Non-joinder of parties is not a formal defect contemplated by O. 23, R. 1(2) of the Civil Procedure Code, 1908.

CHAGLA, C.J. - This is an appeal from an order made by Bhagwati, J., by which he gave the plaintiffs leave to withdraw the suit filed by them with liberty to file a fresh suit. The suit which the plaintiffs had filed was a representative suit and it was filed on 4th October 1949. On 5th October the plaintiffs made an ex parts application for Receiver 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 application that the learned Judge made the order against which this appeal is preferred.

2. Now, a preliminary point has been taken by Mr. Seervai that this order is not appealable as it is not a judgment within the meaning of cl. 15, Letters Patent. In our opinion, an order which deprives the defendant of a valuable right is certainly a judgment within the meaning of cl. 15. It is always open to a plaintiff to withdraw the suit or abandon part of his claim and the result of such withdrawal or abandonment of part of the claim would be that he would be precluded from instituting a fresh suit or re-agitate the matter to the extent of the withdrawal of his claim. But when the Court gives him leave to withdraw the suit with liberty to file a fresh suit, he is entitled to come to Court again on the same cause of action, and to that extent the right of the defendant is affected because it is open to the defendant to satisfy the Court that liberty should not be given to the plaintiff to file a fresh suit although he may withdraw the suit if he was so advised. Further, in giving liberty to file a fresh suit where leave to withdraw is given, the Court must come to a judicial decision and that decision is that it must be satisfied that the suit would fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit. It is only under these circumstances that the Court has power to make an order permitting the plaintiff 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 LR 1012 : (AIR (3) 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 cl. 15. Mr. Seervai attempts to distinguish this case by pointing out that the order of Macleod, J. was made after the suit had gone on and the Court had beard various matters in dispute between the parties and after issues bad been raised and after a judgment was actually delivered by Macleod, J. Mr. Seervai says that in this case nothing has been done even the summons has not been served on the defendant. In our opinion, the distinction that Mr. Seervai tries to draw is a distinction without any logical basis. Whether Macleod, J. had heard the suit for some time or not, the ultimate order that he made was giving leave to the plaintiff to withdraw the suit with liberty to file a fresh suit. It was that order that was attacked and challenged. Th