JUDGMENT : Ashim Kumar Banerjee, J. In 2000 the above suit was filed by the plaintiffs against as many as nine defendants. Soon after filing of the suit interlocutory applications were, made from time to time both by the plaintiffs as well as the defendant Nos. 1, 8 and 9. Those applications were hotly contested upto the Apex Court level. The plaintiffs were successful in obtaining interim order. The defendants were unsuccessful in getting the same modified and/or varied and/or vacated. The defendants were also unsuccessful in getting leave under clause 12 revoked. The plaintiff, however, did not take any steps for service of the writ of summons as well as praying for issuance of the writ of summons as upon the defendants. It came to the notice of the plaintiffs in 2006 when they took out the application being G.A. No. 512 of 2006, inter alia, Praying for extension of returnable date of writ of summons as well as praying for issuance of the writ of summons by the department with a corresponding leave to lodge the same with the Sheriff of Calcutta for service upon the defendants. The defendant Nos. 1 and 8 jointly and the defendant No. 9 made to applications being G.A. No. 523 of 2006 and G.A. No. 524 of 2006 respectively for dismissal of the suit under Order 9 Rule 5 of the Code of Civil Procedure, inter alia, on the ground that no step was taken by the plaintiff for service of the writ of summons on the defendants as required under Rule 9 of the Code of Civil Procedure. All the three application were heard by me and are disposed of by this common judgment and order. 2. Order 9 Rule 13 of the Code of Civil Procedure gives a mandate to the Court to dismiss a suit where no step is taken for service of the writ of summons within three months from the date of filing of the suit. It provides that after the summons have been issued to the defendant and returned unserved and plaintiff fails to take any step for service upon the defendant by applying for issue of fresh summons the Court "shall" make an order of dismissal of the suit unless the plaintiff gives sufficient explanation for not doing the same within stipulated period. This particular rule was interpreted by our Court in the earlier precedents. This particular rule was interpreted by our Court in the earlier precedents. Some of the precedents were relied upon by the learned counsel appearing for the parties which are as follows: (i) Volume 8, Indian Law, Reporters, Calcutta, Page 420 (Kedarnath Dutt v. Harra Chand Dutt) (ii) All India Reporter 1954, Calcutta, Page 369 (Shaw & Company v. B. Shamal Das & Co.) (iii) All India Reporter 1979, Calcutta, Page 8 (Electrical Industries Corporation v. Punjab National Bank & Ors.) (iv) Volume 61, Calcutta Weekly Notes, Page 212 (Laxmi Trading v. Shriram Gobindnarain) (v) Volume 91, Calcutta Weekly Notes, Page 391 (Fort Gloster Industries Limited & Anr. v. Tatanagat Transport Corporation & Anr.) (vi) 1985 (1) Calcutta High Court Notes, Page 375 (Tusnial Trading Company v. Himangshu Kumar Ray & Ors.) (vii) 1994, Volume - II, Calcutta High Court Notes, Page 1.61 (State Bank of India v. Tarit Appliances (P) Ltd. & Ors.) 3. On perusal of the aforesaid judgments it appears to me that when steps are not taken within the stipulated period the Court has no option but to dismiss the suit as elaborately explained by P.B. Mukherjee in, the case of Shawallace & Company (Supra). His Lordship considered this rule as well as the appropriate provisions of the High Court Rules and came to a conclusion that there had been no conflict with the High Court Rules and this rule and when the summons are returned unserved and the plaintiff fails to apply for fresh summons within three months this would entail penalty of dismissal of the suit and the Court is left with no discretion but to make an order of dismissal. However, if within those three months plaintiff applies for fresh summons he is to satisfy the Court with regard to the reason for delay meaning thereby if an application is made beyond three months the Court has no discretion even if sufficient explanation is given. 4. In the instant case explanation was given by the plaintiffs to the extent that the parties were diligently prosecuting the litigations at the interim stage. The defendant Nos. 1, 8 and 9 were all through out represented through advocates. The defendant No. 9 also filed vakalatnama through M/s. Anand Dasgupta and Sagar and informed the plaintiffs' Advocate accordingly. 4. In the instant case explanation was given by the plaintiffs to the extent that the parties were diligently prosecuting the litigations at the interim stage. The defendant Nos. 1, 8 and 9 were all through out represented through advocates. The defendant No. 9 also filed vakalatnama through M/s. Anand Dasgupta and Sagar and informed the plaintiffs' Advocate accordingly. The copy of such intimation was annexed to the pleadings and as such the plaintiffs were under the bona fide impression that the suit was being contested by the defendants appropriately. It was also contended on behalf of the plaintiffs that they entrusted the work to the plaintiffs' advocate who in turn relied upon his junior and clerk who left him subsequently and because of bona fide mistake on the part of Advocate on 'Record for the plaintiffs the summons could not be served upon the defendants. 5. On perusal of the facts it appears to me that no summon was even taken out at any point of time by the plaintiffs. 6. An attempt was made on behalf of the plaintiffs to come out of the mischief of Order 9 Rule 5. It was contended that Order 9 Rule 5 contemplated a situation where a summon was returned unserved whereas in the present case the summon was not issued at all, as such it could not come within the scope of the Order 9 Rule 5. Such submission, in my view, was totally misconceived as the situation was worse herein than what was contemplated in Order 9 Rule 5. 7. Reading the particular provision of the Code of Civil Procedure and the judgments cited by the parties except the decision in the case of Tusnial Trading Company (Supra). I am convinced that I do not have any discretion left with me to allow the plaintiffs to continue with the suit by taking steps for service upon the defendants. However, the Division Bench judgment in the case of Tusnial Trading Company (Supra) is binding upon me. In the said case in an identical situation the Division Bench observed that for the fault on the part of the plaintiffs advocate the suit could not be dismissed. In view of the said Division Bench judgment I allow the application of the plaintiff for extension of time of the returnable date of the writ of summons. 8. In the said case in an identical situation the Division Bench observed that for the fault on the part of the plaintiffs advocate the suit could not be dismissed. In view of the said Division Bench judgment I allow the application of the plaintiff for extension of time of the returnable date of the writ of summons. 8. Before I part with I wish to make it clear, that in any event the defendant No. 9 was not entitled to take this plea as the right, if any, to apply under Order 9 Rule 5 of the Code of Civil Procedure was waived by the defendant No. 9. The original vakalatnama as well as affidavit of competency filed by them were perused by me as produced by the department. Although at the top sheet the G.A. number of their application for modification was written (probably by the department) on perusal of the contents of both the said documents it is clear that such vakalatnama was intended to be filed in the suit and not in any pending application. Hence, even if the ratio decided in the case of Tusnial Trading Company (Supra) is not applied the application of defendant No. 9 is not liable to be sustained. 9. Following the decision of the Division Bench in the case of Tusnial Trading Company (Supra) I allow the application being G.A. No. 512 of 2006. There would be an order in terms of prayer (a), (b) and (c) of the Master Summons. G.A. No. 523 of 2006 and G.A. No. 524 of 2006 are dismissed. 10. There would be however no order as to costs.