Wanchoo, C. J. - (1.) 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. The suit came up finally for hearing on the 18th January, 1951. On that date, the plaintiff's 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. 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 plaintiff's 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 defendant's 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. 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, and O. 17, R. 2 might have been used. He has relied on (i) Rumansa Rajansa Hosmani vs. Shankar grounds Bas-angounda Lakhyal (1) (A. I. R. 1941 Bom. 83.), (ii) Basalingappa Kushappa Kumbhar vs. Shidramappa Irappa Shivanagi (2) (A. I. R. 1943 Bom. 321.) (iii)Tekchand Nenoomal vs. Kalusingh Manjusingh (3) (A. I. R. 1943 Sind 94. ). These are, however, all cases where one of the parties were absent, and Order 17 R. 2 clearly applied. Further 0. 17 R. 3 also applied except in Rumansa Rajansa Hosmani's case (1 ). It was then held that where both Order XVII, rules 3 and 2 applied, the proper course for the court to take is to apply O. 17 R. 2, when there is no sufficient material on record to come to a decision on the merits. In the case before us, it is admitted that O. 17 R. 2 has no application because both parties were present in court on the 18th of January, 1951. In such circumstances, the court could only proceed under O. 17 R. 3, if it was not prepared to grant a further adjournment. It is true that there was no evidence before the court to come to a decision on the merits; but considering that the burden was on the plaintiff, and the plaintiff had failed to produce evidence to discharge that burden, the court could rightly dismiss the suit on that ground. The only question that remains to be seen is whether in the circumstances of the case, the court acted properly in dismissing the suit, or whether ii would have been more appropriate on the part of the court to grant an adjournment in this case. In that connection, we may point out, in the first place, that there is nothing to show that there was a prayer on behalf of the plaintiff for adjournment of the case to another date. All that we now know from the order sheet is that the plaintiff wanted a few hours' time on the same day. Further, we are of opinion that sufficient time had been granted from after 22nd May, 1950 to the plaintiff to produce his evidence, and under these circumstances it cannot be said that the court acted improperly in dismissing the suit on the ground that there was no evidence to discharge the burden which lay on the plaintiff. We think, therefore, that this is not a case in which the court should have granted a further adjournment and under these circumstances the order passed must be upheld. We, therefore, dismiss the appeal with costs to the defendant respondent. .;