismissed as against such defendant" clearly indicates that, if the plaintiff has failed to takes steps within the period of two months, or, fails to file an application for extension of time within the period of two months, then it is mandatory on the part of the Court to dismiss the suit as against such defendant. The word "shall" is used in this Rule and that means, whatever steps the plaintiff has to take must be taken before the Court comes to the conclusion that the suit has to be dismissed as against such defendant because of the failure on the part of the plaintiff to comply with the provisions of Order IX, Rule 5, C.P.C. So, by deleting the words, "within the said period" no practical change is effected to indicate that the application can be filed even after the expiry of the period. If Rule 5(1) of Order IX, C.P.C. is read completely including Clauses (a), (b) and (c) thereof, it will be clear that the plaintiff has to take steps for service of the summons on the defendant within the period of two months, or, that he may apply for "extending the period of two months" within that period for the reasons, which are as per Clauses (a), (b) or (c). In the present matter, the plaintiff had not taken steps for service of summons on defendant No. 1 within the period of two months from the return of summons unserved, or, he had not filed any application showing the cause for extension of period and, therefore, the argument advanced by the learned Counsel for the respondent cannot be accepted. 14. The further order directing the plaintiff to take help of special bailiff for service of summons on defendant No. 1 was not called for, because there was no such reason to show indulgence by the Court. The provisions of Order IX, Rule 5, C.P.C., were not complied with. Similarly, there was no jurisdiction for the Court to pass the order on 18-7-1992 to publish the suit summons in newspaper for service on defendant No. 1. So, all these orders are without jurisdiction. 15. The provisions of Order IX, Rule 5, C.P.C., were not complied with. Similarly, there was no jurisdiction for the Court to pass the order on 18-7-1992 to publish the suit summons in newspaper for service on defendant No. 1. So, all these orders are without jurisdiction. 15. Here, it also has to be noted that, in case the suit is dismissed as against defendant No. 1, the suit continues as against the defendant No. 2 and the plaintiff has a remedy under sub-rule (2) of Rule 5, Order IX, C.P.C., to file a fresh suit as against defendant No. 1. Considering the nature of the suit, the plaintiff may have some other remedies also; but it is not necessary to spell out everything in this matter. Thus, only by stating that the order passed by the learned Civil Judge on 18-7-1992 was not within his jurisdiction; and while passing the order on 16-6-1992, he had not exercised jurisdiction vested in him, this revision petition has to be allowed. 16. The learned Counsel for respondent No. 1 also contended that even though defendant No. 1 has stated in his application dated 3-9-1992 that he was reserving his right to file an application before the trial Court for dismissal of the suit as per the provisions of Order IX, Rule 5, C.P.C., he never filed any such application before the trial Court. It is a fact that he had not filed such an application. But, here defendant No. 1, has come to the Court with the plea under section 115, C.P.C. that the jurisdiction which was vested in the Court for dismissal of the suit for non-compliance with the provisions of Order IX, Rule 5, C.P.C., was not exercised by the Court; and, therefore, the revision application is filed. It was, in fact, not necessary for defendant No. 1 to file any application as such for dismissal of the suit, as per the provisions of Order IX, Rule 5, C.P.C. From the wording of the said provisions, it is contemplated that it is the duty of the Court to pass an order as per Order IX, Rule 5, C.P.C. Further, the question is as to who should make such an application. For instance, if there is only one defendant, or, even if there are more than one defendants, and all of them are not served; and if the plaintiff makes no application to the Court for taking steps within the period of two months, then, who can make an application for dismissal of the suit. The Court has to see whether the provisions of Order IX, Rule 5 C.P.C. are complied with or not and the Court, on its own, has to pass the necessary order. The defendant, who is not before the Court, is not expected to make such application. So, even if there is no application by defendant No. 1 praying for relief under Order IX, Rule 5, C.P.C., the defendant No. 1 is not precluded from filing the revision petition contending that the Court had failed to exercise jurisdiction vested in the Court. 17. In such circumstances, this Civil Revision Application is allowed; and Rule is accordingly made absolute. In the circumstances, there will be no order as to costs. It is made clear that the suit will stand dismissed only as against defendant No. 1; and not as against defendant No. 2; and the suit may proceed as against defendant No. 2 as per law. Civil Revision Application allowed. -----