Govindarajachari, J - (1.) This is an appeal against the order of the District Judge of South Arcot refusing to restore O.S. No. 2 of 1944 which was dismissed on 9 January, 1945. The plaintiffs were minors represented by their paternal aunt as their next friend. The suit was for a declaration that the Court sale in O.S. No. 16 of 1929 on the file of the District Judge of South Arcot of the house described in the plaint is void and not binding upon the plaintiffs and for other reliefs. The suit was dismissed for default once previously on 24 August, 1944. It was subsequently restored and came on for trial on 23 November, 1944. The plaintiffs next friend alleges that she took steps for the hearing on that date. The suit was, however, adjourned from 23 November, 1944, to 8 December, 1944. The next friend admits that she did not take steps for 8 December, 1944, but adds that her witnesses came for that hearing. . The learned District Judge states in his order that she was not ready for the hearing on that date presumably on the strength of his notes. This receives some support from the statement of the plaintiffs next friend in the course of cross-examination that she did ,not take steps for the hearing on 8 December, 1944, because she thought the witnesses would come. There is, however, no dispute that she took no steps for the hearing on 9 January, 1945, to which date the suit stood adjourned from 8 December, 1944, and that the witnesses did not come on 9 January, 1945. The suit was accordingly dismissed. The principal ground on which restoration was sought was that one Arumuga Mudali, who was examined as P. W. 2, was attempting to bring about a compromise between the parties, that he fell ill on 8 January, 1945, that he did not come either on 8 January, 1945, or on the succeeding day and that the next friend made no arrangements for the conduct of the suit because she believed that the suit would be reported as settled on 9 January, 1945. P. W. 2 admits that neither the plaintiffs nor the defendants asked him to mediate and that he himself volunteered to do so. He states further that the attempt at compromise did not fructify and that he told P. W. 1, the next friend of the plaintiffs, ten days before the hearing on 9 January, 1945,." that the talks had not made progress." We share with the learned District Judge his doubt whether the allegation that P. W. 2 was trying to bring about a settlement is true. The learned District Judge says on his recollection of what happened in Court on 9 January, 1945, that no mention of a compromise was made on that date. He points out that the lawyer who was previously appearing for the plaintiffs was dropped and a new lawyer engaged to argue the petition for restoration. The learned Judge surmises, not without justification, that this was done because the lawyer who originally represented the plaintiffs would not put forward the story of negotiations for settlement or that any mention of such settlement was made in Court on 9 January, 1945, because he knew that no such thing had taken place. There is no doubt a curious statement of the defendant that he stated on 9 January, 1945, evidently in Court, that there was no attempt at compromise at all. The appellants counsel argues that there was no necessity for such a denial if no reference in Court was at all made to a contemplated compromise.
(2.) However that may be, it is not possible to say on the present material that it was stated to the Court on 9 January, 1945, that a compromise was in progress and assuming that such a statement was made that there was really any attempt at settlement.
(3.) Assuming that P. W. 2 was attempting to bring about a settlement we have it from him that the plaintiffs next friend was apprised by him ten days before the hearing, of the real situation that the talk had made no progress whatever. There is therefore no justification for the plaintiff's next friend to omit to take steps for the hearing on 9 January, 1945. We agree with the learned District Judge that it has not been made out that there was sufficient cause for the non-appearance of the plaintiffs when the suit was called on for hearing on 9 January, 1945, and that the dismissal of the suit cannot therefore be set aside.;