Wanchoo, C.J.—This is an appeal by Amar Singh against the order of the Civil Judge of Jodhpur, dismissing the suit of the plaintiff appellant under O. 17, R. 3 C.P.C.

2. The plaintiff filed a suit for compulsory registration of a sale deed said to have been executed by Rao Raja Narain Singh, who was the husband of defendant respondent Srimati Nandkanwar. The suit was filed in December, 1949, and issues were framed on the 17th March, 1950 thereafter certain preliminary issues were decided on the 22nd May, 1950, and then the suit was fixed for evidence on the 11th August, 1950. On that date, some of the witnesses for the plaintiff were present, while some were absent, and therefore the suit was postponed to 13th October, 1950. When the suit came up for hearing on the 13th October 1950, an application was presented on behalf of both the parties saying that a compromise had been arrived at, but it would take some time to get the signatures of the parties and to present it in court. It was, therefore, prayed that the suit might be adjourned for a short time. . The court, thereupon, adjourned the suit to the 30th October, 1950. On the 30th October, learned counsel for the plaintiff was ill, and prayed for an adjournment. No compromise was filed on the 30th October, and the court, therefore, gave a last opportunity to the plaintiff to produce his evidence, particularly as the counsel for the defendant did not object to the adjournment being granted. The ordersheet also shows that the plaintiff had undertaken to produce the witnesses himself.

3. The suit came up finally for hearing on the 18th January, 1951. On that date, the plaintiffs witnesses were not present. It may be mentioned that the plaintiff had made no attempt to summon his witnesses either, if he felt that he could not produce them himself. The suit seems to have come up before the court in the early part of the day, and learned counsel for the plaintiff wanted a short adjournment for a few hours, and that adjournment was granted. The suit again came up for hearing later in the day, and the order sheet shows that the court had waited for a sufficiently long time; but in spite of this waiting the plaintiff failed to produce any evidence. The plaintiff also failed to produce any deed of compromise. Consequently the court dismissed the suit under O.17, R. 3. The present appeal is against this order of dismissal.

4. Learned counsel for the appellant urges that the reason why no witnesses were brought on the 11th January, 1951 was that the parties had almost arrived at a compromise. If that was really so we would have expected a joint application on this date also as was actually done on the 13th October, 1950. No such joint application however, was made though it may be that the plaintiffs counsel had told the court that he had hopes of compromise, and therefore a few hours adjournment should be granted. We can infer this from the fact that the order sheet says that even though the court had waited for a sufficiently long time, no deed of compromise was produced and no evidence was given. We are, however, not prepared to believe that the plaintiff did not bring his witnesses, because he had been deceived by the defendants promise that a compromise would be filed. There is no such allegation of the plaintiff, and all that we can therefore conclude is that when the plaintiff found himself in the difficult position that he was without witnesses and the court was not likely to give an adjournment he tried hard if he could to get the signature of the defendant on some kind of a compromise. He, however, failed in that attempt, and the court, after waiting long enough, dismissed the suit for want of evidence. The burden of the issues in this suit was on the plaintiff, and as the plaintiff failed to prove those issues his suit was bound to fail.

5. Learned counsel however urges that the court should not have acted under O. 17, R. 3, and that the suit might have been dismissed for default

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