JIVANLAL NARSI Vs. PIROJSHAW RVAKHARIA AND CO

JUDGEMENT

(1.) (After stating the facts, his Lordship proceeded): The Advocate-General took the point that no appeal lay against a refusal to stay a suit. He submitted that an order refusing to stay was not a judgment "within the meaning of Clause 15, Letters Patent. He referred to a decision of this High Court, Ibrahimbhai V/s. Yoosuf A.I.R. 1932 Bom. 134. In that case an order had been passed by a Judge on the Original Side of the High Court fixing a date for the sale of partnership property. It was held that neither that order nor a subsequent order varying the date of the sale was a "judgment" within the meaning of Clause 15, and no appeal lay. In the course of his judgment the learned Chief Justice said this (p. 14): A preliminary point has boon taken by the respondents on this appeal that no appeal from the order lies Under Clause 15, Letters Patent. That question involves consideration of the meaning of the word "judgment" in Clause 15, Letters Patent a question which has frequently come before the Courts in the past. The case which is always referred to on this point in this Court is the case of Miya, Mahomed v Zorabi (1909) 2 I.C. 157, where it was laid down, adopting the views which had been accepted by the Calcutta High Court, that "judgment" in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability, but that if the order or judgment in question merely regulates procedure of the suit then it is not a judgment within Clause 15.

(2.) The Advocate-General contended that an order refusing to stay a suit is an order, which merely regulates procedure, and that no right of a party is thereby affected. On the other hand, Mr. M.Y. Desai, who appeared for the appellant, has referred to a decision of the High Court of Bengal in Hadjee Ismail Hadjee Hubbeb V/s. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng L.B. 91. There an order had been made granting leave to the plaintiff to institute a suit Under Clause 12, Letters Patent. At p. 101 Couch, C.J., said as follows: It was held by the High Court at Madras in De Snuza V/s. Coles (1868) 3 M.H. Cr.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 appeal able order. 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.

(3.) And it was held that an order granting leave to institute a suit Under Clause 12 was an appealable order. Mr. Desai also referred to the case of Joylall & Co. V/s. Gopiram Bhotica A.I.R. 1920 Cal 685. In that case it was held that the decision of the Court that the applicant was not in the circumstances of the case competent to avail himself of the benefit of the stay section of the Arbitration Act by reason of steps taken by him in the proceedings in the suit determined that the controversy between the parties must be decided by that Court and not by arbitration and was a judgment within the meaning of the Letters Patent and as such was appealable Under Clause 15. Mookerjee, J. in the course of his judgment referred to a decision in Hadjee Ismail Hadjee Hubbebb V/s. Hadjce Mahomed Hadjee Joosub (1874) 13 Beng L.B. 91 and expressed the opinion that the principle of that case applied to the question then before the Court. He observed that Greaves, J., had held by his order that the applicant was not, in the circumstances of that case, competent to avail himself of the benefit of that section by reason of steps taken by him in the proceedings in the suit, and went on to point out that that decision virtually determined that the controversy between the parties must be decided by that Court and not by arbitration, and he took the view that such a decision was a"judgment" within the meaning of the Letters Patent. Belying on those decisions, Mr. Desai has argued that by Wadia, J s. decision the appellant has been deprived of his right to have the suit in this Court stayed in order that the matter in issue may be litigated in the Bellary Court. He has argued that the refusal to stay has conferred jurisdiction upon this High Court to try this case, and that that has involved an obligation upon the defendant unless he is willing to allow the case to go by default to come to this High Court, submit to its jurisdiction, and contest the case. In my opinion, where the question is whether a Court has jurisdiction or has no jurisdiction to entertain a suit, that must involve the determination of a right of a party, who might be adversely affected, if the Court determined that it has jurisdiction. Accordingly, in my opinion, the preliminary point taken by the Advocate-General fails. Beaumont, C.J.