NARANDAS RAGHUNATHDAS Vs. SHANTILAL BHOLABHAI

JUDGEMENT

(1.) The only point we are concerned with at the moment is, whether this appeal lies. For the purpose of discussing that point, one must make one or two assumptions. There was a suit in the High Court, which came before the Chief Justice and was disposed of by him, but although he had heard the evidence and had written a considered judgment as to a number of points that arose in the case, he did not decide the case on the merits. He said:-"My best course is to allow the plaintiffs leave to withdraw their suit with liberty to take such action hereafter as they may be advised against the defendants," and afterwards he added : "I think both parties have been in the wrong and so I make no order as to costs." Thereafter a formal order was drawn up, which said: "This Court doth order that the plaintiff firm be and they are at liberty to withdraw this suit and take such action hereafter as they may be advised."

(2.) The assumption I am making is that this was an order made under Clause 2 of Rule 1 of Order XXIII, Civil Procedure Code.

(3.) It was suggested that the order made was not an order of that kind at all, but something altogether different. That may or may not be so. At present I say nothing whatever on that point. I assume that the order is an order under Rule 23, and then the question is whether an appeal lies against that order. If the case had been tried in the mofussil, I think it would be held that no appeal lay, and therefore we have to turn to Clause 15 of the Letters Patent or Charter and see whether this pronouncement of the Judge is a judgment within the meaning of the words, of that clause. It seems to me that it is a judgment.