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TMI Blog1950 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... er and an order was made on that application by Tendolkar J. On 18th October 1949, the plaintiffs' solicitors wrote to the defendants' solicitors that their clients had been advised to withdraw the suit and they did not propose to proceed with the same and they personally undertook to pay the costs of the notice of motion which was still pending which would be allowed to be dismissed. They further gave intimation to the defendants that they would apply on the following day for the order of withdrawal of the suit with liberty to file a fresh suit. Accordingly an application was made by the plaintiffs' attorneys for withdrawal of the suit with liberty to file a fresh suit. The application was made in Chambers and it was on that ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff to withdraw the suit with liberty to file a fresh suit. Our attention is drawn to a decision of this Court in Narandas v. Shantilal 22 Bom. L. R. 1012 : A. I. R 1921 Bom. 267. There, a suit was heard by Macleod C. J., for some length of time. He recorded evidence and he delivered a judgment, but the ultimate order that he made was that he allowed the plaintiff to withdraw the suit and gave him liberty to file a fresh suit. It was from that order that an appeal was preferred and a contention was raised before Sir John Heaton Ag. C. J., and Marten J., that that order was not a judgment and the Court held that it was a judgment within the meaning of Clause 15. Mr. Seervai attempts to distinguish this case by pointing out that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judge, we do not understand how this order came to be made in Chambers. This is not one of the matters which under the High Court Rules can be disposed of in Chambers, and in our opinion an application under Order 23, Rule 1, must always be made in open Court and the order must be made in Court. Further, it appears from the order which is drawn up that the other side was not heard at all and the order made was an ex parte order. In our opinion, no order under Order 23, Rule 1 (2), should ever be made without hearing the other side. The Court has to be satisfied, as I have pointed out before, that there is some formal defect by reason of which the suit would fail, and in order to decide that the Court is obliged to hear the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that class whom they represent. It is perfectly true that the Court can give its consent to the compromise or withdrawal of a representative suit. But normally the Court does not do so without directing that the plaintiff should advertise in the papers that he proposed to take a particular course of action, and if no objection is forthcoming, then the Court ordinarily passes the order. But it does not appear from the order made by the learned Judge that it was present to his mind that he was permitting a representative suit to be withdrawn without the persons represented by the plaintiffs being consulted at all. 5. Under the circumstances, we think that the order made by the learned Judge cannot stand. We, therefore, allow the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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