L.C.T.L.P.L. Palaniappa Chettiar and ors. Vs. M.R. Krishnamurthy Chetty and ors. - Court Judgment

Excerpt:
letters patent, clause 15--term, judgment--meaning of--order granting leave to sue in forma pauperis by single judge of high court--is judgment and hence appealable; the question raised was whether an order granting leave to sue in forma pauperis by a single judge of the high court, was a judgment within the meaning of clause 15 of the letters patent (madras).; held by the full bench that an order made by a learned single judge granting leave to sue in forma pauperis was a judgment within the meaning of clause 15 of the letters patent and hence appealable. - - 1. the issue that has been referred to this full bench can be very simply stated: it is, whether an order granting leave to sue in forma pauperis by a single judge of the high court, is a judgment' within the meaning of clause 15 of the letters patent? even in this restricted form, the issue involves a conflict of the case law in this court. in m.r. ananthanarayana iyer v. rarichan, ilr 59 mad 656 = (air 1936 mad 387), a division bench of beasley c. j. and stodart j. held that an order of a single judge of the high court excusing the delay in the filing of a pauper appeal and admitting the appeal, is not a 'judgment' which can be the subject of an appeal under clause 15 of the letters patent. in p. baba sah v. purushottama sah 47 mad lj 932 = (air 1925 mad 167), spencer c. j. and.....

Judgment:
1. The issue that has been referred to this Full Bench can be very simply stated: It is, whether an order granting leave to sue in forma pauperis by a single Judge of the High Court, is a judgment' within the meaning of Clause 15 of the Letters Patent? Even in this restricted form, the issue involves a conflict of the case law in this Court. In M.R. Ananthanarayana Iyer v. Rarichan, ILR 59 Mad 656 = (AIR 1936 Mad 387), a Division Bench of Beasley C. J. and Stodart J. held that an order of a single Judge of the High Court excusing the delay in the filing of a pauper appeal and admitting the appeal, is not a 'judgment' which can be the subject of an appeal under Clause 15 of the Letters Patent. In P. baba Sah v. Purushottama Sah 47 Mad LJ 932 = (AIR 1925 Mad 167), Spencer C. J. and Srinivasa Aiyangar J. held that an order of a single Judge of the High Court granting permission to the plaintiff to sue in forma paperis amounts to a 'judgment' within the meaning of Clause 15, Letters Patent.

In Cork Industries v. Govindarajulu Mudaliar, ,

Ramachandra Iyer C. J. and Ramakrishnan J. referred to this conflict, and, after a reference toAsrumathi Debi v. Rupendra Deb, pointed out that there was a fundamental difference, for the purpose of Clause 15 of the Letters Patent, between a case where leave to sue in forma pauperis is refused, and one where leave is granted; where leave is granted, the effect of the order is not to terminate the proceeding or suit, but, on the other hand, the suit is allowed to be proceeded with; such an order, therefore, does not amount to a 'judgment' and no appeal against it lies under Clause 15 of the Letters Patent. The actual issue involves a resolution of this conflict in the case law.

(2) But, it also involves a far more extensive area of controversy in the case law. The question, what will amount to a 'judgment' within the meaning of Clause 15 of the Letters Patent, and by what touchstone, or by the application of which criteria, that has to be determined, appears to have been agitated in all High Courts for several decades past; again upon what may be termed analogous situations, when a particular order of a single Judge of the High Court is or is not to be construed as a 'judgment' within the scope of Clause 15 of the Letters Patent, the decisions are of a very wide variety, and exhibit several divergences of view. But the wider question of the tests to be applied to determine the status of an adjudication of a single Judge, with reference to Clause 15 of the Letters Patent, has necessarily to be answered first, before the restricted issue can be disposed of. For this reason, I propose to undertake an analysis, confining myself to the landmarks in the case law, and imposing a necessary selectivity with respect to the precedents of analogous situations.

(3) For an important reason, I think that the proper procedure is not to attempt a definition, or even a description, of 'judgment' as occurring in Clause 15 of the Letters Patent, but to attempt to distil the essential tests for determining this, from the case-law. This is because a definition has been found to be almost impossible, and even a description to be beset with many pitfalls; on the contrary, the criteria at least have necessarily to be ascertained and precisely formulated. Once that has been done, we should be in a position to determine whether the order granting leave to sue in forma pauperis by a single Judge of the High Court is or is not an appealable judgment, within the scope of Clause 15 of the Letters Patent. In my view, it is logically indefensible to argue from decisions impinging upon analogous situations, as has sometimes been attempted in the case-law. Firstly, such an argument, from the particular instance to a general proposition, is not the true mode of analysis. Secondly, the consequences of applying the determined tests to other situations, need not be anticipated or discussed now. Such situations must be dealt with, as and when they arise, and it may even be that several precedents of other High Courts, might have to be dissented from or distinguished on such occasions.

(4) There is a Full Bench decisions of the Rangoon High Court in In re Dayabhai Jiwandas v. A. M. M. Murugappa Chettiar, ILR 13 Rang 457 = (AIR 1935 Rang 267), in which Page C. J. has laid down the extreme view that the word 'judgment' in the Letters Patent of the High Court "means and is a decree in a suit by which the rights of the parties at issue in the suit are determined". After distinguishing between a final judgment, in this sense, and a preliminary or interlocutory judgment, the learned Judges of the Full Bench proceed to state that "all other decisions are 'orders', and are not 'judgments', under the Letters Patent, or appealable as such". I am referring to this decision, for it represents one extreme deviation from the main, trend of the case law; which, indeed, we need not follow further. But, in this decision, the history of the matter has been briefly indicated.

At the time when the Letters Patent were drafted, it appears to have been the practice in England to call decision of the Courts of Chancery and the King's Bench and the Criminal Courts, decrees, judgments or orders respectively; the framers of the Letters Patent presumably had this distinction before them. But, by a subsequent development of the case-law, 'judgment' came to be synonymous with a 'decree' but not with an 'order'. Ex parte Chinery; In re Chinery, (1884) 12 QBD 342 at p. 345, Onslow v. Inland Revenue Commrs. (1890) 25 QBD 465 and Ex parte Moore; In re Faithfull (1885) 14 QBD 627, are some of the English cases cited. In the Full Bench decision of this Court in Central Brokers v. Ramnarayana Poddar and Co., (FB), this previous

history has received some consideration. Both Govinda Menon J. and Mack J. stressed that any definition of the word, or even a description, would be difficult and misleading; Mack J. has referred to the attempt at comprehensive definition of the word 'judgment' by Hidayatullah J. (as he then was) in Manohar Damodar v. Baliram Ganpat, AIR 1952 Nag 357 (FB). He has also referred to the history of the Letters Patent, and added:

"I venture to express the hope here that no further attempt will ever be made by any Bench however full and however authoritative, as, in my view, to define the word 'judgment' in the year 1954 as the framers of the statute intended the word to apply in 1862 or 1865 is attempting to impossibility".

(5) It is essential that I should, first discuss the landmarks of the case-law, upon this aspect. It is only after such a discussion that we can hope to distil or precisely define those criteria, which, whether applied cumulatively or singly, will determine when an adjudication of a learned single Judge of this Court, is or is not a 'judgment' for the purpose of Clause 15 of the Letters Patent. Ancillary to this undertaking, but essential to it, are the following questions. What precisely is the character of a plaint presented in forma pauperis to the learned Judge? Is it a suit, or a composite entity partaking both of the character of a proceeding preliminary to a suit and a suit, which may or may not eventuate in a suit? Is it, on the contrary, an independent proceeding? Can it perhaps be regarded more justifiably, a as prefatory but a distinct proceeding which may or may not lead to a suit? Equally, what is the character of the liability of the defendant, when he is given notice in such proceedings, and appears and contests the application of a petitioner plaintiff? Is it not a valuable right, not to be thus sued by a litigant who may harass the defendant by an unconscionably exaggerated claim, and, moreover, a right which is forever lost by the adjudication granting leave, and which cannot be further agitated at any stage of the suit which follows, or an appeal from it?

(6) We may commence with the judgment of this Court in Desouza v. Coles, (1866-68) 3 Mad HCR 384, as that appears to be the earliest venture at definition or the enunciation of a test. Bittleston J. held that a 'judgment', as that word occurs in Clause 15, Letters Patent, "must be held to have the more general meaning of any decision or determination affecting the rights or the interest of any suitor or applicant". The learned Judge added that "it is, we think, impossible to prescribe any limits to the rights of appeal founded upon the nature of the order or decree appealed from". It will at once be seen that this is an extreme deviation in one direction as the decision of the Full Bench of the Rangoon High Court in ILR 13 Rang 457 = (AIR 1935 Rang 267) (FB), is, in the other; the broad stream of the case-law courses midway, and neither can be followed. The significant landmark is the Full Bench decision of this Court in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar, (1912) ILR 35 Mad 1. Though the point arose with regard to an order of a single Judge declining to frame an issue asked for by one of the parties, the decision is much wider in scope, and truly attempts a formulation of the criteria. It is important for that reason.

(7) On this aspect, White C. J. thought that the dicta of Bittleston J. in (1866-68) 3 Mad HCR 384, were far too wide, and, in an important passage stated the test in the following words-

"The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a 'judgment' within the meaning of the clause. An adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion a judgment within the meaning of the Letters Patent.

I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) e. g. an order on an application for an interim injunction, or for the appointment of a receiver is a 'judgment' within the meaning of the clause".

I may here add that in the separate judgment of Krishnaswami Ayyar J. there are valuable dicta, but we need refer here only to one observation of the learned Judge, namely, that "the word 'judgment' covers a preliminary or interlocutory judgment as well as a final judgment, but it does not include an interlocutory order".

(8) Out next landmark must be the Justices of the peace for Calcutta v. Oriental Gas Co. Ltd. (1872) 8 Beng LR 433. The following dicta of Sir Richard Couch C. J. are vital to the present context:

"We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined".

In Hadjee Ismail Hajee Habeeb v. Hadjee Mahomed Hadjee Joosub, (1874) 13 Beng LR 91, a Division Bench of Sir Richard Couch, C. J. and Pontifex J. were concerned with a right of appeal from an order granting leave to the plaintiff to institute a suit under Clause 15 of the Letters Patent, among other matters, and the learned Judges observed that where an order was not merely formal, "or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have" it will be a 'judgment' from which an appeal lies. The Court further observed that this test determines some right between the parties, namely, the right to sue in a particular Court, and to compel the defendants who are not within its jurisdiction to come in and defend the suit". These two cases have to be referred to, for the reason tat the subsequent discussion in the precedents often proceeds upon a divergence of view exhibited in this matter as between the Calcutta and the Madras High Courts; it has also been pointed out, sometimes, that the divergence is more a matter of inclusiveness, emphasis and phrase, and that there is no radical difference of opinion on the tests to be applied.

(9) We may next notice the decision of the Division Bench of Sir Lawrence Jenkins, C. J., and Batchelor, J., in Vaghoji v. Camaji, (1905) ILR 29 Bom 249. This decision is important, for it is the source or commencement, for one of the tests that I shall subsequently formulate. The point of this is best understood by a reference to the observation of White, C. J., in (1912) ILR 35 Mad 1 (FB) upon this case:

"As regards the Bombay authorities I may refer to (1905) ILR 29 Bom 249 where it was held 'that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Cl. 15 of the Letters Patent should not be rescinded and the plaint taken off the file'. Here the adjudication asked for, if made, would have disposed of the suit."

Certain decisions of this High Court may now receive our attention, before scrutiny is focussed on the vital decision of the Supreme Court from which, it appears to us, the tests can be gathered and precisely formulated. In 47 Mad LJ 932 = (AIR 1925 Mad 167) there is a reference to the earlier decision Appasami Pillai v. Somasundara Mudaliar, (1903) ILR 26 Mad 437, which apparently held that there was no appeal under the Letters Patent against the order of a single Judge refusing to give leave to appeal in forma pauperis. We might immediately state that this cannot be regarded as good law, and that the contrary proposition was never in doubt or dispute, during the lengthy arguments addressed to us. An order of a single Judge declining to grant leave to sue or appeal in forma pauperis, extinguishes a valuable right of the plaintiff, and puts an end to the suit itself. it was pointed out, at one stage of the arguments, that the suit does not necessarily come to an end by means of such an order; the practice of Courts is not to reject the plaint outright, but to give further time for payment is effected, the registration of the presented plaint as a suit follows inevitably. But, firstly, we cannot speculate upon the possibility or probability that a particular plaintiff, though the Court might have declined to accept proof of his pauperism, will be able to pay the Court-fee. Secondly, as pointed out by Mack. J., in Ganga Bhavanamma v. K. Surayya, , there is no statutory support for the practice, which probably developed out of a feeling of charity towards such suitors; the Court is under no legal obligation to give such time.

(10) In 47 Mad LJ 932 = (AIR 1925 Mad 167), which is under notice, the Bench pointed out that there is no discretion in the Court to allow or not to allow a person to sue as a pauper, if, on the evidence, the Court concludes that the pauperism is established. Therefore, the final order of a Judge sitting on the Original Side, whether allowing or refusing to allow the plaintiff to sue as a pauper, was a 'judgment' under Clause 15 of the Letters Patent. In Maharajah of Pithapuram v. Ram Rao Bahadur, ILR 50 Mad 770 = (AIR 1927 Mad 846), a Division Bench observed that an order of a single Judge of the High Court, was not appealable under C1. 15, if the question of jurisdiction of the High Court to entertain the suit is still open to the defendant, and can be raised on an appropriate issue at the trial of the suit; but if the order has finally shut out the defendant from thereafter pleading that the suit should have been dismissed on the point of jurisdiction, then the order was a 'judgment' and was appealable as such.

This test, which is certainly relevant, is of considerable interest and significance, upon the nature of proceedings under O. XXXIII, Rr. 5, 6 and 7, C.P.C. As Sri Kumaramangalam has rightly stressed, where the application is allowed against the defendant, upon grounds relating to Or. XXXIII, R. 5(b), (c) or (e), the defendant cannot, at any further stage of the suit or appeal, agitate those issues of the means of the applicant, or the fraudulent disposal of properties by him for the purpose of the application, or any agreement in champerty with a third party. We may next notice ILR 59 Mad 656 = (AIR 1936 Mad 387), where an order of a single Judge admitting a pauper appeal was held by the Bench not to be a 'judgment' under C1. 15 Letters Patent, because "the order, therefore, was not one which put an end to a proceeding but, on the contrary, it enabled it to go on".

The same test was applied by Rajamannar, C. J., in the Bench judgment in Simrathmull v. Jugraj, , with regard to an order of a single Judge holding that a suit based on a foreign judgment had been properly filed under Or. 7, Rule 1 of the Original Side Rules. This did not put an end to the suit or proceeding, and could not also be treated as an order on an independent proceeding ancillary to the suit. In the same volume, we have two Full Bench decisions, Rangaswamy Chettiar and Co. v. Eswaramurthy Goundar, (FB), that I have

already referred to. The former held that an order of a single Judge of the High Court refusing to stay execution of a decree under Or. XLI, R. 5, C.P.C., pending appeal, was a 'judgment' within the meaning of Cl. 15 of the Letters Patent.

In Union of India v. Shanmugha Nadar, , Rajamannar, C.J., and Ramachandra Iyer, J., held that the two tests to determine the status of an adjudication of a single Judge, with reference to Cl. 15, were (1) whether it terminated the suit or proceeding and (2) whether it terminated the suit or proceeding and (2) whether it affected the merits of the controversy between the parties in the proceeding itself; an order refusing to dispauper a plaintiff was not a judgment', as the tests were not satisfied. In ,

Ramachandra Iyer, C.J., again refers to the same two tests, the source of these being , and I have already set forth the

conclusions of the learned Judges. The question, here, therefore, is (1) What are the tests to be applied in this regard, and (2) what is the effect of applying the formulated test to an order of a single Judge, on the Original Side, granting leave for a suit in forma pauperis? We may take is as established that the order declining to grant leave is a 'judgment' within the meaning of Cl. 15. Letters Patent.

(11) Naturally, this turns largely upon the observations of their Lordships of the Supreme Court in , which may be

treated, if I may say so with respect, as the pivotal decision in this entire area of the case-law. I shall show that subsequent decisions of the Supreme Court have not taken the matter any further, nor have they decided whatever might have been still left in controversy by . Very briefly stated, that was an instance of an

order for transfer of a suit, made under Cl. 13 of the Letters Patent and the discussion turned upon the distinction between a proceeding of that character, and an order under Cl. 12 of the Letters Patent, either rescinding leave to sue granted under Cl. 15 or declining to rescind such leave.

Their Lordships first set forth the dicta of Couch, C.J., in (1872) 8 Beng LR 433, which I have earlier extracted. They also referred to the extreme view of the Full Bench of the Rangoon High Court in ILR 13 Rang 457 = (AIR 1935 Rang 267 (FB)) and stressed the wide divergence of judicial opinion. But the main decision that was taken up for commentary was (1912) ILR 35 Mad 1 (FB). One observation of Couch, C.J., quoted by their Lordships, is of some significance in the present context of discussion; it is that "there is an obvious difference between an order for the admission of a plaint and an order for its rejection. The former determines nothing, but is merely the first step towards putting the case in a shape for determination. The later determines finally, so far as the Court which makes the order is concerned, that the suit, as brought, will not lie".

Their Lordships then proceed to refer to Krishna Reddi v. Thanikachala Mudali, ILR 47 Mad 136 = (AIR 1924 Mad 90), where this Court held that an order under Cl. 13 of the Letters Patent was upon the same status as an order under Cl. 12; the Supreme Court pointed out that "this reasoning is not sound". Obviously, ILR 47 Mad 136 = (AIR 1924 Mad 90) cannot be held, any longer as correctly decided; but that is really of little relevance or significance in the present discussion. Their Lordships then proceeded to extract the observations of White, C.J., in (1912) ILR 35 Mad 1 (FB) upon the character of the decision in (1905) ILR 29 Bom 249. The penultimate paragraph of the judgment of their Lordships is of great significance, and hence I set it forth verbatim below:

"Leave granted under Cl. 12, Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such have is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made dismissing the Judge's summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out, that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the Court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of the view. It is enough for our purpose to state that there is a difference between an order refusing to rescind leave granted under Cl. 12 of the Letters Patent and one under Cl. 13 directing the removal of a suit from one Court to another, and there is no good reason to hold that the principle applicable to one applies to the other also."

(12) I may here add that in setting forth the dicta of White, C.J., in (1905) ILR 29 Bom 249 the words "adjudication asked for, if made, would have disposed of the suit" are placed in italics in the text of the Supreme Court report, though not in the original report.

(13) From the Supreme Court decision, it appears to us that four tests can be clearly formulated, and not merely two, as was thought to be the case by the Division Benches of this Court in and

. Three of these tests may be termed as tests of

positive character, and the last is really negative, but there can be no doubt that it also has relevance and force. The tests are (1) Whether the order or judgment of the single Judge terminates the suit or proceedings?; (2) Whether it affects the merits of the controversy between the parties in the suit itself?; (3) a test that can be considered a refinement of test No. 2, but which upon juristic principle should be separately stated, namely, whether it determines some right or liability as between the two parties?; and (4) the negative test that has found express recognition in the dicta of White, C.J., with reference to (1905) ILR 29 Bom 249, and has not been disapproved by their Lordships of the Supreme Court in Asrumati Debi's case, , but which, instead, would appear to have been impliedly approved, namely, whether, apart from the actual words in the lis or proceeding, 'a conceivable order' or an order to the contrary effect, would have disposed of the suit and would come within the definition of 'judgment'.

Very simply stated, since the order declining leave to sue in forma pauperis is indisputably a 'judgment' and is appealable, an order granting leave in the same lis or proceeding, determining the same right and liability, would also be a 'judgment', for the simple reason that the other possible order would have terminated the suit itself. The difficulty with regard to the acceptance of the test in Cork Industries v. Govindarajulu Mudaliar, , is that only two tests are formulated, and there is no reference at all to the test of a 'conceivable order' in the lis which would terminate the proceeding.

(14) I might immediately state that subsequent decisions of the Supreme Court, to which reference has been made before us, have not taken up the matter any further, and, actually, there has been no final expression of opinion as between what are termed the Calcutta view and the Madras view, on Clause 15. Before proceeding to this aspect, however, it may be pertinent to notice certain decisions of other High Courts and of our own. In Krishnamurthi v. Ramayya, 51 Mad LJ 79 = (AIR 1926 Mad 875), the Court held that where an application to sue in forma pauperis was summarily rejected, a second application to sue as a pauper was not barred; it was held that the principle of res judicata could not be pressed so far. In Appaji Reddiar v. Thailammal, 64 Mad LJ 493 = (AIR 1933 Mad 417), a Bench of this Court held that an order bringing on record the respondent as the legal representative of a deceased appellant, was not a 'judgment' within the meaning of Cl. 15, Letters Patent.

In Honkong and Shanghai Banking Corporation v. Official Assignee, , it was held that where a suit had been filed with leave under Cl. 15, Letters Patent, it was always open to the Court to find that the Court had no jurisdiction, and that the grant of leave was erroneous. In Shorab Merwanji Modi v. Mansata Films Distributors, , a Division Bench of that Court held that an order declining to stay a suit under S. 10, C.P.C. involved the assumption of jurisdiction, affecting the merits as a part of the controversy between the parties, and was hence a 'judgment' within the meaning of Cl. 15, Letters Patent. The Full Bench decision in has

necessary to be here referred to; the observation of Govinda Menon, J., in that judgment, to the effect that the Supreme Court held in Asrumati Debi's case, , that an order refusing to rescind leave to sue granted under Cl. 12 was not a 'judgment' was pointed out to be incorrect; that, incidentally, is not disputed before us.

In Laxminarayan v. Udairam, , it was held that an

order re-issuing summons in a pending suit, was not a 'judgment' within the meaning of Clause 15, Letters Patent. In Sadashiv v. Soondardas, AIR 1931 Bom 166 a Division Bench of that Court pointed out that if leave was not given under Order XXXIII, C.P.C., the decision affected the merits of the question between the parties by determining that the plaintiff had no right to sue as a pauper, and the order was, therefore, a 'judgment' Blackwell, J. stated:--

"Where, as in this case before us, a clear right is afforded to a litigant by the terms of the Civil Procedure Code, in my opinion, the decision of a Court which deprives him of that right must be a 'judgment' within the meaning of Cl. 15, Letters Patent."

I have to emphasise this, for it appears to me that such a right has necessarily a correlated obligation or liability of the defendant, to be sued by a plaintiff who does not pay the court-fee, and that this, in turn, equally involves a right in the defendant to show cause against the grant of leave; that right is finally determined against him in the proceedings, and, in that sense, there is a determination of an important right, a correlated liability and corresponding right in the opposite party, as between the parties, even where the order of the learned single Judge is an order granting leave, and not declining leave. In Ma Than Myint v. Mg. Ba Thein, AIR 1926 Rang 110, a Bench of that Court held that an order allowing a party to sue in forma pauperis, was not a 'judgment' within the meaning of Clause 13, Letters Patent.

The learned Judges stated, following Secy. of State v. Jillo, (1898) ILR 21 All 133 (FB), that an order of that kind was not an adjudication deciding a right claimed in a suit, and that "such an order relates to the institution of the suit, and affects only the right of the Government to get court-fees". The Elphinstone Spg. and Wvg. Mills Co. Ltd. v. Sondhi Sons Private Ltd., (FB), it was held that an order of a single Judge on the Original Side of the High Court setting aside an ex parte decree under Or. IX, R. 13, C.P.C., does not amount to a 'judgment' under Cl. 15. In Maria Elaviana Almeida v. Ramachandra Santuram, AIR 1938 Bom 408, it was held that an order under O. XXII, R. 9, C.P.C., setting aside abatement, was not an appealable judgment under Cl. 15, Letters Patent, since it merely regulated the procedure. In Burjorji v. Murlidhar, AIR 1943 Bom 318 it was held that an order granting leave to sue in forma pauperis determines no right as against the defendant to the suit, and was not appealable under Cl. 15 Letters Patent. In Union of India v. Khetra Mohan Banerji, , a suit was brought on the Original Side of that

Court for a sum of money said to be due for work done on a contract, and it was held that the direction of the single Judge to take accounts on the footing of certain measurements for ascertainment of the amount due, would satisfy the requirement of a 'judgment' within the meaning of Cl. 15; the other directions of the Judge were not held to be so satisfied.

(15) Before proceeding further with the analysis, I may briefly refer to the Supreme Court decisions subsequent to Asrumati Debi's case, . In Milkhiram (India) Private Ltd. v. Chamanlal

Bros., . Mudholkar, J., has made the following

observation, though incidentally, with regard to an order of a single Judge of the High Court, on the Original Side, demanding security from the defendant, without furnishing reasons therefore:

"No doubt an appeal lay against it under the Letters patent but that is merely an internal appeal in a High Court.........."

In Shankarlal Aggarwala v. Shankarlal Poddar, the

area of debatable case-law earlier stressed in Asrumati Debi's case, is referred to by Aiyangar, J. and also the decision of the Supreme Court in State of Uttar Pradesh v. Vijay Anand Maharaj, , but the resolution of the controversy, by defining the scope of the expression 'judgment' in Letters Patent, in not attempted. Another relevant decision is Union of India v. Mohindra Supply Co., , which refers to a judgment of a single Judge disposing of an appeal under Sec. 39(1) of the Arbitration Act. Finally, I may refer to the dicta in Ladli Prasad v. Karnal Distillery Co., Ltd., , with reference to Cl. 10 Letters Patent (Lahore); in brief, it was conceded during the arguments that there is no subsequent decision of the Supreme Court, taking the enunciation of the law further than what has been stated by their Lordships in Asrumati Debi's case, or attempting any further

resolution of the divergence of views between different High Courts.

(16) Apart from those decisions that I have already noted, there are several other decisions, holding one way or the other, upon analogous situations. Thus, in the other, upon analogous situations. Thus, in Brojo Gopal v. Amarchandra, AIR 1929 Cal 214 (FB), an order excusing delay under S. 5 of the Limitation Act and permitting the filing of an appeal was held not to be a 'judgment'. An order allowing application to restore a suit to file under Or. IX, R. 9, C.P.C., was not a 'judgment' : Tulsiram v. Sitaram, . An order setting aside an ex parte decree was not a 'judgment' : (FB). An order excusing the delay in filing an appeal is not a 'judgment': Vaijayantappa v. Anasuya Waman, AIR 1940 Bom 196. These decisions are not, however, directly significant, because of the four tests, three of them positive and the one negative, that I set for the earlier, and the logical fallacy, which is evident, in any argument from the particular to the general.

(17) The true force of the contrary view can, I think, be expressed in the following form. What is the nature of a proceeding for leave to sue in forma pauperis? If it is to be regarded as a composite, partly as a suit, since it is a plaint drafted as such, which includes a prayer for leave to sue, and partly as a preliminary proceeding, it will at once be obvious that the enquiry under Or. XXXIII, Rr. 5, 6 and 7, C.P.C., does not relate to the merits of the suit, but must be confined to the alleged pauperism, and the grounds of conceivable rejection of this. If so much is conceded, it would follow that, while an order declining leave to sue puts an end to the proceeding itself and also to the suit, an order granting leave to sue does not do so. It leads to the suit, and it can, hence, be regarded as forming an essential preliminary or adjunct to the suit, which has a life of its own after the registration of the plaint; further, it has to be carefully distinguished from orders in ancillary proceedings, like those granting an injunction or appointing a receiver, which may effectuate the decree. On this line of reasoning, such an order neither puts an end to the suit nor does it determine any right or liability in the suit itself. Hence, it is urged, this is into a 'judgment' within the meaning of Cl. 15 of the Letters Patent, on the application of the tests that I have earlier set forth.

(18) In may view, this is not a line of reasoning that can be accepted, for it overlooks both the essential character of the enquiry contemplated under Or. XXXIII, C.P.C., the mutual rights and liabilities involved in such an enquiry, and the other negative test, that, if a 'conceivable order' in the is or proceeding can effectually terminate it, even apart from the actual order complained of, that order must be held to constitute a 'judgment' within the meaning of Cl. 15 of the Letters Patent. It is no doubt true that certain decisions that were referred to, stress the aspect of the court-fee payable in the suit as primarily the concern between the State and the citizen; that may be so, in the context in which such observations were made, but it does not take away the fact that there is a very valuable right in issue as between a plaintiff attempting to sue a defendant in forma pauperis, and a defendant who urges that the plaintiff ought not to be so permitted to sue. On this aspect, I shall set forth my conclusions, with reasons, and show how the test stated by me must be held satisfied, even with regard to an order granting leave to sue in forma pauperis, just as an order declining leave to sue in forma pauperis, is indisputably, a 'judgment' within the meaning of Cl. 15, Letters Patent.

(19) In Salmond on "Jurisprudence", 11th Edn., page 270, will be found a table set forth by the learned Author, consisting of the entities Rights (stricto sensu), Liberties, Powers, Immunities, Duties, No-rights, Subjections and Disabilities. The four pairs of correlatives are arranged in two rectangles and the correlative of a right is duty or obligation. As I have earlier stressed, just as a right to sue in forma pauperis is very valuable right conferred upon a litigant, who has a lis but no means to pay the Court-fees, the liability to be sued in the Courts of the land, by a litigant who claims that he must be permitted to do so without paying the court-fee, is a very appreciable liability or obligation. It is for this reason that notice is enjoined upon the defendant, who is then permitted to show cause against the grant of leave, upon any of the grounds set forth in Or. XXXIII, R. 5, C.P.C.

Such a right is, indisputably, a very valuable right in that proceedings, and it is, in my view, a perfectly legitimate argument for a defendant, that he will not be sued in the Courts of the land, by a plaintiff who may take advantage of the provisions in forma payperis to bring forward an unconscionable, grossly exaggerated or frivolous claim of swollen magnitude, without himself (defendant) being fully heard why the plaintiff should not be granted this indulgence. If the decision is against the defendant, a valuable right of the defendant is clearly affected. Further, and this is very important, several of the grounds upon which the defendant can contest the claim, such as, the possession of means by the plaintiff at that time, the ground of a prior fraudulent conveyance, or the ground of an agreement in champerty, will no longer be available to the defendant, at any further stages of the suit and appeal; they are irretrievably decided against him, by the order of the learned single Judge.

The provision for dispaupering the plaintiff relate to a different contingency altogether, and are not her relevant. Nor, I think, can the argument be really made stronger for a contrary view, or by emphasising that an order granting leave to sue in forma pauperis does not put an end to the actual suit. That would be a legitimate criticism, if the proceeding under Or. XXXIII, C.P.C., has to be regarded either as composite with the suit, or merely preliminary to the suit. Thought it may not be an independent proceeding, in the strict sense, I think that these views are erroneous, and that it should be properly regarded as prefatory but distinct, involving a right a liability of it own. That is also the view which derives authority from Raj Narain Saxena v. Bhimsen, (FB), which held that an application for

permission to sue as a pauper, which is not granted, is not a plaint. With regard to the argument that court-fee is purely a matter between the State and the citizen, and does not concern any right of the defendant. I may point out that the judgment of the Supreme Court in Rathnavarmaraja v. Vimala, , which has been cited,

relates to the question of the proper court-fee payable on a plaint, with reference to the Madras Court-fees and Suits Valuation Act 14 of 1955, and does not at all impinge on the right of a defendant to contest, after notice, the claim of the plaintiff that he should be permitted to sue in forma pauperis.

It appears to me that, both from the nature of the proceeding and from the character of the right involved, it must be held that a valuable right and correlative liability is determined, as between the parties, in the enquiry under Or. XXXIII, C.P.C., that this is a distinct proceeding, not to be confused with the suit which may or may not follow, and hence that, on one important test, the order in such a proceeding would be a 'judgment' within the meaning of Cl. 15 of the Letters Patent, whether in favour of one party or the other. Finally, I may refer quite briefly to what I have termed the test of the 'conceivable order', based on the implied approval of the dicta of White, C. J., by their Lordships of the Supreme Court in Asrumati Deb's case, , and also on what appears to me to be the clear principle of jurisprudence. Where a right a liability between parties are correlatives involved in a particular lis, I find it difficult to conceive how the judgment of the Court could be a 'judgment' if decided in favour of one party, and not a 'judgment' if decided in favour of the other.

This, to may mind, has nothing to do with the question of appeal, for the appeal is clearly a creature of statute, and Or. XLIII, C.P.C., itself bears evidence that one kind of adjudication may be appealable, and another kind may not be. It may very well be that, by Legislative enactment, an order granting leave to sue in forma pauperis is not made appealable, just as several other kinds of orders such as an order under Or. IX, R. 9, C.P.C., etc., are not appealable in one contingency, though appealable in another. But the status of a 'judgment' cannot be symmetrical, and dependent upon the result, once it is conceded that in a distinct proceeding, a valuable right or liability as between the parties is being canvassed. What may be termed the opposite view of the test of the 'conceivable order', finds expression in certain English cases alone; they have been briefly noticed by Kania, C. J., in Kuppuswami Rao v. King, AIR 1949 FC 1. The decisions are: Saleman v. Warner, 1891-1 QB 734: Bozson v. Altrincham Urban Dt. Council, 1903-1 KB 547 an Isaacs & Sons v. Salbstein, 1916-2 KB 139.

These furnish the criterion of the expression 'final order', in the terms that, if the decision, whichever way it is given, will finally dispose of the matter in dispute, then alone it must be considered final, and not interlocutory. Both Lord Esher MR and FRY LJ affirmed this test. But I do not see how such a test can be applied to the adjudication of a single Judge, for the purpose of determining the status of such adjudication as a 'judgment' within the scope of Cl. 15 Letters Patent. In my view, the prior case-law affords clear authority for the position, that not merely the formal order that is sought to be assailed in appeal, but a 'conceivable order' which could have been made in the lis, should be regarded as the touchstone or test, within the meaning of Cl. 15. If such a 'conceivable order' could have put an end to the suit, and the order, in any event, does determine the right or a liability between the parties in a distinct proceeding, the order should be held to constitute a 'judgment'. It follows, that an order made by a learned single Judge granting leave to sue in form pauperis is a 'judgment' within the meaning of Cl. 15 Letters Patent. I would answer the reference accordingly.

(20) I must reiterate that it appears to me that, with regard to analogous situations, each instance must be decided on its merits, as it comes up for decision, and that, apart from formulating the tests, we should proceed no further in this direction even to express, by means of obiter dicta, approval or disapproval of the various decisions, some of which I have referred to earlier, relating to other situations or contexts.

Venkataraman, J.

(21) I respectfully agree with the conclusion reached by My Lord, the Chief Justice, but in view of the scope of the arguments before us and the importance of the question, I desire to add a separate judgment.

(22) The question referred to the Full Bench is whether an order granting leave to sue in forma pauperis by a single Judge of this Court is a judgment within the contemplation Cl. 15, Letters Patent. If it is a judgment an appeal will lie; otherwise not. The question has been posed because of conflict between two Bench judgments, but before considering that, I shall just indicate briefly how the question itself has arisen now.

(23) O.S.A. No. 64 of 1964 is an appeal filed against the decision of Sadasivam, J., confirming the order of the Master, and giving permission to the plaintiffs in the suit, C.S. No. 211 of 1962, on the file of this Court, to file the suit as paupers. The value of the claim is over Rs. 3,50,000 and the court-fee payable is over Rs. 26,000. The objections of the defendants were that the plaintiffs had the means to pay the court-fee and further that the suit was barred by the law of limitation and res judicata. The learned Judge found that some of the prayers in the plaint were barred by limitation, but, since the whole suit was not barred by limitation, the application for permission to sue could not be rejected under Order XXXIII R. 5(d-1), C.P.C., as framed by the court, which is to the effect that the Court shall reject an application for permission to sue as a pauper where the suit appears to be barred by any law, Shri G.N. Chari is the leading counsel for the appellants here.

(24) O.S.A. No. 7 of 1966 is an appeal against the order of Kunhamed Kutti, J., giving permission to the plaintiff to file the suit in forma pauperis. The learned Master had refused leave, but Kunhamed Kutti, J., granted leave. The contest is about the means of the plaintiff to pay to court-fee. The claim is for Rs. 5,00,000 and the court-fee payable is Rs. 36,500. Sri Mohan Kumaramangalam is the leading counsel for the appellant.

(25) L.P.A. No. 15 of 1966 is against the order of Venkatadri, J., passed in appeal against the order of the learned Subordinate Judge, Vellore, refusing permission to the plaintiff in that suit to file the suit as a pauper. The learned Subordinate Judge had rejected the application on the ground that the allegations did not show a cause of action (Or. XXXIII, R. 5(d), C.P.C.). Venkatadri, J., held that the allegations showed a cause of action and there being no other question in dispute at that stage, granted the permission. Mr. m. S. Venkatarama Aiyer is the leading counsel in this appeal.

(26) The only question involved in all these appeals is whether they are maintainable under Cl. 15, Letters Patent, and the arguments were addressed on the footing that the question was common for all the appeals. Cl. 15 so far as it is relevant, says:

"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras...........from the judgment of one Judge of the said High Court."

The question is whether the order in each case would amount to a judgment.

(27) In ILR 48 Mad 700 = (AIR 1925 Mad 167), Spencer, C. J., and Srinivasa Aiyangar, J., held that an order permitting the plaintiff in a suit of this Court to sue in forma pauperis was a judgment under Cl. 15, Letters Patent, and was appealable. Their reasoning is this:

"It is argued that the order of the learned Judge was merely an order upon an interlocutory application which was a step towards obtaining a final adjudication and that it does not finally dispose of the plaintiff's right to bring the suit, as it was always open to him to pay the court-fees and proceed. In our opinion the learned Judge's order was not an interlocutory one, and we think that the law confers a substantive right on every plaintiff who has a good case at law, but no means to prosecute it, to sue in forma pauperis, and we think, with due respect, that the view taken in (1903) ILR 26 mad 437, where such an order was treated as made in the exercise of a discretionary power, was not the correct view to take of the order passed upon such applications."

The learned Judges then pointed out that the principle of the decisions in (1903) ILR 26 Mad 437 was doubted in the Full-Bench decision in (1912) ILR 35 Mad 1 (FB), and that Or. XXXIII, R. 7, Cl. (3) which says, "The Court shall then either allow or refuse to allow the applicant to sue as a pauper", showed that it was not a matter for the discretion of the Court and that where, after bearing the evidence, the Court found that the plaintiff was a pauper, permission must necessarily be granted. They concluded:

"The final order of a Judge sitting on the Original Side allowing or refusing to allow a plaintiff to sue as a pauper is in our opinion, a judgment under Cl. 15, Letters Patent".

In , Ramachandra Iyer, C.J., and Ramakrishnan, J.,

held that the above decision must be deemed to have been overruled by the decision of the Supreme Court in . According to the learned Judges, the Supreme Court laid down two tests, (1) Whether the order or judgment of the single Judge terminates the suit or proceeding, and (2) whether it affects the merits of the controversy between the parties in the suit itself. They then proceeded to observe that neither of these tests could be said to be satisfied in a case where leave to sue in forma pauperis is granted. They observed, "The suit, far from getting terminated, by the order allowing the suit to be registered, really keeps the suit pending. The merits of the controversy between the parties also could not be said to have come for final determination in such proceedings". Referring to ILR 48 Mad 700 = (AIR 1925 Mad 167), they observed:

"With great respect to the learned Judges we would like to point out that there is a fundamental difference for the purpose of Cl. 15, Letters Patent, between a case where leave to sue in forma pauperis is refused and one where leave is granted. If leave were refused, the intended suit will not be on the file of the Court at all; in consequence, so far as the Court is concerned, there will be a termination of the proceedings. But where leave to sue is granted the position will be different. While, therefore, we agree with the learned Judges who decided that case that an order refusing to grant leave to sue in forma pauperis would be judgment, the same cannot follow in regard to an order granting leave."

It is because of this conflict that the question has been referred to the Full Bench. There is also an earlier decision of Rajamannar, C. J. and Ramachandra Iyer, J. (as he then was) in , where also, on the same reasoning it was held that the decision in ILR 48 Mad 700 = (AIR 1925 Mad 167) must be deemed to have been overruled by the decision of the Supreme Court.

(28) It will thus be seen that the all important question is the scope of the decision of the Supreme Court in (briefly

referred to hereinafter as Asrumati Debi's case). It is, therefore, necessary to consider that decision in great detail.

(29) In that case an application was made to the Calcutta High Court in the Original Side under Cl. 13 Letters Patent to transfer a particular suit in a Subordinate Judge's Court in West Bengal to the High Court to be tried in its extraordinary original civil jurisdiction. The application was granted by a single Judge. An appeal was filed under Cl. 15, Letters Patent to a Bench. The appeal was dismissed on the preliminary ground that the order appealed against was not a judgment within the meaning of Cl. 15 Letters Patent. It was against this appellate judgment that the appeal to the Supreme Court was preferred. Their Lordships of the Supreme Court agreed with the Bench of the Calcutta High Court in holding that the order of the single judge was not a judgment within the meaning of Cl. 15 Letters Patent.

(30) The judgment of their Lordships can be divided into two parts: In the first part, they point out the divergence of views on the meaning of the term "judgment" in Cl. 15 Letters Patent, between the Calcutta and the Madras High Courts on the one hand, and the Rangoon High Court on the other, and observe that on some occasion it might be necessary for them to examine which of these views is correct. But for the purpose of the immediate question before them it was not necessary for them to undertake that task, because even according to the wider definition of the Calcutta and the Madras High Courts the judgment of the single Judge on the application for transfer would not be a judgment.

(31) In the second part of their judgment they meet the contention of Mr. Chatterjee for the appellants based on some decisions where an order of a single Judge under Cl. 12 Letters Patent was held to be a judgment. Their Lordships point out the essential difference between an order under Cl. 12 and an order under Cl. 13. For the present I shall analyse the first part of the judgment of their Lordships.

(32) Their Lordships first of all refer to the test laid down by Sir Richard Couch, C.J. in the well-known case of (1872) 8 Beng LR 433. In that case the Oriental Gas Co. applied for a writ of mandamus directing the Justices of the Peace for Calcutta to join them in referring to a Judge of the Court of Small Causes, Calcutta, the determination of the amount payable as compensation to the Gas Co. for damage occasioned to their property by the drainage works and waterworks carried on by the Justices. Phear, J., issued the writ. Against that the Justices of the Peace appealed under Cl. 15 Letters Patent. It was in that connection that Sir Richard Couch, C. J. (sitting with Markby, J.) laid down the following test:--

"We think that 'judgment' in Cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. Both classes are provided for in Clauses 39 and 40 of the Charter. An order, such as that before us, which only authorizes a proceeding to be taken for the determination of the question between the parties, cannot be considered a judgment."

Their Lordships of the Supreme Court then refer to the following classical test laid down by Sir Arnold White, C. J. (sitting with Krishnaswami Aiyar and Ayling, JJ.) in (1912) ILR 35 Mad 1 (FB):

"The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding. I think the adjudication is a judgment within the meaning of the clause."

Lower down referring to the Calcutta case, Sir Arnold White, C.J., observes:

"On the other hand, I am not prepared to say as was held in (1872) 8 Beng LR 433 and in Sonbai v. Ahmedbhai Bahibhai, (1872) 9 BHCR 398, it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding."

(33) Krishnaswami Aiyar, J., was also of the same view, and pointed out, at page 15:

"I would only stop here to remark that a decision which determines the cause or proceeding so far

as the particular Court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment, for otherwise the rejection of a plaint for defect of form or insufficiency of court-fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning."

As against these views, a Full Bench of the Rangoon High Court, presided over by Page, C.J. in ILR 13 Rang 457 = (AIR 1935 Rang 267) (FB) laid down a narrow test that "the term 'judgment' in a Letters Patent means and is a decree in a suit by which the rights of the parties in the suit are determined."

(34) It will have been noted that both Sri Arnold White, C. J. and Krishnaswami Aiyar, J., pointed out that for an order to be a judgment there need not be a decision on the merits of the suit; it is enough if the suit is put an end to. That is why Krishnaswami Aiyar, J., cites the instances of a rejection of a plaint for defect of form, and other instances. Actually it will be interesting to note that Sir Richard Couch, C. J., himself concedes that an order rejecting a plaint as insufficient will be a judgment according to his definition, because it determines finally so far as the Court which makes the order is concerned that the suit as brought will not lie. It is better to quote the following passage which occurs immediately after the passage already quoted:--

"It is, however, said that this Court has already put a wider construction upon the word 'judgment' in Cl. 15 by entertaining appeals in cases where the plaint has been rejected as insufficient, or as showing that the claim is barred by limitation, and also in cases where orders have been made in execution. These, however, are both within above definition of a judgment, and it by no means follows that, because we hold the order in the present case not to be appealable, we should be bound to hold the same in the case referred to. For example, there is an obvious difference between an order for the admission of a plaint and an order for its rejection. The former determines nothing, but is merely the first step towards putting the case in a shape for determination. The later determines finally so far as the Court which makes the order is concerned that the suit, as brought, will not lie. The decision, therefore, is a judgment in the proper sense of the term."

(35) Their Lordships of the Supreme Court referred to this last-mentioned passage and observe that is showed that Couch, C. J., also thought that an adjudication, in order that it might rank as a 'judgment' need not decide the case on its merits, but it must be the final pronouncement of the Court making it, the effect of which is to dispose of or terminate the suit or proceeding. Their Lordships also pointed out that, according to Sir Richard Couch, every judicial pronouncement on a right or liability between the parties could not be regarded as a judgment, for in that case there would be any number of judgments in the course of a suit or proceeding, each one of which could be challenged by way of appeal. The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability though it may not be necessary that there must be a decision on the merits. Their Lordship of the Supreme Court then proceed to observe:

"This view which is implied in the observations of Sri Richard Couch, C.J., quoted above, has been really made the basis of the definition of 'judgment' by Sir Arnold White, C. J. in the Full Bench decision of the Madras High Court to which reference has been made, (1912) ILR 35 Mad 1 (FB). According to White, C. J., to find out whether an order is a 'judgment' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceeding, the decision would be a 'judgment' but not otherwise. As this definition covers not only decisions in suits or actions but 'orders' in other proceedings as well which start with applicants, it may be said that any final order passed on an application in the course of a suit, e.g., granting or refusing a party's prayer for adjournment of a suit or for examination of a witness, would also come within the definition. This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that 'an adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of the Letters Patent."

It is obvious that the order of a single Judge on an application for transfer under Cl. 13 Letters Patent will not be a judgment according to the strict definition of the Rangoon High Court. Their Lordships of the Supreme Court point out that it would not be a judgment even according to the wider definition of the Calcutta and Madras High Courts. It is necessary to quote the reasons given by their Lordships in that connection:

"The question that requires determination in an application under Cl. 13 Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court and tried and determined by the latter as a Court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the Court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a 'judgment'. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to be Couch, C. J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amount to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order or rejection. On the other hand, an order of transfer under Cl. 13 Letters Patent is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter to be taken only from the stage at which they were left in the Court in which the suit was originally filed."

(36) This exhausts for the present the analysis of the first part of the judgment of their Lordships of the Supreme Court. It is now necessary to focus our attention on the second part of the judgment. It may be quoted in full:--

"Mr. Chatterjee in the course of his arguments placed considerable reliance upon the pronouncement of the Calcutta High Court in (1874) 13 Beng LR 91 where it was held by Couch, C. J., and Pontifex, J., that an order refusing to rescind leave to sue granted under Cl. 12 Letters Patent was a 'judgment' under Cl. 15 and could be challenged by way of appeal. This decision was followed by the Bombay High Court in (1905) ILR 29 Bom 249; and it is argued by Mr. Chatterjee that there is no difference in principle between an order of that description and an order transferring a suit under Cl. 13 Letters Patent. The contention of Mr. Chatterjee undoubtedly receives support from the judgment of the Madras High Court in ILR 47 Mad 136 = (AIR 1924 Mad 90), where precisely the same line of reasoning was adopted. In our opinion, this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under Cl. 12 Letters Patent and one removing a suit from a subordinate Court to the High Court under Cl. 13 Letters Patent, and this distinction would be apparent from the observations of Sir Arnold White, C.J., in the Madras Full Bench case, (1912) ILR 35 Mad 1 (FB) mentioned above, to which sufficient attention does not appear to have been paid by the learned Judges of the same Court who decided the later case. Referring to the decision of the Bombay High Court in (1905) ILR 29 Bom 249, White C. J., observed as follows:

'As regards the Bombay authorities I may refer to (1905) ILR 29 Bom 249, where it was held 'that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Cl. 12 of the Letters Patent should not be rescinded and the plaint taken off the file'. Her the adjudication asked for, if made, would have disposed of the suit. So also would an order made on an application to revoke a submission to arbitration. I think such an order is appealable'.

"Leave granted under Cl. 12 Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made dismissing the Judge's summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out, (1905) ILR 29 Bom 249, that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the Court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state there is a difference between an order refusing to rescind leave granted under Cl. 12 Letters Patent and one under Cl. 13 directing the removal of a suit from one Court to another, and there is not good reason to hold that the principle applicable to one applies to the other also."

(37) Before proceeding further, it will be useful further to refer in brief to the decisions in (1874) 13 Beng LR 91 and (1905) ILR 29 Bom

249. In the first case Macpherson, J., had refused to revoke the ex parte leave granted under Cl. 12 Letters Patent to the plaintiff to file the suit in the Calcutta High Court against the defendants who were residing in Bombay. It was held that the order was appealable under Cl. 15 Letters Patent. At page 101 it was observed:

"It is of great importance to the parties. It is not a mere formal order, or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between them viz., the right to sue in a particular Court, and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence."

(38) (1905) ILR 29 Bom 249 was exactly a similar case, where the suit was about the title to a certain talo (water course) situated beyond the local limits of the High Court's jurisdiction. The plaintiffs obtained ex parte leave under Cl. 12 Letters Patent to file the suit in the High Court of Bombay. The defendants took out an application for rescinding it. They contended that the suit was for land within the meaning of Cl. 12 Letters Patent, and because it lay outside the limits of the High Court's jurisdiction the suit could not be laid in the High Court. Russel, J., held that the suit was not one for land. Against that decision the defendants appealed. The learned Judges held that an appeal lay under Cl. 15, Letters Patent and that the suit was for land and allowed the appeal. The reason for saying that the appeal lay was thus expressed:

"From the note of his judgment it is apparent that on the question whether the suit was one for land, Mr. Justice Russel has decided adversely to the defendants, so that the dismissal of a summons has (so far as Mr. Justice Russel is concerned) become decisive against the defendants. It thus falls within the rule laid down in (1874) 13 Beng. LR 91."

(39) Now, the foundation for the learned Judges of this Court saying in , and the earlier case in

, that the following two tests have been laid down

by the Supreme Court, Viz., (1) whether the order or judgment of the single Judge terminates the suit or proceeding, and (2) whether it affects the merits of the controversy between the parties in the suit itself, seems to be the following sentence which occurs at page 1167 in Asrumati Debi's case. : "The order in the

present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground."

(40) Before proceeding to examine the validity of the distinction made in between an order refusing permission to sue as a pauper and an order granting the permission, it is necessary to examine the juristic basis of the reason for holding that an order refusing permission to the plaintiff to file the suit as a pauper is a judgment within the meaning of Cl. 15 Letters Patent, and is appealable. The reason given in is that if leave is refused, the

intended suit will not be on the file of the Court at all; in consequence, so far as the Court is concerned, there will be a termination of the proceedings. Here it will be necessary to dwell at some length upon the character of an application filed under Or. XXXIII, C.P.C., for permission to file the suit as a pauper. There is, if I may say so with respect, a very helpful discussion of the point in a recent Full Bench decision of the Allahabad High Court (FB).

(41) Section 26, C.P.C., was "every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed". Order XXXIII, Rule 1, says: subject to the following provisions, any suit may be instituted by a pauper--Explanation (i) A person is a pauper (a) when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or (b) where no fee is prescribed when he is not entitled to property worth one hundred rupees other than his wearing apparel and the subject-matter of the suit;

Rule 2 says that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits; a schedule of any moveable or immoveable property belonging to the applicant, with the estimated value thereof, shall be annexed the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

Rule 5 says that the Court shall reject an application under one or the other of the contingencies mentioned therein.

Rule 6 says that where the Court does not reject the application under Rule 5, it shall give notice to the Government and to the opposite party.

Rule 7 provides for enquiry into the question whether the applicant is not subject to any of the prohibitions specified in Rule 5. The Court shall at the end of the enquiry either allow or refuse to allow the applicant to sue as a pauper.

Rule 8 says that where the application is granted it shall be numbered and registered and shall be taken to be the plaint in the suit, & the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

Rule 15 says that an order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that he first pays the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as a pauper.

(42) It is clear from the provisions of S. 26 and O. XXXIII, C.P.C., that suit instituted in the manner described under O. XXXIII by a pauper will come within the definition of "in such other manner as may be prescribed" occurring in the latter half of S. 26, C.P.C. In other words, a suit presented by a pauper under the provisions of O. XXXIII, cannot be said to be a suit instituted by the presentation of a plaint, because a plaint has to bear court-fee under the Court-fees Act, and if it does not bear the necessary court-fees, it cannot be received as a plaint, because of the provisions of the Court-fees. It is to get over that provision of the Court-fees Act, a pauper is allowed to institute the suit otherwise than by the presentation of the plaint and in the manner laid down under O. XXXIII. It may be noted that O. XXXIII, Rule 8, says that only where the application for permission to sue as a pauper is granted, it shall be deemed to be a plaint in the suit, and not till than. The explanation to S. 3 of the Limitation Act says that a suit is instituted, in the ordinary case, when the plaint is presented t the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made. That again leave to sue as a pauper is made. That again emphasises the idea that though a suit may be deemed to be instituted even when the application to sue as a pauper is made, there is no plaint as such till the permission to sue as a pauper is granted.

(43) The Full Bench decision of the Allahabad High Court points out all this and says that the decisions which have proceeded on the basis that ancillary or incidental procedure like appointment of receiver, adding of parties and substitution of legal representatives of a deceased defendant, all of which are permissible even in a suit institute din the manner prescribed by O. XXXIII, could well be explained on the basis that though there is no plaint as such till permission is granted by the Court under O. XXXIII, Rule 7, the suit itself comes into existence, even when the application for permission to sue as a pauper is made, and that it is not necessary to invoke the fiction or theory that an application for permission to sue as a pauper is a composite document consisting of a plaint plus an application for permission.

(44) But as against these weighty reasons, there is the fact that the Privy Council has, in the leading case of Stuart Skinner v. William Order, (1878-80) ILR 2 All 241 (PC), after referring to S. 300, C.P.C. (Act VIII of 1859) corresponding to O. XXXIII, Rule 2 of the present Code, observed:

"Therefore it contains in itself all the particulars the statute requires in a plaint, and, plus these, a prayer that the plaintiff may be allowed to sue in forma pauperis."

That was a case, where during the pendency of the enquiry into the pauperism of the plaintiff, the plaintiff in order to avoid further delay, raised funds and paid the court-fee; and the question arose whether limitation ran only upto the date of the presentation of the application for permission to sue as a pauper (in which case the suit was within time), or whether it ran upto the date of the payment of the court-fee. It was in that connection that their Lordships observed that the intention of the Act VIII of 1859 was that unless the petition was rejected, as it contained all the materials of the plaint, it should operate as a plaint without the necessity of filing a new one and that limitation stopped even with the presentation of the petition for permission. The learned Judges of the Full Bench of the Allahabad High Court have interpreted this decision of the Privy Council as deciding only the question of limitation and as not an authority for describing the application for permission as a plaint. In support of that explanation it may be pointed out that their Lordships of the Privy Council do not specifically refer to the provisions in Act VIII of 1859 corresponding to O. XXXIII, Rule 8 of the present Code that the application when granted shall be deemed to be the plaint in the suit, suggesting that till then, it does not become a plaint as such, though it contains the particulars of the plaint.

(45) In Brahmaramba v. Seetharamayya ILR (1947) Mad 820 = (AIR 1947 Mad 405), however, Leach, C.J., and Lakshmana Rao, J., interpreted the Privy Council decision as laying down that an application for permission to sue is, in fact, a plaint coupled with a prayer to allow to sue without payment of the required court-fee. But it is really unnecessary for the purpose of the question before us to say whether that is correct or whether the plaint comes into existence only when the permission to sue as a pauper is granted, or in the event of the refusal of the permission, when the plaintiff affixes the necessary court-fee within the time granted under S. 149, C.P.C., by the Court. It may be noted that while as pointed out by Leach, C.J., and Lakshmana Rao, J., the practice of the Madras High Court has been uniformly to give time to the plaintiff to affix the requisite court-fee in the case of a refusal to grant permission to sue as a pauper some of the other High Courts have held that there is no jurisdiction for the Court to give such time.

The consequence will be vital so far as the question of limitation is concerned, because if time is granted under S. 149, C.P.C., a fresh suit will have to be filed subject to the law of limitation, and the plaintiff cannot have the benefit of the retrospective operation of S. 149, C.P.C., on the question of limitation. Notwithstanding all these differences, it is enough for the purpose of the present discussion to observe that, where permission to sue as a pauper is refused, the suit instituted in the manner prescribed under O. XXXIII comes to an end. it may be that even after refusal of the permission, on the Court granting time to the plaintiff under S. 149, C.P.C., he is able to find the money necessary for paying court-fees by borrowing or otherwise. But there can be no doubt that the suit as instituted in the manner prescribed under O. XXXIII comes to an end, at least momentarily, on the refusal of the permission to sue as a pauper.

Even in the case of High Courts like ours, where the normal practice is to grant time under S. 149, C.P.C., to the plaintiff for payment of the court-fee, the suit is kept alive only because of the order of the Court, and otherwise it came to an end with the refusal of the permission to sue. If this reasoning is not correct, in other words, if it cannot be said that the suit as instituted in the manner prescribed by O. XXXIII came to an end with the refusal of the permission to sue as a pauper, the reason given by Ramachandra Iyer, C.J., and Ramakrishnan, J., in , for saying that in the case of refusal of the permission to sue as a pauper, the intended suit will not be on the file of the Court at all, and there will be a termination of the proceedings, would not be correct.

This can be pointedly explained by taking those cases where after refusal of the permission the Court grants time to pay to court-fee and the plaintiff pays it and the plaint is registered. The remark of the learned Judges that the suit comes to an end with the refusal of the permission must apply even to such cases, and if so, it could apply only on the footing that the suit came to an end on the refusal of the permission in the sense that the suit brought as a pauper under O. XXXIII came to an end. I seems to us that, apart from the reason indicated by me that in the case of a refusal of permission to sue in forma pauperis, the suit instituted in the manner prescribed by Order XXXIII comes to an end with that refusal, there can be no other reason for the observation of the learned Judges that in such a case, the intended suit will not be on the file of the Court at all, and there will be a termination of the proceedings.

It is implicit in this reason that the application for permission to sue as a pauper is not a mere step towards obtaining a final adjudication in the suit, for, it were so, the adjudication on that application would not be a judgment within the meaning of Cl. 15 of the Letters Patent, according to the criterion of Sir Arnold White, C. J., in (1912) ILR 35 Mad 1 (FB) which criterion has really not been departed from so far. If the application for permission were a mere step towards obtaining a final adjudication, just like an application for adjournment or an application to examine a particular witness or to appoint a Commissioner, the order refusing the application would not be an appealable judgment at all. The law recognizes that a pauper plaintiff has a substantial right to institute a suit without paying court-fee, but where permission is refused, it puts an end to that right. In the majority of cases, the pauper plaintiff cannot raise funds for paying the court-fee; but even if he is able to raise the money if will obviously be a different kind of suit, and the suit instituted as a pauper would come to an end.

(46) It may be taken that the Supreme Court has approved of the above kind of termination of the suit instituted by a pauper plaintiff as a criterion for appealability under Clause 15 of the Letters Patent for, in the first place, apart from referring to the criterion of the termination of the proceeding laid down by Sir Richard Couch, C. J., and Sir Arnold White, C. J., their Lordships of the Supreme Court themselves have adopted the test by pointing out that an order for transfer of a suit to the High Court does not put an end to the suit and therefore the order for transfer is not a judgment within the meaning of Cl. 15 of the Letters Patent. That is how they distinguish an order for transfer of a suit and the order rejecting a plaint or an order dismissing the suit on a preliminary ground.

(47) Secondly, in the second part of the judgment they point out that where leave granted under Cl. 12 Letters Patent is rescinded, "the suit automatically comes to an end, and there is no doubt that such an order would be a judgment".

(48) The question then arises whether the learned Judges who decided are right in the distinction they make between a case where leave to sue in forma pauperis is refused and a case where leave to sue in forma pauperis is granted. They observe that in the latter case, the suit far from getting terminated by the order allowing the suit to be registered, is really keep pending. That is also the reason given in . With the greatest respect to the eminent Judges and the learned counsel who appeared in those cases, it does not appear that the test discussed in the second part of the judgment of their Lordships of the Supreme Court was brought to the notice of the learned Judges. For the sake of convenience, that test may be called the "conceivable order test" adopting the felicitous phraseology of my Lord (It may be also called the 'alternative order test'). Breifly, the point is that the order granting permission to sue in forma pauperis is also appealable, because if the order had been made the other way, it would have disposed of the suit brought under O. XXXIII, C.P.C.

(49) In developing this point, we may first examine how far their Lordships of the Supreme Court themselves have approved of the test. I am tackling that question, first, because the contention of Sri M. S. Venkatarama Aiyar, learned counsel appearing in L.P.A. No. 15 of 1956 is indeed that that test has received the tacit, if not explicit, approval of their Lordships and the primary reason for the contention is that in quoting the passage in the judgment of White. C. J., with reference to the decision of the Bombay High Court in (1905) ILR 29 Bom 249, their Lordships of the Supreme Court have italicised the following sentence: "Here the adjudication asked for, if made, would have disposed of the suit", which had not been italicised by Sir White C. J. himself (instead of italics, I have underlined (here in ") the portion). I am, however, not disposed to accept this contention of the learned counsel. In my opinion, the italicisation was made by their Lordships of the Supreme Court merely to emphasise the distinction between the nature of an order refusing to rescind leave granted under Clause 12 and the nature of an order for transfer of a suit from the subordinate Court to the High Court under Clause 13 Letters Patent.

The distinction is this, that an order refusing to rescind leave under Clause 12 Letters Patent is appealable according to the decision in (1874) 13 Beng LR 91 and (1905) ILR 29 Bom 249, as explained by White C. J. on the ground that the adjudication asked for, if made, would have disposed of the suit. in other words, the revocation of the leave to sue under Cl. 12 asked for, if made, would have disposed of the suit. But in the case of an application for transfer of a suit from one Court to another, an order either way would not dispose of the suit at all. If the order for transfer is not made, it would keep the suit in the Court itself; if the transfer is made from that Court (A) to another (B), their Lordships pointed out that the suit would still be pending and would have to be carried on in the Court (B) from the stage at which it was left in the Court (A).

Their Lordships refer to this distinction merely to point out that Mr. Chatterjee for the appellants could not invoke the aid of (1874) 13 Beng LR 91 and (1905) ILR 29 Bom 249, in respect of an application for transfer under Clause 13 Letters Patent; and, in my opinion, it cannot be said that their Lordships themselves approved the 'conceivable order test' as explained by White C. J., either explicitly or implicitly. For, after referring to the "conceivable order test" (at page 1169), they say "we need not express any final opinion as to the propriety or otherwise of this view". This has to be contrasted with their definite pronouncement that where leave granted under Clause 12 Letters Patent is rescinded "the suit automatically comes to an end and there is no doubt that such an order would be a judgment".

When, in the next two sentences they refer to an order of refusal to rescind leave granted under Clause 12, they only observe that according to Sir Lawrence Jenkins, that is a decision on a vital point adverse to the defendant, which goes to the very root of the suit and therefore becomes final and decisive against him so far as the Court making the order is concerned, and that would be an appealable judgment as laid down in the Calcutta cases. If they themselves meant to approve of that test, they would not have added the sentence "We need not express any final opinion as to the propriety or otherwise of this view". But it is permissible to remark that their Lordship have not definitely disapproved of the 'conceivable order test', really that aspect of the matter has been left open by their Lordships in Asrumati Debi's case, . That does not mean, however, that the 'conceivable order test' is not valid. That is really the juristic basis of the decisions in (1874) 13 Beng LR 91 and (1905) ILR 29 Bom 249, as explained by White C. J. in (1912) ILR 35 Mad 1 (FB).

(50) No decision has been brought to our notice throwing doubt on the correctness of that principle. Even the decision in (FB), which the two Bench decisions under discussion follow, does not throw any doubt on the correctness of that principle. The principle is not specifically referred to in the judgment of the three learned Judges who composed the Full Bench in (FB). But the learned Judges definitely say in more than one place that they adhere to the tests laid down in (1912) ILR 35 Mad 1 (FB), and do not intend to depart from them in any manner; and as we have seen the "conceivable order test" has been laid down by the judgment of White C. J. in (1912) ILR 35 Mad 1 (FB). Apart from this, Govinda Menon J. (at pp. 1071 and 1072) (of ILR Mad) = (at p. 1062 of AIR), refers with approval to the Full Bench decisions of the Lahore High Court in Shaw Hari Dial and Sons v. Sohna Mal Beli Ram, ILR (1942) 23 Lah 491 = (AIR 1942 Lah 95 (FB)). This must be taken to be an implied approval by Govinda Menon J. of the "conceivable order test". To explain this, it is necessary to state that the Lahore Full Bench case was one where a mofussil Court at Wazirabad in the State of Punjab trying a suit, held that it had no jurisdiction to hear the suit and that the suit could only be instituted in Madras. On that ground it returned the plaint for presentation to the proper Court. On appeal by the plaintiff a single Judge of the Lahore High Court held that the Wazirabad Court had jurisdiction. Against that an appeal was preferred to a Bench of the Lahore High Court under Clause 15 of the Letters Patent. The question of appealability came up before a Full Bench. The learned Judges held that an appeal lay, following the decision in (1874) 13 Beng LR 91. Dalip Singh J. emphasised that Sir Richard Couch C. J. who had himself been responsible for the earlier definition in (1872) 8 Beng LR 433, Laid down the test in (1874) 13 Beng LR 91, in the passage already quoted. Dalip Singh J. went on to observe:--

"I conclude from this that the author of the definition which has been accepted, whether actually or formally, by the Calcutta High Court, considered that an order determining the forum of the Court in which the suit was to be tried was an order affecting the rights and liabilities of the parties in the suit. This is exactly the case in the present circumstances".

Govinda Menon J. approves of this and says-

"It does not require much of logitics and calculation to distinguish between a case where a final decision is arrived at, that a particular Court is competent to entertain a plaint (and) thereby putting the seal of finality upon the jurisdiction of the Court, and an instance in which the trial of a suit is stayed pending disposal of an action on a similar matter elsewhere".

That is how the decision of the Full Bench of the Lahore High Court was distinguished by Govinda Menon J. in the case before him in which the question involved was whether the order of Krishnaswami Nayudu J. staying the suit, C.S. No. 356 of 1950 (Mad) on the Original Side of this Court, pending disposal of a suit on the file of the City Court, Bombay, on an application under Section 10 C. P. C. by the defendants in the suit on the Original Side, was a judgment liable to appeal under Clause 15 Letters Patent. The actual decision was that the decision of Krishnaswami Nayudu J. was not a judgment.

(51) Chandra Reddy J. who was one of the judges composing the Full Bench approves and distinguishes the decision in (1874) 13 Beng LR 91: Vide page 1094 (of ILR Mad) & (of page 1068 of AIR). At pages 1097 and 1098 (of ILR Mad) = (at p. 1069 of AIR), Chandra Reddy J. observes-

"It is stated by the Supreme Court that ILR 47 Mad 136 = (AIR 1924 Mad 90), missed the essential difference between an order rescinding or refusing to rescind leave to sue granted under Clause 12 Letters Patent and withdrawing a suit from a Subordinate Court to the High Court under Clause 13 Letters Patent, which distinction was kept in view in (1912) 35 Mad 1 (FB)".

This again may well be construed as an implied, if not direct, approval of the 'conceivable order test' laid down in (1912) 35 Mad 1 (FB) by White C. J. because that is how White C. J. explains the appealability of an order refusing to rescind leave to sue granted under Clause 12 Letters Patent. It was, however, apparently not necessary to invoke the 'conceivable order test' more specifically for deciding the appealability of the order of Krishnaswami Nayudu J. staying the suit under Section 10 C. P. C., and that is presumably why there was no further specific discussion of that test. Unfortunately, however, a small mistake has crept into the judgment of Govinda Menon J. at page 1060 in summarising the decision of the Supreme Court in Asrumati Debi's case , with reference to the appealability of an order refusing to rescind leave to sue granted under Clause 12 Letters Patent. The actual sentence is "It also held that an order refusing to rescind leave to sue granted under Clause 12 Letters Patent was not a judgment under Clause 15 Letters Patent and disapproved the observations contained in ILR 47 Mad 136 = (AIR 1924 Mad 90). The word "not" is clearly a mistake, and cannot prevail as against the discussion of the learned Judge himself at page 1072 approving and distinguishing the Full Bench decision of the Lahore High Court in ILR (1942) 23 Lah 491 = (AIR 1942 Lah 95 (FB)).

(52) Thus, in short, the Full Bench decision in (FB), also may be taken to have approved of the "conceivable order test".

(53) It now remains only to consider whether the "conceivable order test" will apply to a case where a single Judge of this Court has granted permission to a pauper plaintiff to file the suit in forma pauperis. I have no doubt that the "conceivable order test" can and must be applied, because the essence of the test is that if the order had been made the other way, it would it have put an end to the suit, and I have shown that if the order had been made the other way (refusing permission to sue in forma pauperis) it would have put an end to the suit as instituted in the manner prescribed under Order XXXIII. That is the real juristic basi for holding that an order refusing permission to sue in forma pauperis is appealable. I have also shown, in that connection, that the application for permission to sue in forma pauperis is not a mere step towards obtaining the final adjudication in the suit within the meaning of the classical test laid down by White C. J.

I have pointed out, in that connection, that, if it were merely a step towards obtaining the final adjudication in the suit, like an application for adjournment or an application to send for some documents, even the order dismissing the application would not be appealable under Clause 15. But it is a matter of concession that the order refusing permission is appealable. If an application for permission to sue in forma pauperis cannot be considered merely a step towards obtaining the final adjudication in the suit, when an order is passed dismissing the application, logically we cannot say that the application changes its character and would be merely a step towards obtaining the final adjudication in the suit, when an order is made allowing the application. But just to emphasise that this is not a mere technical formula or legal jugglery of words, I think it is proper to emphasise the juristic and substantial basis underlying this criterion of the appealability of an order granting permission to sue in forma pauperis.

Just as it is a valuable right for a pauper plaintiff to be allowed to institute the suit as a pauper, it is

an equally valuable right for the defendant in the suit to ask for a direction from the Court to dismiss the application, if he can show that the plaintiff has really the means to pay the Court-fee. Normally the plaintiff must pay the Court-fee prescribed; otherwise the plaint will not be received. But to avoid hardship to a pauper plaintiff, the law allows him the privilege of instituting the suit as a pauper, provided he proves his pauperism. But it is an equally valuable right for the defendant to show that the plaintiff is possessed of the means to pay the Court-fee and should not be allowed to sue as a pauper, and must fight him on equal terms. That is how the Privy Council describes the situation, as it arose, when the plaintiff paid the Court-fee during the pendency of the application for permission to sue in forma pauperis, in the leading case already quoted, namely, (1878-80) 2 All 241 (PC). At page 250 they say-

"The defendant, so far from being a sufferer by that change, is benefited, as both parties will go on with the litigation on equal terms".

Payment of Court-fee is itself a deterrent to an inflated or untenable claim. If the defendant is able to establish that the plaintiff has the means to pay the Court-fee the plaintiff may well hesitate to persist in the claim by paying the necessary Court-fee, particularly where the claim is very large. The plaintiff may at least reduce the claim. It is no consolation to the defendant to tell him that if the claim is ultimately shown to be frivolous in the trial of the suit a decree for costs would be passed in his favour. There is no reason why the defendant should go through the ordeal of an elaborate trial, if he can stop it at an early stage by requiring the plaintiff to pay the necessary Court-fee. I think it is unnecessary to labour further the point that right of the defendant to resist the claim of the plaintiff for permission to sue as a pauper is a valuable right; that is why the Legislature has permitted the defendant to oppose the application. It will only be in consonance with that intention of the Legislature to permit an appeal to the defendant where he feels that he has been deprived of this valuable right by the wrong judgment of a single Judge.

(54) Sri N.C. Raghavachari and Sri K.N. Balasubramaniam appearing for the respondents in the appeals (plaintiffs in the different suits) cited the decision of the Supreme Court in , where

their Lordships observed:

"Whether proper Court-fee is paid on plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court-fee paid by the plaintiff the defendant may feel aggrieved, it is difficult to appreciate".

That was a case where the High Court acting under Section 115 C. P. interfered with order passed by a subordinate Court about the quantum of Court-fee and remitted the matter for further enquiry. Their Lordships set aside the order. Referring to Section 12 Court-fees Act, their Lordships pointed out that that section only enabled the defendant to raise a contention as to the proper Court-fee payable on a plaint and to assist the Court in arriving at a just decision on that question, and did not clothe the High Court with power to interfere with the order of the lower Court at the instance of the defendant. Actually in that case, because of the contest raised by the defendant on the quantum of Court-fee, the trial of the suit on the merits had been effectively frustrated for nearly five years. Their Lordships pointed out that the provisions of the Court-fees Act did not arm the defendant with a weapon of technicality to obstruct the progreass of the suit by approaching the High Court in revision.

(55) It seems to me, however, that these observations, which relate to the adequacy of the Court-

fee, cannot invalidate the considerations which I have outlined above to show that the defendant's right to show that the plaintiff is not a pauper and must be required to pay Court-fee is (Sic) a valuable right which can be pursued in appeal also under Clause 15, Letters Patent. The defendant may not have a right to question the adequacy of the Court-fee beyond the trial Court but where there is no dispute about the quantum of the Court-fee or the trial Court has determined that quantum, there is no reason why the defendant should not be allowed to take up in appeal under Clause 15 the question that the plaintiff has the means to pay the determined Court-fee and should not be allowed to sue as a pauper. As I have pointed out, if the defendant succeeds in the appeal, the plaintiff may not be prepared to persist in the suit paying a heavy Court-fee and may reduce the claim, or may even abandon it.

If the right of the defendant under Cl. 12 Letters Patent to have the ex parte leave to sue rescinded is a valuable right capable of being agitated in appeal under Clause 15 Letters Patent, I think there is all the more reason on principle why the order of a single Judge allowing the plaintiff to sue as a pauper should be capable of being appealed against under Cl. 15. In the case under Clause 12 the plaintiff has paid the Court-fee and he is only trying to sue in a wrong forum. But in the case of an application for permission to sue as a pauper the plaintiff has not paid the Court-fees, and if asked to pay the court-fee, as a result of the appellate decision, he may not be willing to pay the court-fee, and the intended suit may either be abandoned or reduced in its quantum. From this point of view, the right of the defendant to resist an application for permission to sue as a pauper seems to me to be even on a higher footing than his right to have the leave to sue rescinded under Clause 12 Letters Patent.

(56) Sri N. C. Raghavachari has cited a decision of the Rangoon High Court in AIR 1926 Rang 110, where also it was held that an order of the single Judge on the Original Side of the High Court allowing the plaintiff to file the suit in forma pauperis was not a judgment, within the meaning of Clause 13 Letters Patent of that Court (corresponding to our Clause 15) and was not appealable. Referring to ILR 48 Mad 700 = (AIR 1925 Mad 167), the learned Judges observed that the right conferred on the plaintiff to sue as a pauper is not a right against which the defendant is interested except indirectly, and added that, "such an order relates to the institution of the suit and affects only the right of the Government to get Court-fees. No controversy between the plaintiff and the defendant in respect of any right claimed in the suit can possibly arise until the plaint is admitted".

But the observations which I have made distinguishing the case of the Supreme Court, , will apply here equally. The learned Judges of the Rangoon High Court also referred to two decisions of the Allahabad High Court in (1898) 21 All 133 (FB) and Mumtazan v. Rusulan, (1901) 23 All 364. But those were cases where the order was passed by a Subordinate Judge and not by a single Judge of the High Court, and the question of appealability arose under the provisions of then Civil Procedure Code, and therefore they are not relevant for the discussion under Clause 15 Letters Patent. It may be added that this decision of the Rangoon High Court, as well as the next decision cited by Mr. N. C. Raghavachari in S. M. Mitra v. Corporation of the Royal Exchange Assurance, AIR 1930 Rang 259, were before the decision of the Full Bench of seven Judges in ILR 13 Rang 457 = (AIR 1935 Rang 267) (FB), rendered in 1935, which is the decision noticed by the Supreme Court and wherein it was held that the judgment under the Letters Patent has the same meaning as a decree in the Civil Procedure Code.

(57) AIR 1930 Rang 259 was a case where the Receiver of an insolvent estate applied for permission to sue as a pauper. The permission was refused by a single Judge of the High Court. The Receiver preferred an appeal. It was held that an appeal lay. But on the merits, it was held that the privilege to sue in forma pauperis was a personal one and could not be invoked by the Receiver. In the course of the judgment, however, Heald Ag. C. J. observed that where permission to sue as a pauper was granted, an appeal would not lie, because its effect was not to put an end to the suit, and the learned Judge said that ILR 48 Mad 700 = (AIR 1925 Mad 167), was wrongly decided. For the reasons already given, I would respectfully disagree.

(58) The only other decision cited by Mr. N. C. Raghavachari where it was held that the decision of a single Judge of the High Court allowing the plaintiff to sue as a pauper was not judgment under Clause 15 Letters Patent, is that of the Bombay High Court in , a decision of Beaumont C. J. and Chagla J. The point is thus discussed by Beaumont C. J. at page 320--

"But then there is the preliminary objection that no appeal lies. This Court held in 32 Bom LR 1647 = AIR 1931 Bom 166, that against an order refusing leave to sue as a pauper a right of appeal did lie under Cl. 15 Letters Patent, because the effect of the order is to deprive the applicant of the right given to him under Order XXXIII of suing as a pauper; but it is very difficult to see how an order giving leave to sue as a pauper determines any right as against the defendant in the suit. He may well be able to recover his costs against the pauper; and the order in terms deprives him of no right whatever. It is suggested that he is deprived of a right under R. 15 of O. XXXIII, which provides that refusal to allow the applicant to sue as a pauper is a bar to any subsequent application of the like nature, but the applicant is to be at liberty to institute the suit in the ordinary manner provided that he first pays the costs incurred by the opposite party in opposing his application for leave to sue as a pauper. It is suggested that the order in this case will deprive the appellant of the latter right. That is a very indirect consequence of the order. The right only arises from a refusal to give leave to sue, and there has been no such refusal. It is possible that the application, even if not allowed, might have been withdrawn by the permission of the Court. It seems to me that any advantage which the appellant gets under Clause 15 does not arise from the order giving leave to sue which determines no right within the meaning of the cases under Clause 15 Letters Patent. I think therefore that the preliminary objection must prevail, and that there is no right of appeal in this case".

With great respect to the learned Judges, they did not take into account the considerations pointed out by me earlier, namely, that the right of the defendant to insist on the plaintiff paying the Court-fee where he has the means to pay it is itself a valuable right, and that, if an order had been made in the defendant's favour, it would have put an end to the suit in the form in which it was brought by the plaintiff.

(59) Sri Mohan Kumaramangalam appearing for the appellants in O. S. A. 7 of 1966, has tried to sustain the contention of appealability by another ground, namely, that if the right of appeal is now denied to the defendants, they will not be entitled to raise the question at any later stage when once the trial of the suit begins, and they will not entitled to urge it as a ground in the appeal from the decree, if the plaintiff succeeds in obtaining a decree. This submission is based on S. 105 C. P. C., which says--

"Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal".

The decisions under S. 105 C. P. C. have held that this section must be read with Section 99 C. P. C. which says--

"No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court".

Pointing out that Section 105 C. P. C. must be read harmoniously with Section 99 C. P. C., the decisions have held that the phrase "affecting the decisions of the case" in Section 105 C. P. C. must be interpreted to mean "affecting the decision of the case on merits". The decisions will be found collected in any text book; for example, in the Commentary of AIR Section 105; Note 6, see in particular Manik Mandal v. Bharosi Singh, , where it was held that an order setting aside the dismissal of a suit by a Munsif for default could not be canvassed by the defendant in the ultimate appeal against the decree.

(60) I would, however, rather not base the appealability of the order allowing the plaintiff to sue in forma pauperis on this ground, namely, that the correctness of the order could not be canvassed by the defendants in the appeal from the ultimate decree which may be passed against them. I say this because, speaking generally and in the last resort, the Civil Procedure Code cannot govern the interpretation of Clause 15 Letters Patent. This has been pointed out in more than one decision, and was not really disputed at the Bar. For instance, Krishnaswami Aiyar J. in (1912) ILR 35 Mad 1 at p. 13 (FB), while criticising the view expressed in (1872) 8 Beng LR 433, that the word "judgment" in Clause 15, Letters Patent should receive a restricted interpretation so as not to allow an appeal in cases where no appeal lay under the Code, observed:

"This view was obviously open to exception. The rules to be made under clause 37 for regulating proceeding in civil cases, though the Court was to be guided as far as possible by the provisions of the Civil Pro. Code, could hardly include a provision regulating the right of appeal already determined by S. 15 and as pointed out by the Full Bench of this Court in Chappan v. Moideen Kutti, (1899) ILR 22 Mad 68, the provision as to appeals in the Code applies to cases in which appeals lie from the Court to another and not from one member of a Court to other members of the same Court".

(61) Similarly in Mathura Sundari Dasi v. Haran Chandra Saha. ILR 43 Cal 857 = (AIR 1916 Cal 361), where it was held by a Full Bench of the Calcutta High Court that an appeal lay under Cl. 15, Letter Patent against an order of the single judge rejecting an application filed under O. IX, R. 9, C.P.C. by the plaintiff to set aside the dismissal of the suit, that eminent Judge, Mookerjee, J., makes some observations at pages 872 and 873, which are relevant for us.

(62) The Privy Council in Hurrish Chunder Chowdhry v. Kalisundari Debi, (1883) ILR 9 Cal 482 (PC), at p. 494, while holding that an order of a single Judge of the High Court refusing to transmit the order of the Privy Council for execution to a subordinate Court was a Judgment appealable under Cl. 15, went on to say :

"It only remains to observe that their Lordships do not think that Sec. 588 of Act 10 of 1877 (the then Civil Procedure Code), which has the effect of restricting certain appeals applied to such a case as this where the appeal is from one of the Judges of the Court to the Full Bench."

There was some controversy in the different High Courts about the scope of these observations. Mookerjee, J., pointed out that it was unnecessary to pursue that discussion, because S. 104 of the Code of 1908 was materially different from S. 588 of the Code of 1882, Mookerjee, J., went on to observe :

"It provides than an appeal shall lie from the orders mentioned in the first clause of that section and, save as otherwise expressly provided in the body of the force, from no other orders. The effect of S. 104 is that not to take away a right of appeal given by Cl. 15, Letters Patent, but to create a right of appeal in cases even where Cl. 15 of the Letters Patent is not applicable."

Again, even in (FB), cited by Sri N.C. Raghavachari by way of analogy to support his argument in this case, contains observations showing that the provisions of the Civil Procedure Code cannot govern the interpretation of Cl. 15, Letters Patent. The actual decision of the Full Bench of the Bombay High Court in that case was that an order of a single Judge on the Original Side of the High Court setting within the meaning of Cl. 15, Letters Patent and was not appealable. The reasoning was thus expressed:

"The result of the Order no doubt is that the plaintiff is deprived of a valuable right which had accrued to him under the decree which had been passed in his favour. It also relieves the defendant of his liability under that decree. But the order does not decide any of the matters in controversy in the suit."

Lower down they refer to an earlier decision of the Bombay High Court in 40 Bom LR 658 = (AIR 1938 Bom 408), where it was decided that no appeal lay under Cl. 15, Letters Patent from an order setting aside an abatement of a suit under O. XXII, R. 9, C.P.C., because such an order did not affect the merits of the dispute between the parties. The Full Bench says:

"That view is in our opinion, correct. We may, however, add that we do not agree with the other reason given in that case, namely, that anomaly would arise if an order setting aside an abatement made by a Judge on the Original Side is held to be appealable, even though such an order, if made by any other Court, would be appealable under Cl. (k) in O. XLIII, R. 1. There are several order referred to in this rule, which are appealable, but against which no appeal would lie if they were made by a Judge on the Original Side, but which are OT appealable under the Code.

I am also refer to the observations of the Supreme Court in . It was a case where the plaintiff had brought the suit on promissory notes for over four lakhs of rupees under the summary procedure, provisions (O. XXXVII, C.P.C.) and the single Judge of the High Court granted leave to the defendants to defend that suit on condition of their depositing security to the extent of Rs. 70,000. The defendants filed an appeal under Cl. 15, Letters Patent which was summarily dismissed. They brought an appeal to the Supreme Court by special leave. One of the objections taken was that the trial Judge has not given reasons, and reliance was placed upon a decision of the Supreme Court which had held that a similar order of the City Civil Court was had for not having given reasons. Distinguishing the above case, their Lordships observed:

"In the case before us the order made is by the High Court itself and not by the Sub-ordinate Court. No doubt an appeal under S. 96 or a revision application under S. 115 of the Code. Moreover, O. 49, R. 3 sub-rule (5), provides that nothing contained in Rr. 1 to 8 of O. 20 will apply to any Chartered High Court in exercise of its ordinary or extraordinary civil jurisdiction. The provisions relating to the giving of reasons in support of a decision are to be found in R. 4 of O. 20. Since these provisions do not apply to Chartered High Courts, like the High Court at Bombay, the decision relied upon cannot be pressed in aid."

It is superfluous to add that the power of the High Court under S. 115, C.P.C. to revise the order of a Subordinate Court cannot and does not have its exact counterpart in the Letters Patent.

(63) In view of the above decisions and considerations, I am rather disinclined to rely on the criterion suggested by Sri Mohan Kumaramangalam, namely, because the defendants will not be entitled to canvass the correctness of the order of the single Judge granting permission to sue in forma pauperis in the appeal from the decree which might be passed against them, the order should be held appealable. The argument is, however, useful as emphasising that the application for permission to sue in forma pauperis is really a distinct prefatory proceeding and cannot be considered as a mere step towards obtaining the final adjudication so as to be unappealable, according to the test of Sir Arnold White, C. J.

(64) It is interesting to note that the circumstance that the order granting permission to sue in forma pauperis is not a decision affecting the merits of the suit, which has been pressed into service by Sri Mohan Kumaramangalam in support of the appealability of the order, has been used precisely for arriving at the opposite conclusion in and . The learned Judges proceed

on the footing that their Lordships of the Supreme Court had laid down the test that a decision in order to be appealable must affect the merits of the controversy in the suit. But it has to be explained that their Lordships of the Supreme Court did not lay that down as a test which must necessarily be satisfied for appealability.

As already stated, at page 1165 of the authorised reports, , their Lordships quote from the judgment of Sir

Richard Couch, C. J., in (1872) 8 Beng LR 433 to show that Couch, C. J., himself was of the opinion that an order to be a judgment under Cl. 15, Letters Patent need not decide the case on merits and that it was enough if it put an end to the suit or proceeding, and that it was only on that footing that Couch, C. J., held that an order rejecting a plaint was a judgment under Cl. 15. Their Lordships of the Supreme Court repeat this at page 1166, when they say:

"It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits."

At page 1167, they reiterate that, "an order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned" and on that basis distinguish an order of transfer under Cl. 13, Letters Patent.

(65) All this shows that their Lordships did not consider as a necessary test of appeal that the order must affect the merits of the controversy in the suit itself. Indeed, an order refusing permission to sue in forma pauperis does not affect the merits of the controversy in the suit itself, but it is admittedly appealable under Cl. 15. It may be added that the learned Judges in (FB), which the two Bench decisions affecting the merits of the controversy in the suit is a necessary test of appealability. Thus, Govinda Menon, J., says at pages 1058 and 1059 (of ILR Mad) = (at p. 1059 of AIR):

"Two tests have been laid down by Their Lordships of the Supreme Court to find out whether an adjudication in a particular proceeding is a judgment or not, and they are, as seen from pp. 1166 and 1167 (of SCR) = (at pp. 200-201 of AIR SC) (i) whether it terminates the suit or proceeding; and (ii) whether it affects the merits of the controversy between the parties in the suit itself. 'If either of these conditions are complied with, then it is a judgment'."

I have underlined (here in ' ') the sentence which is relevant for us now.

(66) It is true that the adoption of the "conceivable order test" may mean that some decisions hitherto considered not appealable under Cl. 15 may have to be held appealable; but that cannot be a good reason for refusing to recognise its logical effect in the case before us. It is sufficient to point out that even after the adoption of the conceivable order test" there would still remain some orders which will not be appealable; for example, an order framing or refusing to frame an issue, an order granting or refusing to grant an adjournment, an order issuing or refusing to issue a commission for examining a witness. The several instances in which hitherto order have been held not to be appealable are collected in the Commentary of the AIR Letters Patent, Cl. 15, Note 3, pp. 4646 to 4648 in Vol. 4, and as occasion turns up, each of these situations may have to be examined again in the light of this "conceivable order test".

(67) Sri N.C. Raghavachari and Sri K.N. Balasubramaniam appearing for the plaintiffs (respondents in the appeals) have cited before us a large number of decisions holding that the different types of orders mentioned therein are not judgments under Cl. 15, Letters Patent. Since the "conceivable order test" was not even referred to, much less discussed, in these cases, I do not feel oppressed by the weight of those decisions. Some of them, indeed, may require reconsideration in the light of that test. In this view I do not propose to examine all these cases. However, it will be necessary to deal with the decision cited in the order of reference, ILR 59 Mad 656 = (AIR 1936 Mad 387) and the decisions related to that.

(68) ILR 59 Mad 656 = (AIR 1936 Mad 387) was a case where Lakshmana Rao, J., excused the delay in the presentation of an application for leave to appeal as a pauper, and later refused to revoke that order; and when the opposite party filed an appeal under Cl. 15, Letters Patent, it was held by Beasley, C. J., and Stodart, J., purporting to follow the test of White, C. J., that the order was not appealable because "the order, therefore, was not one which put an end to a proceeding but on the contrary, it enables it to go on". The learned Judges followed an exact decision of Rankin, C. J., for himself and Suhrawardy and Graham, JJ., in Brojagopal Roy v. Amar Chandra ILR 56 Cal 135 = (AIR 1929 Cal 214) (FB). That decision will have to be examined in some detail. But it may be said at once that in neither of these decisions was the "conceivable order test" referred to at all.

(69) ILR 56 Cal 135 = (AIR 1929 Cal 214) (FB) was a case where the second appeal to the High Court was presented out of time. It came up for hearing before Ghose and Buckland, JJ. Ghose, J., was prepared to excuse the delay, but Buckland, J., was not. The opinion of the senior Judge Ghose, J., prevailed. Consequently the appeal was allowed to be filed. From this order an appeal was taken under Cl. 15, Letters Patent, to the Bench of three Judges. The question was whether that was a judgment appealable under Cl. 15, and it was answered in the negative. It is necessary to refer in some detail to the structure of the judgment of Rankin, C. J., in order to understand the final conclusion. The learned Chief Justice first of all, observed that if there had been an order refusing to excuse the delay in the filing of the appeal, it would have been appealable; because it would have put an end to the litigation between the parties. An earlier case in Gobinda Lal Das v. Shib Das Chatterjee, (1906) ILR 33 Cal 1323, had held otherwise on the ground that the suit had already come to a termination by the operation of law, and the proceeding to excuse the delay was not in the course of the suit. This reasoning was criticised by Mookerjee, J in ILR 43 Cal 857, 876 = (AIR 1916 Cal 361, 366) and by the Bombay High Court in Nagindas Motilal v. Nilaji Moroba, ILR 48 Bom 442 = (AIR 1924 Bom 399). Rankin, C. J., agreeing with those criticisms observed that if the question arose again whether an appeal would lie against an order refusing to excuse the delay, it would have to be referred to a Full Bench.

(70) It will now be useful to refer at this stage itself to those criticisms. ILR 43 Cal 857 = (AIR 1916 Cal 361), already referred to, was a case decided by three Judges and it was held that an appeal lay under Cl. 15. Letters Patent, from the order of a single Judge under O. IX, R. 9, C.P.C., rejecting the plaintiff's application for an order to set aside the dismissal of the suit. Mookerjee, J., after referring to the test of Couch, C. J. in (1872) 8 Beng LR 433, observes:

"The order under appeal does not affect the merits of the question in controversy between the parties by the determination of a right or liability. No doubt, it has been argued that the right or liability of the parties was determined by the dismissal of the suit and the position was not affected by the subsequent dismissal of the application to revive the suit. But this clearly overlooks the fundamental point that the primary order of dismissal of the suit was liable to be revoked, as it was subject to a possible order to restoration under R. 9. The effect of the subsequent order is accordingly to give a character of finality to the primary order of dismissal by a determination that the applicant had failed to establish grounds in support of his alleged right to an order under R. 9 of O. IX. Such determination is in my opinion, a 'judgment' within the meaning of Cl. 15, Letters Patent."

(71) At page 876, referring to the reasoning in (1906) ILR 33 Cal 1323, he says that the qualification formulated there went beyond the definition of the term "judgment" given by Couch, C. J. ILR 48 Bom 442 = (AIR 1924 Bom 399) was again a decision of three Judges of the Bombay High Court, where it was held that an appeal lay under Cl. 15, Letters Patent, from an order refusing to excuse the delay in filing an appeal or application (Actually the application there was for leave to appeal to the Privy Council), Fawcett, J., observes at p. 466:

"In (1906) ILR 33 Cal 1323, the finality of a decision under S. 5, Indian Limitation Act, is challenged on the ground that an appeal presented after the prescribed period of limitation has expired, is a dead one, and that an order refusing to excuse the delay in presentation of the rights and liabilities of the parties but a proceeding in respect of a matter which had already come to a termination by operation of law. With great respect I do not think this argument is a sound one. Sec. 5, Indian Limitation Act, says that an appeal, though not presented in proper time, 'may be admitted' if the delay is excused for sufficient cause; and the general provision in S. 3 for the dismissal of appeals preferred after the period of limitation is subject to the provisions (inter alia) of S. 5. That being so, the appeal cannot be considered to be dead until the Court has definitely decided that it should not be admitted. The appeal meanwhile is merely defective, or (to use the analogy of life and death) sick and not dead."

Referring to ILR 56 Cal 135 = (AIR 1929 Cal 214) (FB), Rankin, C. J., observes at pp. 141 and 142 (of ILR Cal) = (at p. 215 of AIR):

"The cases which bear upon the competence of an appeal under Cl. 15, Letters Patent, from a decision under S. 5 of the Limitation Act admitting an appeal after the period of limitation prescribed require, in my opinion, to be separated from cases which proceed upon the footing that the decision appealed from has put an end to the litigation. Even within this limited range, however, it cannot be said with confidence that the decided cases are uniform or consistent. While it has been held in ILR 43 Cal 857 = (AIR 1916 Cal 361), that an order made under O. IX, R. 9, C.P.C., refusing to restore a suit after it had been dismissed for default under R. 8 of the same Order is a judgment within the meaning of Cl. 15, Letters Patent, it has also been held in Maharaj Kishore Khanna v. Kiran Sashi Dasi, ILR 49 Cal 616 = (AIR 1922 Cal 407), that no appeal lies from an order made under R. 9 setting aside a dismissal and restoring a suit. Again, while, under the Civil Procedure Code, Order XLIII. R. (k), an appeal is expressly given from an order under R. 9 of O. XXII refusing to set aside the abatement of a suit, it has been held in Saratchandra Sarkar v. Maihar Stone and Lime CO., Ltd., ILR 49 Cal 62 = (AIR 1922 Cal 335), that an order setting aside the abatement of a suit is a "judgment" under Cl. 15, Letters Patent. This decision followed an unreported case--Padmabati v. Tulsai, (1918) F.A. No. 16 of 1918 (Cal) where Woodroffe, J., laid stress upon the circumstance that under R. 9 of Or. XXII 'where a suit abates......no fresh suit shall be brought on the same cause of action' and said 'the appellant has acquired thereby a right' which the order made by Mr. Justice Chaudhri has interfered with. There is, therefore, in my opinion, 'an appeal'."

Rankin, C.J., then refers to two decisions of the Privy Council which show the importance of the decision appealed against to the party complaining thereof. (1883) ILR 9 Cal 482 (PC) and Krishnaswami Panikondar v. Ramaswami Chettiar, ILR 41 Mad 412 = (AIR 1917 PC 179). Rankin, C.J., then refers to Ss. 3 and 5 of the Limitation Act of 1908, and points out that because S. 3 is subject to the provisions contained in Ss. 4 to 25 inclusive, and S. 3 enables the Court to extend the period of limitation in the case of an appeal or application (though not in a suit), it is wrong to say that an order admitting an appeal under S. 5 deprives the respondent of a vested right granted to him by S. 3; in other words, that there is no vested right merely because of the lapse of the statutory period. It will be recalled that this was precisely the reasoning of Fawcett, J., in ILR 48 Bom 442 = (AIR 1924 Bom 399). Then comes the following passage, on which reliance was placed by the Bench, in ILR 59 Mad 656 = (AIR 1936 Mad 387):--

"On the whole, and not without some doubt, I think that the mere circumstance that an order puts in peril the finality of a decision given in the respondent's favour, does not of itself make that order a 'judgment' within the meaning of Cl. 15, Letters Patent. The same might said of an order restoring a suit under Or. IX, R. 9, and with much greater reason. The same might be said of any order giving leave to appeal or granting a certificate that a case was a fit one to be taken on appeal. Whether any distinction can logically or practically be maintained between an order setting aside an abatement and an order restoring a suit after dismissal for default may well be doubted. But in the case now before us the order complained of does not set anything aside. It operates merely to declare that the appeal may be entertained. For the purpose of the present objection to the competence of this Letters Patent appeal, it is a stronger case in favour of the present respondent than the case of ILR 49 Cal 616 = (AIR 1922 Cal 407)."

(72) It will thus be seen that the reason why Rankin, C.J., held that an order excusing the delay in the presentation of an appeal was not appealable was that it did not set aside any decree according to the learned Chief Justice. That again proceeded on his view that no vested right had accrued to the respondent by reason merely of the lapse of the statutory period. That was why the learned Chief Justice distinguished the cases where the decision appealed from had put an end to the litigation; for instance, an order under Or. IX. R. 9, C.P.C., refusing to restore the suit which had been dismissed for default. It is also evident that the learned Chief Justice was inclined to the view that even an order made under Or. IX, R. 9, C.P.C., setting aside the dismissal and restoring the suit would be appealable in the same way as an order setting aside the abatement of the suit under O. XXII, R. 9, C.P.C., had been held appealable. But for the purpose of the case before him, it was not necessary to decide that point expressly.

It is clear that the learned Judges approved of the reason given in ILR 49 Cal 62 = (AIR 1922 Cal 335) for holding that an order setting aside the abatement of a suit is a 'judgment' under Cl. 15, Letters Patent, the reasons being that the order setting aside the abatement deprived the party, in whose favour the abatement operated, of a valuable right. Reading between the lines, it is clear that rankin, C.J. and the other Judges were also inclined to adopt the same reasoning and hold that an order allowing the plaintiff's application under Or. IX, R. 9, C.P.C., and restoring the suit which had been dismissed for default would also be appealable by the defendant on the ground that the order under Or. IX, R. 9, C.P.C., deprived the defendant of the valuable right which he had already acquired by the dismissal of the suit. This in effect is really the 'conceivable order test' stated in another form.

The right of appeal can be sustained on the 'conceivable order test' thus. If, instead of setting aside the abatement, the order had been passed the other way, it would have put an end to the suit once for all and similarly, if, instead of restoring the suit under Or. XI, R. 9, C.P.C., an order had been passed dismissing the application under Or. IX, R. 9, C.P.C., it would have put an end to the suit once and for all-and it would import a character of finality according to the language of Mookerjee, J. in ILR 43 Cal 857, 876 = (AIR 1916 Cal 361, 366).

(73) I venture to observe that Rankin, C.J., and other two Judges could have extended this reasoning to the case before them and held that the order excusing the delay in filing the appeal was a 'judgment' under Cl. 15, Letters Patent.

(74) ILR (1940) Bom 361 = (AIR 1940 Bom 196) was also a case where it was held that no appeal lay under Cl. 15, Letters Patent, from an order of a single Judge excusing delay in filing an appeal. It follows the decisions in ILR 56 Cal 135 = (AIR 1929 Cal 214) (FB) and ILR 59 Mad 656 = (AIR 1936 Mad 387) and does not require further discussion.

(75) , a case which followed ILR 49 Cal 616 = (AIR

1922 Cal 407), held that no appeal lay from an order restoring the suit dismissed for default. In paragraph 21 the reason is put thus:

"..................although the decision embodied in the decree is undoubtedly disturbed in such a case and although the party in whose favour the decree operated is undoubtedly deprived of a valuable right, nothing is in fact decided, because although the controversy is reopened, the same decree may again be made. That the dismissal is set aside and the suit restored does not mean that the suit is decreed or anything is decided."

With great respect, this reasoning pays no regard to the valuable right of which the defendant had been deprived by the order of restoration of the suit, and the reasoning does not apply the 'conceivable order test'.

(76) is again a Full Bench decision of the Bombay

High Court where it was held that an order of a single Judge setting aside an ex parte decree was not a judgment within the meaning of Cl. 15, Letters Patent and was not appealable. The reasoning of the learned Judges is thus expressed:

"The result of the order no doubt is that the plaintiff is deprived of a valuable right, which had accrued to him under the decree which had been passed in his favour. It also relieves the defendant of his liability under that decree. But the order does not decide any of the mattes in controversy in the suit. In a proceeding to set aside a decree, the only question which the Court is called upon to consider is whether sufficient cause has been shown for the decree being set aside and the suit being restored. In such a proceeding the Court is not required to and does not decide any question arising in the suit. When, therefore, a decree is set aside, there is no determination of the questions in controversy between the parties. All the matters are left open for a fresh adjudication. The right of the plaintiff to have his claim determined by a Court is not affected in any way. Similarly, the defendant's liability in respect of such a claim is not affected, but remains to be adjudicated upon. The questions in dispute between the parties are, therefore, not determined by an order setting aside an ex parte decree. Such an order is not, therefore, in our opinion, a judgment within the meaning of Cl. 15, Letters Patent."

(76-A) Here again I would respectfully differ, pointing out that the learned Judges do not pursue to its logical conclusion their reasoning that the order setting aside an ex parte decree has deprived the plaintiff of a valuable right, and do not refer to the "conceivable order test."

(77) It has been that ILR 49 Cal 62 = (AIR 1922 Cal 335) decided that an order setting aside the abatement under Or. XXII, R. 9, C.P.C., was a judgment under Cl. 15, Letters Patent, and was appealable, and was approved in ILR 56 Cal 135 = (AIR 1929 Cal 214 (FB)). It was also approved by a Bench of our High Court in 64 Mad LJ 493 = (AIR 1933 Mad 417) but distinguished.

(78) AIR 1938 Bom 408 was, however, a case, where Beaumont, C.J., and Wadia, J., held, differing from ILR 49 Cal 62 = (AIR 1922 Cal 335), that an order setting aside the abatement of a suit was not a judgment under Cl. 15. The reason of the learned Judges was two-fold: first, that an order restoring a suit under Or. IX, R. 9, C.P.C., was not appealable as pointed out in ILR 49 Cal 616 = (AIR 1922 Cal 407) and secondly, that the same principle would govern an order setting aside an abatement under O. XXII, R. 9, C.P.C. The learned Judges also referred to the fact that under the Civil Procedure Code an order setting aside an abatement was not appealable. With respect, for the reasons already given, I would differ.

(79) Sri N.C. Raghavachari then cited the decision of the Federal Court in where the question was whether an appeal lay to the Federal Court under S. 205(1) of the Government of India Act, 1935, in the particular case. The provision ran:

"An appeal shall lie to the Federal Court from any judgment, decree, or final order of a High Court in British India..........."

The order appealed against was one where Rajamannar, J. (as he then was), overruled some preliminary objections of the accused in a criminal case, the result of which was that the proceedings had to go on before the Magistrate. Their Lordships of the Federal Court discussed the case-law, and held that an appeal did not lie, because "It is clearly not a decree. It is also not a judgment, as it is only an interlocutory order made on a preliminary objection in the course of a criminal trial. It is also not a final order, as the order is not a point which, decided either way, would terminate the matter before the Court finally". This decision was followed by the Federal Court in Md. Amin Bros. Ltd. v. Dominion of India, AIR 1950 FC 77 and referred to in . But the considerations which determine the

appealability from the High Court to the Federal Court or the Supreme Court cannot apply to an appeal from one Judge of the High Court to a Bench under Cl. 15. The latter is an internal or domestic matter, where an appeal will lie even where there is no final ultimate disposal of the suit as required for an appeal to the Federal Court or the Supreme Court. It is understandable that the highest Court cannot be troubled with an appeal before the suit is finally determined once and for all in the High Court, but such a strict criterion is not necessary for an appeal under Cl. 15, Letters Patent.

(80) This is recognised in some of the decisions and it is sufficient to mention the following: The observations of Chandra Reddy, J. in was the observations of Dalip Singh, J. in ILR (1942) 23 Lah 491 = (AIR 1942 Lah 95) (FB):--

"There seems to be obviously some distinction between the words 'final judgment' and the word 'judgment'.

Lastly, I may refer to the following sentence in the passage of the judgment of their Lordships of the Supreme Court in (already discussed):

"No doubt an appeal lay against it under the Letters Patent, but that is merely an internal appeal in a High Court, which cannot be likened to an appeal under S. 96 or a revision under S. 115 of the Code."

There, it would seem that neither the order of the single Judge nor the order of the appellate Bench would be a final order appealable under Art. 133 of the Constitution of India, and yet their Lordships of the Supreme Court felt no doubt that the order of the single Judge was a judgment under Cl. 15, Letters Patent.

(81) Before leaving this part of the discussion, it may not be out of place to point out that though the general scheme of Arts. 132 to 134 of the Constitution is that an appeal will lie to the Supreme Court only when the case is finally disposed of in the High Court, an exception has been enacted in the explanation to Art. 132, dealing with appeals on a pure question involving the interpretation of the Constitution. The Explanation says:

"For the purpose of this article, the expression 'final order' includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case."

The object of this explanation is to override the decision in 1947 FCR 180 = (AIR 1949 FC 1) already referred to, and it introduced the conceivable order test to this extent-See Basu's Commentary on the Constitution, Vol. III, at page 103.

(82) It will be seen that the crux of my reasoning for holding that the order of the single Judge in each of these appeals, granting permission to the plaintiff to institute the suit in forma pauperis, is appealable, is that, if the order had been made the other way, and the permission had been refused, it would have put an end to the suit brought in forma pauperis. This is not a mere matter of phraseology, but embodies a matter of substance, because the defendant has a valuable right to insist that the plaintiff should not be allowed the privilege of suing as a pauper and must fight him on equal terms after paying the court-fee, and if the defendant succeeds in establishing his contention, the suit brought a pauper would be put an end to, and there is even the possibility of the plaintiff abandoning the suit or reducing the claim.

(83) I hold that an appeal lies in each of the cases before us, under Cl. 15, Letters Patent. This means that the decisions in and must be overruled so also, on

the same reasoning, the decision in ILR 59 Mad 656 = (AIR 1936 Mad 387).

Ramamurti, J.

(84) I have perused the judgment of my Lord the Chief Justice and Venkataraman J. and I agree with the conclusions reached by them. In view of the importance of the questions raised I desire to add my own reasons.

(85) The reference to the Full Bench is because of the conflicting views held by different Benches of this Court, on the question, whether an order of a single Judge of this Court, granting permission to sue in forma pauperis, either sitting on the Original Side, or on the appellate side, in respect of proceedings from Courts in mofussil, would amount to a judgment within the meaning of Clause 15, Letters Patent. An appeal would lie only if such an order is a judgment; otherwise not.

(86) In ILR 48 Mad 700 = (AIR 1925 Mad 167), it was held that an order of Judge of the High Court on the Original Side allowing or refusing the plaintiffs to sue as a pauper is a judgment under Clause 15 and is therefore appealable. This Bench decision purports to follow the reasonings and the principle enunciated in the leading Full Bench decision of this Court in Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB). The argument, that the order in question was an order in an interlocutory application, that it was passed in the exercise of a discretionary power, that it was merely a step towards obtaining a final adjudication and therefore could not be the subject matter of an appeal under Clause 15, was not accepted. This view was not followed but dissented from in the latter Bench decisions of this Court: Union of India v. Shanmugha Nadar , M/s. Cork Industries v. Govindarajulu Mudaliar .

It is necessary to mention, even at the outset, the precise grounds on which the two latter Bench decisions took this contrary view. According to the learned Judges the Supreme Court in Ashrumati Debi's case, , had laid down two tests for determining whether an order would amount to a judgment within the meaning of Clause 15. (a) the order should terminate the suit or proceeding; (b) the order should affect the merits of the controversy between the parties in the suit itself, and that neither of these tests was satisfied in ILR 48 Mad 700 = (AIR 1925 Mad 167) and therefore it has been rendered bad law having been impliedly overruled by the Supreme Court. According to the learned Judges the reasons for holding that an order for transfer of a suit under Clause 13, Letters Patent is not a judgment within the meaning of Clause 15 would equally apply to an order granting leave to sue in forma pauperis and that the overruling by the Supreme Court in ILR 47 Mad 136 = (AIR 1924 Mad 90), which dealt with a case of an order or transfer under Clause 13 would amount to overriding (impliedly) the decision in ILR 48 Mad 700 = (AIR 1925 Mad 167).

In both the Bench decisions it has been emphasised that there is a vital difference between an order refusing leave and one granting leave to file a suit in forma pauperis, and that where leave is granted, the suit does not come to an end; but far from getting terminated, the result of the order is to allow the suit to be registered and thereby keep it pending for final adjudication or determination of the rights of the parties thereafter, and therefore such an order is not a judgment. In the concluding portion of the judgment in , the Bench has specially adverted to the fact that even though they are differing from the view taken in Baba Sah's case ILR 48 Mad 700 = (AIR 1925 Mad 167), they are not referring the matter for consideration by a Full Bench, as, according to the learned Judges, the decision of the Supreme Court must be deemed to have overruled the decision in Baba Sah's case, ILR 48 Mad 700

(AIR 1925 Mad 167).

(87) In view of this prospective approach adopted in the two latter Bench decisions two aspects arise for consideration (a) whether the observations of the Supreme Court in Asrumati Debi's case, , have impliedly overruled Baba Sah's case, ILR 48 Mad 700 = (AIR 1925 Mad 167). (b) If the Supreme Court decision has no such effect, is the decision in Baba Sah's case, ILR 48 Mad 700 = (AIR 1925 Mad 167), incorrect as not following or not being in consonance with the tests laid down in the Full Bench case, Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB). In other words, is the decision in Baba Sah's case, ILR 48 Mad 700 = (AIR 1925 Mad 167), warranted and justified by the reasonings or the tests laid down in Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB). To express the same idea with reference to the two latter Bench decisions, is the view taken therein correct, as necessarily and logically flowing from the tests laid down in Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB).

(88) As to the proper interpretation of the word "judgment" in Clause 15, Letters Patent, there is sharp divergence of opinion amongst the various Courts and till now no decision in India has laid down an exhaustive, all embracing and comprehensive definition. So far as this Court is concerned, the decision in Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB), has held the field for over half a century and all the decisions subsequent thereto, have uniformly followed and applied the tests laid down therein, in varying contexts, in determining whether or not a particular decision amounts to a 'judgment' within the meaning of Cl. 15. Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB), is binding upon us, the Bench as constituted, and in that view, it is unnecessary to examine the welter of the conflicting decisions of the various High Courts.

The divergent views of the various Courts may be conveniently classified under three categories.

(1) The view of the Rangoon High Court laid down in ILR 13 Rang 457 = (AIR 1935 Rang 267) (FB), (which view had been followed by some of the High Courts) that the word 'judgment' in the Letters Patent, means and is, a decree in a suit, by which rights parties in the particular suit are determined. Such a judgment may be preliminary or final and except these, all other decisions are mere orders and would not amount to 'judgment' within the meaning of the relevant (Sic-Clauses?) of the Letters Patent.

(2) The Calcutta view--Vide (1872) 8 Beng LR 433, a decision in order to amount to a 'judgment' should be a decision which affects the merits of the question between the parties by determining some right or liability and that it may be either preliminary or final.

(3) The Madras view--Tuljaram Rao's case, (1912) ILR 35 Mad 1 (FB), a decision may amount to a judgment within the meaning of Clause 15, though it does not affect the merits of the controversy between the parties in the suit or proceeding and does not determine any question in right raised in the suit or proceeding. "The true test is not the form of the adjudication but its effect in the suit or proceeding in which it is made. Whatever its form may be, and whatever may be the nature of the application in which the order is made, if its effect, is to put an end to the suit or proceeding, so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, it is not complied with, would put an end to the suit or proceeding such an adjudication would be a "judgment" within the meaning of Clause 15".

It will be at once noticed that this interpretation of the word "judgment" is very comprehensive and wider that the interpretation put upon the term in the decision of the Calcutta High Court referred to. When further reference is made to this decision of the Calcutta High Court, (1872) 8 Beng LR 433, as well as to (1874) 13 Beng LR 91, it will be apparent that there is however a certain amount of overlapping in the tests laid down therein and those enunciated in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB). Some of the observations of Couch C. J., who delivered the judgments in both the Calcutta decisions, would show that a decision may amount to a 'judgment' within the meaning of Clause 15, though it does not affect the merits of the controversy between the parties but finally disposes of or terminates the suit or the proceeding, though on a technical point, which is one, amongst the several tests laid down in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB). As the Supreme Court in Asrumati Debi's case, , has referred to these two decisions of the Calcutta High Court, with comments of some significance, extracting the observations of Couch C. J., therefrom it is necessary to examine these decisions in particular.

(89) I shall first refer to these two early decisions of the Calcutta High Court which constitute the first landmark on the topic. In (1872) 8 Beng LR 433, a Gas Company which claimed some compensation against the Justice of the Peace for Calcutta wanted the latter to join in an application for arbitration and ascertainment of the damages by a Judge of the Court of Small Causes, Calcutta. As the Justices of Peace disputed the right of the gas company, the latter took out an application for the issue of a writ of mandamus against the justices of Peace to join in the arbitration and a writ of Mandamus was issued. Against this order, the justices of Peace preferred an appeal and a preliminary objection was raised that his order was not a 'judgment' within the meaning of Clause 15, Letters Patent on the ground that the order did not determine any question whatsoever between the parties and it only initiated the proceedings by which the liability of the Justices of Peace to make compensation would be ascertained and determined.

In support of the maintainability of the appeal reliance was placed upon an earlier decision of the Madras High Court in (1866-68) 3 Mad SCR 384, in which it was held that as the language in Clause 15 is very general in terms, no limits can be prescribed to the right of appeal with reference to the nature of order or decree, and that an appeal would lie from any decision the judgment was not prepared to accept this definition which was manifestly too wide. He put the matter thus at pages 452-458:--

"We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determines some right or liability. It may be either final, or preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. Both classes are provided for in Clause 39 and 40 of the Chapter. An order, such as that before us, which only authorises a proceeding to be taken for the determination of the question between the parties, cannot be considered a judgment. it is however said that this Court has already put a wider construction upon the word 'judgment' in Clause 15 by entertaining appeals in case where the plaint has been rejected as insufficient, or a showing that the claim is barred by limitation, and also in case where orders have been made in execution. These however are both within the above definition of a judgment, and it by no means follows that, because we hold the order in the present case not to be appealable, we should be bound to hold the same in the cases referred to. For example, there is an obvious difference between an order for the admission of a plaint and an order for its rejection. The former determines nothing but is merely the first step towards putting the case in a shape for determination. The latter determines finally so far as the Court which makes the order is concerned that the suit, as brought, will not lie. The decision, therefore, is a judgment in the proper sense of the term".

The concluding portion of the observations extracted above shows that an order may amount to a judgment, even though it does not affect the merits of the question between the parties but disposes of the suit on a technical point as rejection of a plaint on the ground of insufficiency of stamps or a claim, as being barred by limitation; the only condition being that such an order determines finally so far as the Court which makes the order is concerned that the suit as brought will not lie. It must be recognised that these observations to some extent detract from the principle enunciated in the earlier portion of the judgment that a decision in order to amount to a judgment must affect the merits of the question in controversy between the parties.

(90) The next decision of importance is (1874) 13 Beng LR 91. In that case the plaintiff, a resident in Calcutta, instituted a suit against one H, Resident in Bombay but carrying on business by his agent in Calcutta and against other defendants who were residents in Bombay to set aside a release deed executed by the plaintiff in Calcutta concerning certain properties situated in Bombay on the ground that the release deed had been obtained from the plaintiff by false representations made by H. Macpherson J. sitting on the original side granted liberty to the plaintiff to institute the suit in the Calcutta High Court. The defendant H took out an application to rescind the order granting liberty to the plaintiff to institute the suit in the Calcutta High Court and have an order that the plaint may be taken off the file. This application of the defendant H was dismissed.

An appeal was preferred from this order and preliminary objection was raised as to the maintainability of the appeal. In the judgment of the Bench which was delivered by Couch C. J. it was held that the order in question amounted to a 'judgment' under Clause 15 and that on the facts of the case, leave ought not to have been granted to institute the suit in the Calcutta High Court and that the appropriate forum was the High Court in Bombay. In the course of the arguments reliance was placed upon the earlier decision of Couch C. J. in (1872) 8 Beng LR 433, in support of the contention that the order granting leave to institute the suit was not an appealable order. Couch C. J. overruled the preliminary objection with these observations at page 101 :--

"It was held by the High Court at Madras in (1866-68) 3 Mad HCR 384, that an order made under this clause of the Charter was subject to appeal. We may not agree in all the reasons which the learned Judges of that Court gave for their decision, but we do agree in the conclusion that this is an appealable order. It is great importance to the parties. It is not a mere formal order or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between them viz., the right to sue in a particular Court, and to compel the defendants who are not within its jurisdiction, to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence".

(91) The important point to notice in this decision is that even though the order (in its form) which has gone against the defendant does not put an end or terminate the suit as prayed for by the defendant, but keeps the suit pending, it is nevertheless held to be a 'judgment' under Clause 15 for the purposes of an appeal. The objection of the defendant that the suit cannot be prosecuted against him in the form as laid is regarded as an objection of great importance to the parties as involving the determination of some right against the defendant so as to make it a 'judgment' under Cl. 15. The ratio of this decision is that a decision of the judge on the Original Side, negativing the right claimed by the defendant is a 'judgment' even though at that stage, the suit is still pending and had not been put an end to. The significance of this ratio underlying (1874) 13 Beng LR 91, will be apparent when the decision in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB) is referred to.

(92) At this stage it is necessary to refer to the decision of the Bombay High Court in (1905) ILR 29 Bom 249, which has followed and applied the principle of the decision in (1874) 13 Beng LR 91. In that case, the plaintiffs instituted a suit for a declaration of their right to possession and enjoyment of some property situated outside the jurisdiction of the Bombay Court and also for an injunction against the defendant after giving effect to the declaration. The plaintiffs had obtained leave to institute the suit from the Judge sitting on the Original Side under Clause 15, Letters Patent. The defendant's application to revoke or rescind the leave so granted to the plaintiffs was dismissed and the defendant preferred an appeal there-from. Here too, a preliminary objection was raised as to the maintainability of the appeal. The same was overruled by Jenkins C. J. in these terms at page 253:--

"From the note of his judgment it is apparent that on the question, whether the suit was one for land, Mr. justice Russell has decided adversely to the defendants so that the dismissal of the summons has (so far as Mr. justice Russell is concerned) become decisive against the defendants. It thus falls within the rule laid down in (1874) 13 Beng LR 91, an (in my opinion) an appeal lies".

From this decision it again follows that if the decision about the maintainability of the suit rendered by a single Judge had become final against the defendants, thereby upholding the right of the plaintiff to institute the suit as laid by him, the order would amount to a judgment, even though at that stage, such an order does not put an end to the suit or proceeding but allow the suit to proceed, keeping it pending. The principle underlying this decision is that if a single Judge had passed the order as prayed for by the defendant, it would have resulted in the dismissal of the suit as not maintainable, but by wrong order of the single Judge, a valuable right of the defendant to have an order that the suit should be taken off the file as not maintainable, had been negatived, and the order was therefore regarded as a 'judgment' within the meaning of Clause 15.

(93) The principle of the decision in (1874) 13 Beng LR 91, was followed and applied by the Bombay High Court in a later decision in Atlas Assurance Co. Ltd. v. Ahmed Bhoy Habib Bhoy, (1910) ILR 34 Bom 1. In that case a party to a reference to arbitration, filed an application to revoke the submission to arbitration on the ground that the arbitrators were embarking upon an enquiry outside and beyond the scope of the reference. That application was dismissed and when an appeal was preferred, a preliminary objection was raised that the order of dismissal was not a 'judgment' but the said objection was overruled. The Bench took the view that the order had deprived the appellants of their valuable rights which they agitated before the single Judge and that the aggrieved litigants were entitled to agitate the matter and establish their contention in the appellate Court. it is again worthy of notice that in this case too, the decision of the Court did not put an end to or terminate the arbitration proceedings initiated for a decision upon the rights of parties but on the other hand the order allowed those proceedings to proceed further, keeping them pending but yet such a decision was held to be a 'judgment' in the view that if the aggrieved party had succeeded before the single Judge it would have put an end to or terminated the proceeding. In other words the possibility of the defendant obtaining an order in his favour which would put an end to or terminate the proceeding was regarded as a decisive circumstance to uphold a right of appeal under Clause 15.

(94) I shall not refer to Tulijaram Row's case, (1912) ILR 35 Mad 1 (FB), which is the next important landmark on the topic, and which as observed earlier, has been uniformly followed by this Court for over half a century. In that case it was held that the order of a single Judge on the Original Side refusing to frame an additional issue asked for by one of the parties is not a judgment within the meaning of Clause 15, Letters Patent and is therefore not appealable. White C. J. and Krishnaswami Aiyar J. delivered separate judgments while Ayling J. simply agreed. The wide definition of "judgment" given in (1866-68) 3 Mad HCR 384, was not accepted as being too wide covering within its scope every order of a single Judge with no limits. At the same time, the view expressed by Couch C. J. in (1872) 8 Beng LR 433, was not fully approved. In fact White C. J. stated that as regards the actual decision in (1872) 8 Beng LR 433, he would be disposed to hold that the order in question was appealable. It is necessary to extract the oft quoted classical statement of the law by White C. J. at page 7:--

"The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or of its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.

I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a 'judgment' within the meaning of the clause.

Speaking generally I think that the word 'judgment' means 'any final order, decree or judgment' within the meaning of these words as used in Section 12 of the English Judicature Act, 1875. An order made on an application which is interlocutory in point of form may be a judgment within the meaning of Clause 15, Letters Patent. On the other hand I am not prepared to say as was held in (1872) 8 Beng LR 433, and in (1872) 9 Bom HCR 398, it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding."

From the above passage it will be seen that an order of a single Judge may be in any proceeding; either a suit or in a miscellaneous proceeding or application or even a proceeding or an application or even a proceeding or an application in a pending suit. The independent proceeding may be merely with a view to make the judgment effectual and enable the party to realise the fruits of the adjudication like applications for appointment of a receiver and the issue of an injunction. The important test however is that the order or the decision if passed as prayed for by the party concerned must put an end to the proceeding. one important qualification however is that the application in which such an order is passed even though it disposes of the application finally should not be a mere step towards obtaining a final adjudication in the suit.

As the definition given by White, C.J. would take within its purview final orders passed in miscellaneous applications in the course of a suit, all orders of every description, whether important, vital or otherwise, the learned Chief Justice had added this note of warning or caution, obviously, having in his mind, orders like fixing date of hearing, adjournment application, issue of a commission, addition of parties, orders for production and inspection of documents etc., which are so frequently made towards the progress of the suit. In the nature of things, this definition of the learned Chief Justice which contains tests, both positive and negative in character, is not exhaustive, and necessarily the question of appealability will have to be decided in each case considering the substance of the matter and the importance of the order passed and in what manner the order operates adversely against the parties on points vital to them.

(95) The other important and distinct test which is laid down by White C. J. is contained in the following portion of his judgment at page 9 where he refers to the decision of the Bombay High Court in (1905) ILR 29 Bom 249:--

"As regards the Bombay authorities I may refer to (1905) ILR 29 Bom 249, where it was held that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file. here the adjudication asked for, if made, would have disposed of the suit. So also would an order made on an application to revoke a submission to arbitration. I think such an order is appealable. See (1910) ILR 34 Bom 1."

This embodies what may be conveniently described as the 'conceivable order test' which was first applied in (1874) 13 Beng LR 91. Under this rule will come the class of cases, in which the order, in its form, does not put an end to the proceeding but nevertheless constitutes a decision on a vital point adverse to the defendant depriving the defendant of a valuable right.

(96) To reiterate, the principle underlying this test is, if there is a possibility of the defendant succeeding and thereby bringing about a termination of the proceeding by an order being passed the other way, the order would be appealable because the order involves an adverse determination of adjudication of a valuable right of the defendant. That this reference of White C. J. to the ratio of the decision in (1905) ILR 29 Bom 249, is not a mere passing or a causal reference, to the development of the case law of the Bombay view, but was enunciated by the learned Chief Justice, as an independent crucial test, will be clear, when I refer to the observations contained in the judgment of the Supreme Court in Asrumati Debi's case, . Even at this stage, I may mention, that in (1905) ILR 29 Bom 249, Jenkins, C. J. merely referred to the decision in (1874) 13 Beng LR 91, without any discussion or a statement of the legal principle, and it was only White C. J. in (1912) ILR 35 Mad 1 at p. 9 (FB), who made pointed reference to this ratio "conceivable order theory" which is implicit in (1905) ILR 29 Bom 249. Krishnaswami Aiyar J. in a separate judgment has discussed the entire case law and his reasonings are also on the same lines. krishnaswami Aiyar J. too was of the opinion that a decision in order to amount to a judgment under Clause 15 need not be a decision on the merits. In that connection he has made the following observations :--

"The definitions with which we started will hardly suffice to mark the boundary accurately. There is no doubt that the adjudication of a right or liability which determines a suit or appeal is a judgment. Even a refusal to adjudicate which puts an end to a particular suit or appeal must equally amount to a judgment....... I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular Court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment; for otherwise the rejection of a plaint for defect of form or insufficiency of Court-fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning".

(97) The next important landmark from the point of view of the reference before us this Full Bench, is the decision of the Supreme Court, in Asrumati Debi's case, . But, before I refer to that decision one important observation requires to be made regarding the test propounded by Couch C. J. in (1872) 8 Beng LR 433. An examination of the subsequent decisions of the Calcutta High Court reveals that the learned Judges have gradually adopted the test laid down in Tuljaram Row's case (1912) ILR 35 Mad 1 (FB) manifesting a marked leaning towards the same. While adverting to the fluctuation in the views held by the subsequent decisions in the Calcutta High Court, this is what Page C. J. observed in ILR 13 Rang 457 = (AIR 1935 Rang 267) :--

"The Calcutta High Court has always given lipservice to the construction that was put upon the term 'judgment' by Couch C. J. in (1872) 8 Beng LR 433, but it almost invariably has refused in practice to follow it upon the ground that the definition of 'judgment' in that case is not exhaustive; indeed, Sir Richard Couch himself departed from it two years later in (1874) 13 Beng LR 91. At last, in Lea Badin v. upendra Mohan Roy, 39 Cal WN 155 = AIR 1935 Cal 35, Mukerji J. was constrained to say that :--

"To remove the incongruity which appears in the decisions of this Court, and to lay down some definite rule by which orders might be tested when it has to be determined whether or not they are 'judgments' within the meaning of the clause, this Court will some day have to abandon its fond adherence to the antiquated definition of Couch C. J. and boldly acknowledge its allegiance to the tests laid down by White C. J.".

In ILR (1942) 23 Lah 491 = (AIR 1942 Lah 95 FB), Dalip Singh J. has adverted to this trend in the later decisions of the Calcutta High Court in these terms at pages 495-496 (of ILR Lah) = (at pp. 96-97 of AIR):--

"This definition (meaning (1872) 8 Beng LR 433), has been generally accepted in the Calcutta High Court but while the definition has been accepted its scope has been considerably widened so that some of the learned Judges I more recent cases have remarked that the Calcutta High Court while paying lipservice this definition actually and generally disregarded it in practice as being not comprehensive enough and have gradually drifted to the definition given in (1912) ILR 35 Mad 1 (FB) a Full Bench of the Madras High Court: See the observations in this connection in 39 Cal WN 155: AIR 1935 Cal 35, at p. 158 and Earnest Bruno Nier v. George Reinhard, (1939) 43 Cal WN 697, at p. 724. There is one Calcutta case to which I consider special reference should be made, namely, (1874) 13 Beng LR 91 at p.

101. There the question was whether an order refusing to set aside an order granting leave to sue to the plaintiff under Clause 12 of the Letters Patent was a judgment or not. In this case Couch C. J. who was responsible for the definition given in (1872) 8 Beng LR 433, stated as follows:--

"It is not a mere formal order of an order merely regulating the procedure in the suit but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have. And it may fairly be said to determine some right between them, namely, the right to sue in a particular Court and to compel the defendants who are not within its jurisdiction to come in and defend the suit, and if they do not, to make them liable to have a decree passed against them in their absence."

I conclude from this that the author of the definition which has been accepted whether actually or formally by the Calcutta High Court considered that an order determining the forum of the Court in which the suit was to be tried was an order affecting the rights and liabilities of the parties in the suit. This is exactly the case in the present circumstances. The order of this Court has determined the forum in which the suit is to be tried and therefore, according to the definition of the Calcutta High Court as interpreted by its own author this order would be a judgment within the meaning of Clause 10 of the Letters Patent corresponding to Clause 15 of the Calcutta Letters Patent".

It is unnecessary to refer to the other decisions in which this pronounced leaning towards the Madras view is adverted to.

(98) I shall next refer to the decision of the Supreme Court in Asrumati Debi's case, . In that case the Judge sitting on the Original Side of the High Court of Calcutta, exercising his powers under Clause 13, Letters Patent, transferred a suit filed in a Sub Court in West Bengal to the High Court, on the ground that the local atmosphere was surcharged with an atmosphere of prejudice created in the locality by supporters of the defendants who wielded considerable influence in the District, giving rise to a legitimate apprehension in the mind of the plaintiff that he would to get a fair trial in the Sub Court. An appeal by the defendant complaining against this order of transfer was dismissed by the appellate Bench on the ground that this order of transfer was not a judgment under Clause 15. The aggrieved defendant took up the matter further to the Supreme Court. From the judgment of the Supreme Court it is seen that the appellate Bench of the Calcutta High Court in support of its view relied upon the observations of Couch, C. J. in (1872) 8 Beng LB 433.

(99) The judgment of the Supreme Court may for purposes of convenience he divided into four parts (I) The first is where the Supreme Court adverts to the divergence of views amongst the various High Courts (about the true and proper meaning of the word 'judgment' in the Letters Patent) classifying the same under three categories and expressly stating that as the order in question in the case before them would not amount to a judgment within the reasonings of any one of the three categories it was unnecessary to express an opinion about the true meaning and scope of the word "judgment" occurring in Clause 15 of the Letters Patent. In the view of the Supreme Court, an order of transfer under Clause 13 looked at from any point of view would not amount to a judgment. At pp. 1167 = 1168 are contained the reasons as to why the Supreme Court held that an order of transfer is not a judgment. I shall advert to the same a little later.

(100) The next portion of the judgment is where the Supreme Court points out that even according to the view of Couch, C. J., an order would amount to a judgment within the meaning of Cl. 15 even though it has not decided on the merits of the controversy between the parties, but it was an order putting an end to the proceeding on the basis of a technical point like the plaint being rejected as sufficiently stamped, or as being barred by limitation. (As observed earlier, it is here that there is some overlapping between the Madras view and the Calcutta view).

(101) The third portion of the judgment is where the definition of White, C. J. in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB) is adverted to-vide p. 1168-which definition would take within its purview not only decisions in suits or actions but orders in other proceedings and applications in the course of a suit. The Supreme Court specially adverted to the important qualification made by White, C. J., in this definition that order passed in applications would not amount to a 'judgment', if the application in question is nothing more than a step towards obtaining a final adjudication in the suit. The Supreme Court, while emphasising the width of the definition of White, C. J., at the same time draws pointed attention to this important qualification, with the result that in applying the test laid down by White, C. J., in Tuliaram Row's case, ILR 35 Mad 1 (FB), each case will have to be decided on its own facts as to how far the particular order would fall within the mischief of the important qualification i.e., whether it is merely a step towards obtaining a final adjudication. In other words, in the case of miscellaneous applications or applications in the course of the suit, the fact that the order finally puts an end to or terminates that proceeding, may not be decisive factor, if at the same time the order merely settles or defines a particular step towards obtaining a final adjudication in the suit.

(102) The fourth aspect, which in my opinion is a very important aspect, is the portion where the Supreme Court refers to the principle and the ratio underlying the decision in (1905) ILR 29 Bom 249, while rejecting the arguments of appellant's counsel (Mr. N. C. Chatterjee) that considerations which apply to an order refusing to rescind leave granted under Cl. 12, Letter Patent, would apply to an order transferring the suit under Cl. 13 of the Letters Patent. The Supreme Court has pointed out that an order refusing to rescind leave granted under Cl. 12 stands on an entirely different footing in the view that if such leave is rescinded the suit would automatically come to an end, while in striking contrast, in the case of an order under Cl. 13, the suit is still kept pending except that it will have to be disposed of by a different Court. In the former case according to the Supreme Court, there is an important adjudication of a right while in the latter case there is none. What is really significant and important from our point of view, in this Full Bench reference, is the pointed reference made by the Supreme Court to the significant setting in which White, C.J., in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB) referred to (1905) ILR 29 Bom 249. It is necessary to refer again to the observations of White, C.J., as extracted in the Supreme Court decision at p. 1168 (of SCR) = (at p. 201 of AIR):

"As regards the Bombay authorities I may refer to (1905) ILR 29 Bom 249 where it was held that an appeal lay from an order dismissing a Judge's summons to show cause why leave granted under Cl. 12, Letters Patent, should not be rescinded and the plaint taken off the file. Here the adjudication asked for, if made, would have disposed of the suit. So also would an order made under an application to revoke a submission to arbitration. I think such an order is appealable."

The words "There the adjudication asked for, if made, would have disposed of the suit" are italicised in the judgment of the Supreme Court. From this, if one could speculate, it is clear that the Supreme Court regards White, C.J., propounding another distinct test which may be conveniently described as the "conceivable order, theory", based upon the decision of the Bombay High Court in (1905) ILR 29 Bom 249, which in its turn followed the decision in (1874) 13 Beng LR 91. In (1905) ILR 29 Bom 249, it was an application for rescinding leave granted under Cl. 12. We may conceive of numerous instances, in which other proceedings may be initiated or other applications filed which, if they end in (favour of the party resisting those proceedings), would put an end to the suit or the proceeding, but, the order, however, being one of rejection of such objection, has allowed the proceeding to continue.

Still, the aggrieved party would be entitled to prefer an appeal under Cl. 15, on the reasoning, that there is a possibility of his succeeding in his contention, in which event, it would have put an end to the suit, or proceeding and he should therefore be entitled to prefer an appeal, as he has been deprived of that right, by a supposed wrong or erroneous order of the single Judge. The Supreme Court pointed out that this test of "a conceivable order theory" which is implicit in the observations of White C.J., would mean that an order dismissing the application of the party concerned wound amount to a judgment if that decision is on a vital point adverse to the defendant, which goes to the very root of the suit and has become final and decisive, against him so far as the Court making the order is concerned, and that this test is implicit even in the early Calcutta case, (1874) 13 Beng LR 91. It is necessary to extract the following observations of the Supreme Court at p. 1168 which brings out this idea:-

"Leave granted under Cl. 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the other hand, an order is made dismissing the Judge's summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out, that a decision on a vital point adverse to the defendants, which goes to the very root of the suit, becomes final and decisive against him so far as the Court making the order is concerned. This brings the order within the category of a "judgment" as laid down in the Calcutta cases. We need no express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is a difference between an order refusing to rescind leave granted under Cl. 12 of the Letters Patent and one under Cl. 13 directing the removal of a suit from one Court to another, and there is no good reason to hold that the principle applicable to one applies to one applies to the other also."

Before I proceed further I must advert to an important aspect which emerges from the passage extracted above, i.e., that the Supreme Court is not expressing its final opinion about the propriety or otherwise of this view and that it merely refers to this test as implicit in (1874) 13 Beng LR 91 (1905) ILR 29 Bom 249 and elaborated in the observations of White, C.J., in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB). I am not prepared to accept the argument of Mr. M. S. Venkatarama Aiyar that the Supreme Court has impliedly approved of this conceivable order theory. I have no doubt in my mind that the Supreme Court has not expressed any view, express or implied, either way, about the propriety or otherwise of this test.

(103) In this connection, I may refer to the decision, in , the judgment of Chakravarthi, C. J. and Sarkar, J., vide the observations of the learned Chief Justice at p. 733 in which a similar argument that the Supreme Court has approved of the 'conceivable order theory' was rejected. After referring to the observations of the Supreme Court already extracted in this judgment the learned Chief Justice observed as follows:--

"It was contended on behalf of the appellant that the Supreme Court were approving of what they set out as the view of Sir Lawrence Jenkins, because they used the expression "the result is, as Sir Lawrence Jenkins pointed out" and, therefore, they were quoting what Sir Lawrence Jenkins had said with approval. I cannot accept that contention, because the judgment proceeds to say that the Court was not expressing any final opinion as to the propriety or otherwise of the view expressed by Sir Lawrence Jenkins. The words as Sir Lawrence Jenkins pointed out' merely mean 'according to Sir Lawrence Jenkins' or "as it has been put by Sir Lawrence Jenkins". But the fact remains that the Supreme Court did not disapprove of the decision in (1874) 13 Beng LR 91."

In two later cases in and , the

Supreme Court had occasion to advert to this divergence of views as to the proper interpretation of the term "judgment" occurring in Cl. 15, and on both the occasions the Supreme Court left the question open, and did not express its views, as the facts of the two cases did not require a final pronouncement on the question. The position, therefore (so far as the Supreme Court is connected), is, that either by way of a direct pronouncement or by way of observations and comments from guidance, the landmark is .

(104) I shall now sum up my analysis of the legal position upto :

(a) The Supreme Court has expressly left the matter open for decision on a future appropriate occasion as to the correctness of the rival points of view revealed in the divergence of judicial decisions :

(b) So far as Madras is concerned, the tests laid down in Taljaram Row's case, (1912) ILR 35 Mad 1 (FB) will have to be applied in each case, to determine whether or not an order is a 'judgment'.

(c) According to the Supreme Court, the effect of the observations of White, C. J., in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB) is that the learned Chief Justice has propounded, with greater elaboration "the conceivable order", implicit in the decision in (1874) 13 Beng LR 91 and (1905) ILR 29 Bom 249. While extracting the observations of White, C. J., this particular sentence therein "here the adjudication asked for, if made, would have disposed of the suit" has been italicised by the Supreme Court, to draw pointed attention that it is one of the crucial tests according to White, C. J., I have no doubt that is the only purpose, as I have already rejected the arguments that the italics indicated an express approval of this view by the Supreme Court.

(d) According to the Supreme Court, (1905) ILR 29 Bom 249 is authority for the position that a decision on a vital point adverse to the defendant which goes to the very root of the suit and which becomes final and decisive against him so far as the Court making the order is concerned, is a 'judgment' under Cl. 15.

(e) The only portion of the judgment in , which

contains a direct pronouncement in the law is where the Supreme Court gives reasons for holding that an application for a transfer of a suit under Cl. 13 is not a judgment under Cl. 15 of the Letters Patent, in striking contrast to an order in an application under Cl. 12 for revocation of leave granted to institute the suit.

(105) According to the Supreme Court an order in an application for transfer under Cl. 13 is not a judgment because--

(1) The order transferring the suit is not at all an order made by the Court in which the suit is pending and the order for transfer instead of putting an end to the suit, keeps the suit perfectly alive and that very suit is to be tried by another Court, the suit being continued without any break from the stage if was on the file of the first Court;

(2) An order under Cl. 13 does not determine any right or liability of the parties and such an order is passed essentially as a step in the further progress and prosecution of the suit.

(3) There is a vital difference between the incidents and scope of an order refusing to rescind leave granted under Cl. 12 and one under Cl. 13 directing the removal of the suit from one Court to another and the principle applicable to one has no applications to the other.

The decision in ILR 48 Mad 700 = (AIR 1925 Mad 167) can be said to have been overruled by Asrumati Debi's case, only, if it can be postulated, that the scope of the application for leave to institute a suit in forma pauperis, the nature of the right asserted therein, and the scope of and the legal incidents of the order passed therein, are, in all essential particulars, the same as in the case of an application for transfer under Cl. 13 and the nature of the order passed therein. On the other hand, if the two proceedings and the orders passed therein, are essentially and fundamentally different, the correctness of the view taken in Baba Sah's case, ILR 48 Mad 700 = (AIR 1925 Mad 167) will have to be judged only in the light of the tests propounded in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB).

(106) I shall now consider the nature and character of a proceeding under Or. XXXIII, C.P.C., and the order passed therein. Looking at the scheme or object underlying Or. XXXIII, C.P.C., and the nature of the provisions contained therein, I am of the clear opinion, that the decision either way on an application for leave to sue in forma pauperis necessarily involves an adjudication, upon a right or a point, which is of vital importance to the parties concerned. The order that is passed is not an inconsequential, unsubstantial or an incidental order like fixing the date for hearing; or an order for adjournment, etc. As pointed out by the Privy Council in (1878-80) ILR 2 All 241 (PC), it is a right of both the parties to a proceeding that they should fight a litigation on equal terms. If a party desires to institute a suit as a pauper, without payment of court-fee, it is not an unilateral or unqualified right of his own choice or volition. But he must strictly satisfy the provisions of Or. XXXIII.

A careful scrutiny of the provisions shows that while it is the applicant's right to be permitted to institute the suit as a pauper on proof of compliance with the conditions of Or. XXXIII it is equally the right of the defendants to resist such an attempt on the part of the plaintiff, by establishing that the plaintiff has not complied with those provisions. The applicant has to comply with some provisions which are formal, like as to what the petition should contain, how the application has to be presented etc. At the same time, there are also important requirements which go to the root of the matter and they are embodied in O. XXXIII, Rule 5. This provision deals with the stage when the Court can reject an application without even hearing the defendant, if the Court is prima facie satisfied that the applicant suffers under any or all of the disqualifications mentioned in R. 5. Rule 6 provides that if the Court sees no reason to reject the application in limine, it shall fix a date for further hearing, giving notice to the opposite party as well as to the Government for receiving such evidence as the applicant and the opposite party may adduce on the question as to how far the applicant is subject to any of the disqualification covered by R. 5.

(107) At this stage, it is necessary to refer to the provisions on Or. XXXIII, R. 6, as amended by the Madras High Court. In the provision as unamended, the applicant as well as the opposite party can adduce evidence only in proof of pauperism or disproof thereof. Evidence cannot be adduced by either of the parties in respect of the other disqualifications mentioned in Or. XXXIII, R. 5 though after the evidence on the question of pauperism is recorded, the Court may hear arguments from both sides with reference to all the prohibitions covered by R. 5. Under the rules as now amended by the Madras High Court, both parties can adduce evidence touching all the aspects covered by R. 5. If the Court, after recording the evidence and hearing the arguments as provided in rules 6 and 7, holds that the applicant is entitled to sue as a pauper, leave is granted, and then the application is registered as a plaint for being thereafter dealt with, in all other respects as a suit instituted in the ordinary manner.

Rule 15 provides that if the Court refuses to allow the applicant to sue as a pauper, such an order of refusal would operate as a bar to any subsequent application of a like nature, in respect of the same right to sue. The applicant, however, is at liberty to institute a suit in the ordinary manner after paying the costs incurred by the State and the opposite party who opposes his application for leave to sue as a pauper. An examination of the provisions of rules 5, 6 and 7 leaves no room for doubt that all these provisions in rule 5 which are in the nature of disqualification are concerned, mainly in the interests of the opposing party, thereby, clearly emphasising that it is as much a right of the defendant, indeed, a very valuable right, to establish that the plaintiff has no right to institute the suit as a pauper. It is significant to mention, that in Madras amendment in rule, after sub-clause (d) another disqualification is added as R. 5(d)(i), i.e. "Where the suit appears to be barred by any law". If the intention of the legislature were, that the question right to institute a suit in forma pauperis is of no real concern of the defendant in view that it is merely a question of revenue to the State, the machinery provided by rules 4 and 5 would have been quite sufficient. The duty cast upon the Court of being prima facie satisfied that the plaintiff is not subject to any of the prohibitions of rule 5, would be an adequate safeguard to protect the State in respect of its revenue. The second important stage in which the defendant is given a real opportunity, to adduce evidence, and also address arguments opposing the application with reference to all the prohibitions or disqualifications in rule 5 shows that this proceeding is a judicial proceeding in every sense of the term and involves an adjudication of a right of vital and involves an adjudication of a right of vital importance to note that rule 7 provides that the Court shall make a memorandum of the substance of the evidence adduced by the parties. As observed in (1901) ILR 23 All 364, an order in an application to sue in forma pauperis is an order affecting the institution of a suit.

(108) From the point of view of a pauper plaintiff, an order rejecting his application is undoubtedly (it is not disputed) a judgment under Cl. 15. When leave is refused, the proposed suit will not be on the file of the Court at all, and so far as the Court is concerned, there is undoubted termination of the proceedings. The rejection of the application may be, for all or any of the disqualifications contained in rule 5 and it need not be restricted to the question of the applicant's means to pay the court-fee. If the application is rejected for any disqualification other than the pauperism, the order of rejection takes effect immediately and there is nothing further to be done in the Court or by the Court which passed the order. The proceeding initiated by the applicant under Or. XXXIII is complete and at an end and it is immaterial that another suit should be filed in the same or another Court after removing the defects which led to the order of rejection.

Even if the rejection of the application is on the question of the applicant's means or pauperism, the legal consequence is the same. Though the applicant is invariably given some time under S. 149, C.P.C. to pay the requisite court-fee, the court-fee payable may be very stiff, as in one of those cases before us (the court-fee payable being Rs. 33,500) and the plaintiff may not be able to find the money. From the applicant's point of view, the grant of time to pay the court-fee consequent upon the adverse finding against him on the question of pauperism does not affect the legal position. He is straightway entitled to prefer an appeal even before the expiry of the time fixed for the payment of court-fee.

(109) Let me pursue the matter from the point of view of the defendant. So far as the defendant is concerned, his right is a valuable right not to be harassed by paupers, with frivolous and vexations litigations or litigants who have no real interest in the subject-matter of the litigation, they having already entered into champertous agreements with third parties. I may refer to the observations of Subba Rao, C. J., in the Bench decisions in Venkatasubbiah v. Thirupathiah, regarding the object underlying Order XXXIII:

"Order 33 has been enacted to serve a treble purpose: (1) to protect the bona fide claims of a pauper, (2) to safeguard the interests of revenue and (3) to protect the defendant's right not to be harassed. By enabling the Court to prevent persons with property from suing as paupers or third parties who acquire an interest in the claims of paupers from using the names of paupers and to dismiss petitions which do not "ex-facie" disclose a subsisting cause of action, the interests of bona fide paupers are safeguard and defendants are protected from unnecessary harassment."

Let me consider the relevant prohibitions or disqualifications contained in rule 5 as to how far they are of vital importance to the defendants. Rule 5(b) "where the applicant is not a pauper". A pauper is defined as a person who is not passed of sufficient means to enable him to pay the fee prescribed by law in such a suit. Sufficient means in the case, means possession of sufficient realisable property which would enable the plaintiff to pay the court-fee and possession of hard cash is not necessary to hold that a person is possessed of sufficient means within the meaning of this rule. If the defendant succeeds in establishing that the applicant has sufficient means and is, therefore, not a pauper, it cannot be denied that great advantage will accrue to the defendant. It may be, that at that stage, lapse of time would have operated against the plaintiff if he were to file, thereafter, a suit in the ordinary manner; the claim would have been barred by limitation, and the rights of the plaintiff would have been extinguished for ever, or it may be, that the claim is too high and inflated and the plaintiff may reduce the claim considerably in proportion to his means available to pay the court-fee, giving up the rest of his claim, in which situation, the defendant would have gained the advantage relating to the claim that is abandoned or has become barred by limitation. It is clear, therefore, that this provision of disqualification, rule 5(b) is of great importance and significance to the defendant.

(110) Rule 5(c) is again of vital importance to the defendant. It cannot be doubted, that a person who has alienated his property fraudulently, in order to be able to apply for permission to institute the suit as a pauper, should not be allowed to invoke the provisions of Or. 33. Surely this provision is not meant for such dishonest litigants. If the defendant can succeed in making out that the applicant suffers under the disqualifications in R. 5(c), the same legal consequences as in rule 5(b) will follow resulting in several benefits to the defendant. The provisions in rule 5(d) and (d-1) are put in, as safeguards for the defendant that he should not be harassed by frivolous or vexatious litigations. It cannot be disputed that these provisions in Rule 5(d) and (d-1) are very salutary provisions mainly from the point of view of the defendant. But for these prohibitions, frustrated and disappointed paupers will be indulging (without any limit or restriction) in useless frivolous protractive litigations, harassing the opponents, even resulting in blackmail the applicants themselves having no faith whatsoever, in their case.

In order to effectively prevent such vexatious litigations, the defendant is clothed with a valuable right, to establish that on the plaintiff's own allegations in the plaint, the plaintiff has no cause of action or that the claim is barred under law. It is true, that at this stage, the Court cannot embark upon a detailed investigation into the merits of the rival contentions of the parties and that the scope of the enquiry is summary in character and restricted to the allegations in the plaint. This restriction, in the scope of the enquiry, in my opinion, reinforces this reasoning that the provisions in rule 5(d) and (d-1) are conceived in the interests of the defendant. As observed earlier, the defendant is given a valuable right to draw the attention of the Court even at that stage that the plaintiff on his own allegations, should not be harassed or vexed with such frivolous and useless claims.

It does not require further elaborations to show that if the provisions like rule 5(d) and (d-1) are not contained in rule 6, there will be a flood of useless litigations by paupers in which the other party is exposed to all vexation, expenses, worry, etc. Here too, the same reasonings will apply that if the defendant succeeds on his objections raised by him under rule 5(d) and (d-1), great advantages and benefits will accrue to hi, depending upon, that attitude the plaintiff may pursue thereafter, and the difficulties arising out of lapse of time which may confront the plaintiff consequent upon the rejection of his application. The prohibition in rule 5(e) is based upon the evil and the mischief flowing from champertous agreements entered into by the applicant by which third parties obtain an interest in the subject-matter of the litigation. If these prohibitions were not there, paupers will be used as mere tools, for gambling in litigations by interested designing third parties, the advantage or the benefit of the litigation, enuring for the benefit of the latter.

This would totally frustrate and defeat the very object underlying Order 33 which is to afford some facility to genuine and real paupers. It cannot be gainsaid that from the point of view of the defendant, the prohibition in R. 5(e) is of a vital importance. It will be sheer abuse of process of Court if a person having entered into champertous agreements and therefore having no real interest in the subject-matter in dispute should be allowed to institute a suit in forma pauperis not for his benefit but for others. I have said enough to demonstrate that in respect of every aspect of prohibition or disqualification covered by rule 5(b) and (e), the decision of the Court involves an adjudication of a right and a decision on point or points of great and vital importance to either of the parties.

(111) For all these reasons, I have no hesitation in holding that there is no warrant in principle that the defendant should be denied a right of appeal when according to him, the order of the trial Court overruling his objection is wrong, particularly when the Court specially provides an opportunity for him to adduce evidence and also address arguments on all the aspects covered by rule 5. If the defendant succeeds as claimed by him, that would put an end to the proceeding. In this view, it makes no difference whether an application under O. 33 is regarded as a plaint right from its inception or regarded as a composite document as a plaint plus an application for permission to sue in forma pauperis or is regarded as nothing but an application simpliciter. A Full Bench decision of the Allahabad High Court in has recently considered the precise nature of an application to sue as a pauper; this decision contains a detailed discussion of the relevant cases on the point.

It is unnecessary to express a final opinion on this aspect as to how far the view expressed in this Full Bench decision is in consonance with the statement of the law in the recent decision of the Supreme Court in Vijai Pratap Singh v. Dukh Haran Nath Singh, . So far as this Court is concerned, in ILR (1947) Mad 820 = (AIR 1947 Mad 405), a Bench has taken the view that having regard to the observations of the Privy Council in (1878-80) ILR 2 All 241, an application for leave to sue in forma pauperis is to be regarded as a plaint coupled with a prayer to be allowed to sue without payment of the required court-fee.

(112) Whatever may the label tat may be given to it, it is clear that this is a distinct separate proceeding in which the order that is passed is a judicial order. With great respect to the learned Judges, who decided the case in , I am of the view that on

their own reasoning, an order granting leave to sue in forma pauperis would be a judgment under Cl. 15. Ramachandra Iyer, C. J., who delivered the judgment, has stated the principle of the decision of the Supreme Court in Asrumati Debi's case, in these terms at page 266, with reference to an order passed on an application for transfer under Cl. 13:

"Nevertheless the Supreme Court regarded the circumstance as immaterial as in its view the question whether a particular order of a single Judge amounts to a judgment or not had to be determined on the basis of its effect in the suit itself....... If leave were refused the intended suit will not be on the file of the Court at all; in consequence so far as the Court is concerned, there will be a termination of the proceedings. But where leave due is granted, the position will be different.

It is implicit in this reasoning that an application for leave to sue in forma pauperis is not a mere step towards adjudication. For, if that were so, a rejection of such an application will not amount to a 'judgment'. If, therefore, from the point of view of the plaintiff, it is not a mere step towards a final adjudication but a distinct separate proceeding, whatever may be its nomenclature, that proceeding cannot change its character, because, the order is the other way, granting leave. With great respect to the learned Judges who decided and Cork Industries case, , I am of

the view that a proceeding under Or. XXXIII, C.P.C., is not analogous to an application for transfer under Cl. 13. In my view, entirely different considerations will apply to the two sets of proceedings.

In the case of an application for transfer under Cl. 13, or in the case of an application for stay of the suit under S. 10, C.P.C., the application, right from its inception, is a mere step towards further progress and adjudication of the suit, and whatever may be the nature of the order either for or against the application, the order is not a judgment, because it determines no right of either of the parties and at the same time keeps the suit fully alive. It is like many other orders (already referred to) which are passed frequently in pending suits towards their further prosecution. Neither of the parties is entitled to prefer an appeal against such orders. In the absence of specific legislative provision to the contrary, there is no legal basis for the view, that only one of the parties will be entitled to a right of appeal when he is aggrieved by the order, but the other party, even though aggrieved by an order in the same proceeding, would not be entitled to a right of appeal. According to juristic principles there should be no such distinction and the order must be appealable whether it upholds or negatives, the existence of a "right asserted" and "denied" in a proceeding.

(113) Secondly, applying the reasoning in Cork Industries case, "that the character of the Order will have to be

determined on the basis of its effect in the suit itself", no distinction in principle can be made between an order granting leave and an order refusing leave to institute the suit in forma pauperis. If the plaintiff succeeds and obtains leave, the suit comes into existence. That is a positive effect if I may use that expression, in the suit which comes into existence. On the other hand, if the order is in favour of the defendant, he would have successfully prevented the suuit itself coming into existence in the proceeding initiated by the applicant. The effect of this order on the suit is negative, as it completely and effectively stifles or aborts the proceeding even on at the threshold. It is here, that the principle "conceivable order test" referred to earlier comes into operation.

With great respect to the learned Judges, this important aspect has not been given adequate consideration in union of India's case and in Cork Industries case, . At

this stage, it is relevant to extract the following observations of Rajamannar, C. J., who delivered the judgment on behalf of the Bench in Union of India's case, :

"Here the order refusing to dispauper the plaintiff certainly did not terminate the suit. On the other hand, it allowed the suit to continue. Nor did the order affect the merits of the controversy between the parties. Whether the plaintiff was a pauper or not was not one of the matters in dispute in the case."

With great respect to the learned Chief Justice, this is not a complete statement of the legal position. this reasoning cannot completely apply to an order dismissing an application to revoke leave granted under Cl.

12. Such an order does not put an end to the suit but allows the suit to continue. But yet, such an order is a judgment. Secondly, the observations extracted above are made solely with reference to the suit as such, overlooking that even before the suit comes into existence there is a distinct prefactory proceeding, in which the only matter that is in dispute, is whether or not the applicant is a pauper. The test in Tuljaram Row's case, (1912) 35 Mad 1 (FB) covers not only orders on points which are in dispute in the suit but also on matters in dispute in separate proceedings whether an independent proceeding or a proceeding in the suit itself.

(114) With great respect to Ramachandra Iyer, C. J., who delivered judgment on behalf of the Bench in Cork Industries case, on his own reasoning, that it is, equally a right of the defendant not to be harassed by paupers, it must be held that an order which negatives his right, should be held to be appealable. The following observations of Ramachandra Iyer, C. J., at p. 266 (of Mad LJ) = (at p. 88 of AIR), far from supporting the decision reached therein, reinforce the aspect that I have stressed:

"It may be that frivolous litigations might be encouraged by indiscriminate grant of leave to sue in forma pauperis. There can however be no apprehension on that score as an order granting leave is a judicial order."

The emphasis, that the order granting leave, is a judicial order is undoubtedly a strong circumstances for holding that the order is an appealable one. At any rate, it does not justify the inference or support the reasoning that the order is not a judgment. Lastly, it is to be noticed (with great respect to the leaned Judges) that in both the Bench decisions the "conceivable order test" contained in Tuljaram Row's case (1912) ILR 35 Mad 1 (FB) was neither applied nor considered.

(115) At this stage, I may refer to the Bench decision in AIR 1931 Bom 166, a judgment of Beaumont, C. J. and Blackwell, J., in which it was held that an order refusing leave to institute a suit in forma pauperis is a judgment and therefore appealable. Beaumont, C. J., has observed as follows at p. 166:-

"Here the question between the parties at the present moment is as to whether the appellant is entitled to sue as pauper. under Or. 33 he is given, if he complies with certain conditions, a substantive right to sue as a pauper, and the decision of the learned Chamber Judge in this case has deprived him of that right. I think, therefore, that the learned Judge's decision affects the merits of question between the parties by determining that the plaintiff has no right to sue the defendant as a pauper."

From the above observations of Beaumont, C. J., it is seen that a decision on the question as to whether the applicant is entitled to sue as a pauper is a determination upon the substantive right of a litigant and that an order which has deprived the litigant and that an order which has deprived the litigant of that right (to sue as a pauper) would be a judgment. On the same reasoning, it must necessarily follow that if the order on the other hand upholds the right of the plaintiff, it must be held to be appealable as the order at the same time involves the negativing of the right of the defendant.

(116) Blackwell, J. rejected the argument that the question as to what is a judgment under Cl. 15 can only have a reference to the question arising in the suit after it has been registered and not earlier. The learned Judge was of the opinion that by the terms of the C.P.C. a right is afforded to a litigant and the determination of that right may be either way and an adjudication of that right would be appealable whether for or against one party or other. The important point of significance in this decision is that this decision dealt with an order refusing leave to institute a suit in forma pauperis but applied and followed the principle and the reasoning contained in the Baba Sah's case, ILR 48 Mad 700 = (AIR 1925 Mad 167), which dealt with an appeal against an order granting leave. It is obvious from this decision, that the learned Judges of the Bombay High Court were of the view that identical considerations would apply and no distinction can be made between one kind of order and the other, on the question of appealability, i.e., there is no difference between an order granting leave and an order refusing leave.

If from the point of view of the plaintiff, the right is a very valuable important or a substantive right (whatever may be the adjective used), it must be equally, a valuable substantive and important right, from the point of view of the defendant who resisted the claim of the plaintiff. In my opinion, on first principles, there cannot be any distinction between an order upholding the "assertion of such a right" and an order upholding "the denial of such a right". It will be a different matter if there is any specific statutory provision to the contrary as we find for example in Or. XLIII, R. 1, C.P.C., which enumerates appealable orders in some of which a right of appeal is recognised in favour of one party to the proceeding, while the other party his opponent has no such right.

(117) For all these reasons, I hold that the decision in Asrumati Debi's case, cannot he held to have overruled the

Bench decision in Baba Sah's case, ILR 48 Mad 700 = (AIR 1925 Mad 167) and the view taken in the later decision is correct as being in consonance with the tests laid down in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB). With great respect, I am also of the view that the later decision of this Court in Rarichan's case, ILR 59 Mad 656 = (AIR 1936 Mad 387), Union of India's case, , Cork Industries

Case, have not applied correctly the several tests laid down in Tuljaram Row's case. (1912) ILR 35 Mad 1 (FB).

(118) There is also one other important aspect, from which, it is to be held that an order granting leave to institute a suit in forma pauperis would be a judgment under Cl. 15. After the suit is finally disposed of in a regular appeal from the decree therein, the defendant cannot question the correctness of the decision granting leave to the plaintiff to institute the suit in forma pauperis. Vide (1901) ILR 23 All 364. That order granting leave had become final and decisive so far as he is concerned, the moment it came to be passed. In the regular appeal from the decree in the suit, the defendant cannot complain that the order of the single Judge is wrong, that the plaintiff has ample means to pay the court-fee, or that he has fraudulently alienated his properties prior to the suit, with a view to enable him to institute the suit in forma pauperis or that the plaintiff had entered into a champertous agreement with a third party concerning the subject matter in litigation. He cannot complain that the decision rendered by the learned single Judge, on these aspects was erroneous or wrong and that the evidence adduced touching these matters has not been properly assessed. In this connection it is necessary to refer to the decision in ILR 50 Mad 770 = (AIR 1927 Mad 846). The following headnote brings out the principle clearly:--

"An order of a single Judge of the High Court refusing to revoke an order granting leave to sue on the Original Side of the High Court, is not appealable, under Cl. 15, Letters Patent, if the question of jurisdiction of the High Court to entertain the suit is still open to the defendant and can be raised on an appropriate issues at the trial of the suit; but if the order has finally shut out the defendant from thereafter pleading that the suit should have been dismissed on the point of jurisdiction, then the order is a judgment and is appealable........"

In that case, an application, to revoke the leave granted to institute the suit on the Original Side of this Court was filed, by the defendant, alleging that a particular property called "Dinnore house" situated in Madras was fraudulently included by the plaintiff so as to bring the suit within the jurisdiction of this Court. But this application was dismissed and the defendant preferred an appeal under Clause 15. On the question of the maintainability of the appeal, reference was naturally made to (1874) 13 Beng LR 91 and (1905) ILR 29 Bom 249. Wallance J. delivering the judgment of the Bench upheld the preliminary objection, in the view, that the question whether the claim in respect of the particular property was bona fide or whether it was fraudulent, could well be decided in the suit itself and therefore an appeal under Clause 15 would not lie. He observed as follows at pages 774 and 775 (of ILR Mad) = (at pp. 847-848 of AIR):--

"In that view it appears to us that it cannot be maintained with reason that the grant of leave to sue is not a judgment within the meaning of Clause 15, Letters Patent, if the order has finally shut out the defendant from now pleading or being heard on the question that the suit should have been so dismissed on the point of jurisdiction. If this refusal to dismiss the suit is in effect a final judgment against a dismissal of the suit on the ground of jurisdiction, a judgment which cannot be attacked in appeal because the matter of jurisdiction will not ex hypothesi be made a matter of issue in the suit, then it will in our view be a judgment within the scope of the test set out in (1912) ILR 35 Mad 1 (FB). But if the question of the jurisdiction of this Court to entertain the suit is still open for decision at the trial of the suit, then in our view the order passed is not of a final nature and would not be a judgment. Mr. Grant for the plaintiff stated before us that the plaintiff's position was that the question of jurisdiction is still for decision on an appropriate issue in the issue in the suit. The defendant's learned vakil was doubtful if that was so and whether the order granting leave to sue did not finally dispose of the question of jurisdiction. That we think is not necessarily so. A Court has always jurisdiction to try on an appropriate issue in a suit whether it has jurisdiction or not to try the suit, that is, to act in motion the process by which the various points at issue between the parties including that of jurisdiction fall to be decided".

Applying the principle of this case, the order granting leave to institute the suit in forma pauperis should be held to be appealable as the order in question has finally shut out the defendant from thereafter urging that the plaintiff has not complied with the conditions of Or. XXXIII Rule 5 C. P. C.

(119) This principle that whether or not the defendant will have a right or an opportunity to canvass the correctness of a particular order of the single Judge in a regular appeal from the decree, has an important hearing upon the question whether the particular decision would amount to a judgment under Clause 15, was applied by a latter Bench decision of this Court in . In that case, a suit on a foreign judgment was filed as a summary suit under Or. VII of the Original Side Rules and the defendant took out an application to convert or treat the suit as an ordinary suit. But this application was dismissed and the defendant preferred an appeal. The Bench dismissed the appeal upholding the preliminary objection on two grounds; firstly, that this application was not an independent proceeding auxiliary to the suit and that in any event, the order did not put an end to the suit or the proceeding. The other ground for dismissing the appeal is the application of the principle in ILR 50 Mad 770 = (AIR 1927 Mad 846), referred to earlier that the defendant has ample opportunity to question the correctness of the order in question in a regular appeal from the decree. Rajamannar C. J. delivering the judgment explained the position in these terms:--

"There is one other aspect of the matter which I should not omit to mention. A question arose whether the defendants would have the right to challenge the correctness of the order under appeal at any later stage. The defendants have already filed an application for leave to defend. If that is granted, the defendants may not be any longer interested in getting the present order vacated. But in cases leave to defend is refused then a decree will follow. Against the decree the defendants would undoubtedly have a right of appeal. I think that in the appeal the defendants may also take a ground that the suit was not properly brought under Order 7 of the Original Side Rules. This is on the principle embodied in Section 105 C. P. C. In A. S. Chettiar Firm v. Veerappa Chettiar, AIR1935 Rang 245, this principle was applied to a case analogous to the case on hand. It was held there that an order granting conditional leave to defend to a defendant was not a judgment as the order merely regulated the procedure in the suit. But it was further held that it was open to the defendant to canvass the validity of the order under Section 106 C. P. C., when he appeals against the decree. The decision in Madanlal Lachmandas v. Kedarnath, AIR 1930 Bom 364 at p. 365, is another instance of the application of this principle".

(120) Following the principle for the above decisions I hold that the orders in question are appealable.

(121) Learned counsel on both sides referred us to other decisions, both of this Court as well as other Courts in which the scope of Clause 15 cam up for consideration, in other proceedings like an application to restore a suit dismissed for default; application to set aside an ex parte decree, application to set aside an abatement and application to set aside an abatement and application to excuse the delay in filing an appeal etc. In some of these cases cited the decisions are not uniform even though the same rule or principle must apply to these cases. The test of "conceivable order theory" was neither considered nor applied in those decisions. The reasonings contained in the earlier decisions may require further investigation in the light of the reasonings contained in this judgment. I shall therefore merely content myself by making a passing reference without expressing any final opinion.

(122) I may first refer to the decision ILR 56 Cal 135 = (AIR 1929 Cal 214) (FB), in which it was held that an order excusing the delay in filing an appeal is not a judgment under Clause 15 and therefore no appeal would lie from such an order. This contains a reference to the earlier decisions, particularly to the decision in ILR 49 Cal 62 = (AIR 1922 Cal 335) and ILR 49 Cal 616 = (AIR 1922 Cal 407). In ILR 49 Cal 62 = (AIR 1922 Cal 335), it was held that an order setting aside an order of abatement of a suit is a judgment under Clause 15, Letters Patent and is therefore appealable, the reasoning being that the setting aside of the abatement deprives the party, in whose favour the abatement operates, of a valuable right. In ILR 49 Cal 616 = (AIR 1922 Cal 407), it was held that no appeal would lie from an order passed under Order IX Rule 9 C. P. C., restoring a suit which was dismissed for default.

It will at once be noticed that in both these cases the order deprives one of the parties to the litigation of a valuable right that has accrued, in the one case by abatement, in the other case by the order dismissing the suit. The entire controversy between the parties is revived and the suit has to be decided on its merits. Yet diametrically opposite views have been taken. That was perhaps the reason why Rankin C. J. in ILR 56 Cal 135 = (AIR 1929 Cal 214 FB), observed that "Even within this limited range, however, it cannot be said with confidence that the decided cases are uniform or consistent". He also observed that no distinction can logically or practically be maintained between an order setting aside an abatement and an order restoring a suit after dismissal for default. If the "conceivable order theory" is to apply to the facts of the case in ILR 56 Cal 135 = (AIR 1929 Cal 214 FB), it may be possible to take a different view, because, if the party opposing an application to excuse the delay in filing the appeal succeeds that would have put an end to the appeal itself and he would not have been deprived of the right which has accrued to him as a result of the decision of the trial Court having become final.

(123) I may also refer to a recent Bench decision of the Calcutta High Court in , in which it was held, following ILR 49 Cal 616 = (AIR 1922 Cal 407), that an order restoring a suit which was dismissed for default is not a judgment under Clause 15. The main reasoning on which this conclusion is reached is that as a result of the order restoring the suit, the suit is kept pending for further hearing on its merits, that the order decides nothing on the merits which are in controversy between the parties. Chakravarthi C. J. observed as follows at page 396:--

"The distinction made in favour of orders refusing to set aside a decree has been criticised on the ground that an order setting aside a decree also disturbs a decision affecting the merits of the controversy between the parties. This criticism does not appear to me to be correct, because although the decision embodied in the decree is undoubtedly disturbed in such a case and although the party in whose favour the decree operated is undoubtedly deprived of a valuable right, nothing is in face decided, because although the controversy is reopened the same decree may again be made. That the dismissal is set aside and the suit restored does not mean that the suit is decreed or anything is decided. It seems to me to be entirely correct to say that such an order i.e., an order setting aside a decree and restoring the suit, is not a judgment and therefore not appealable".

"The conceivable order test" is neither considered nor applied in this decision, and if that test is applied the order must be held to be appealable as the defendant could well have succeeded in establishing that the suit is not liable to be restored. Further, with great respect to the learned Chief Justice, it is a matter of consideration, why the defendant should not have a right of appeal, when, according to the learned Chief Justice, the order in question has undoubtedly deprived the defendant of a valuable right. The fact that when the suit is restored nothing is decided in the suit is not the decisive factor. If the matter is considered from the point of view of the defendant, it will be seen that the suit has ended in his favour but by the order it is reopened.

(124) I may next refer to two decisions of the Bombay High Court. In AIR 1938 Bom 408, it was held that an order setting aside an abatement is not a judgment on the ground that that order does not affect the merits in dispute between the parties. The inconsistency in the reasonings between the two decisions of the Calcutta High Court in ILR 49 Cal 62 = (AIR 1922 Cal 335) and ILR 49 Cal 616 = (AIR 1922 Cal 407), was referred and the latter decision was followed. Beaumont C. J. expressed himself in these terms:--

"An order setting aside an abatement does not affect the merits of the dispute between the parties, though it certainly determines a right, because in the absence of such order the plaintiff is debarred from suing the defendant for the amount claimed. The order is really one in procedure. The plaintiffs originally had a cause of action, which through no fault of their own came to an end by the death of their opponent, and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition".

Here too the "conceivable order theory" was neither considered nor applied. Secondly, from the passage extracted above, it will be seen that the learned Chief Justice accepts that the order setting aside an abatement certainly determines a right, in the view, that in the absence of such an order the plaintiff is debarred from suing the defendant for the amount claimed. With great respect to the learned Chief Justice, the question is not free from difficulty, as to why the defendant is not entitled to prefer an appeal when there is a determination of a right and he has been deprived of a valuable right.

(125) Our attention was also drawn to a recent Full Bench decision of the Bombay High Court in , in which it was held that an order of a single Judge on the Original Side setting aside an ex parte decree does not amount to a judgment under Cl. 15 and therefore not appealable. Chainani C. J. who deliverd the judgment has referred to the decisions of the Calcutta High Court referred to by me. According to Chainani C. J. the order setting aside the ex parte decree does not decide any of the merits in controversy in the suit and all the mattes are left open for adjudication and that the order does not amount to a judgment as the right of the plaintiff to have his claim determined by the Court as well as the defendant's liability in respect of the suit claim, remained unaffected both being kept alive for adjudication in the suit.

With great respect to the learned Chief Justice, this is an incomplete statement of the law. On his own reasoning, that as a result of the order setting aside the ex parte decree the plaintiff has been deprived of a valuable right, which had accrued to him under the decree, and that it also has relieved the defendant of his liability under the decree, it should have been held in that case that there has been a clear undoubted determination of a right and a corresponding liability which would amount to a judgment under Clause 15. It is difficult to accept the reasoning that even though as a result of the order the party has been deprived of a very valuable right such an order does not amount to a judgment. It is unnecessary to burden this judgment with a citation of other decisions which had to deal with analogous situations. It is needless to observe that I am not expressing any opinion of my own.

(126) It is necessary to refer to two important Bench decisions of this Court. In Kyroom Bee v. Administrator General of Madras, 2 Mad LW 948 = (AIR 1916 Mad 869), a Bench of this Court held, applying the tests in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB), that an order passed by a single Judge of the High Court the Original Side setting aside an abatement of a suit is a judgment within the meaning of Clause 15 and is therefore appealable. in this case the Bench lays down particular emphasis that according to Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB), the order need not necessarily be in the suit, but may be an order in an independent proceeding which is auxiliary to the suit. The effect of the order was to allow the suit to proceed further, yet, the order was held to be a judgment.

(127) In ILR 56 Mad 689 = (AIR 1933 Mad 417), a Bench of this Court referred to this decision in 2 Mad LW 948 = (AIR 1916 Mad 869), with approval, though distinguished on the facts of that case. In ILR 56 Mad 689 = (AIR 1933 Mad 417), it was held that an order directing the respondent in an appeal to be brought on record as the legal representative of the deceased original appellant is not an appealable order, in the view that such an order does not finally settle the rights of parties but has the effect of allowing the litigation to further proceed to a final adjudication. Beasley C. J. distinguishing 2 Mad LW 948 = (AIR 1916 Mad 869), put the matter thus at p. 691 (of ILR Mad) = (at p. 417 of AIR):

"Those cases dealt with the position of suits which had already abated and the question was whether an order setting aside the abatement was an order which was appealable or not. The reason for deciding that the order was appealable was because by reason of the abatement of the appeal the respondent has acquired a valuable right and that the order setting aside the abatement had the effect of depriving the respondent of that valuable right. Hence it was held that there should be an appeal from such an order".

From the passage extracted it will be seen that the Bench is of the view that an order setting aside an abatement would be a judgment as it involves the determination of a right, in which it is implicit, a deprivation of a corresponding right of the opposite party. I have referred to these Bench decisions of the Madras High Court only to point out that no uniform test can be laid down for determining as to what order would amount to a judgment under Clause 15 as distinguished from other orders. It will be a difficult task to exhaustively enumerate which orders will fall on which line of the tests laid down in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB). Every interlocutory order may in a loose sense affect some right of the party, though incidental or unsubstantial. To hold that every order would be an appealable one would lead to an absurd position. At the same time, orders would be passed in the course of the suit on matters which are of vital importance to the parties concerned. In each case, the substance of the matter and the importance of the order passed in relation to the rights of the parties must be taken into consideration.

(128) I am not referring to cases which have arisen in appeals under Section 104 read with Order XLIII, C.P.C., as they are governed by express statutory provisions and they do not afford any satisfactory guidance or analogy to cases arising under Clause 15.

(129) Appeal allowed.