R. M. LODHA, J.

( 1 ) BY the order dated 13th April, 2005, the learned Chamber judge granted the chamber summons taken out by Sayed Mustafa Hussaini for his impleadment in the suit for the declaration and other incidental reliefs. Aggrieved thereby, the plaintiff has come up in appeal under clause 15 of the Letters Patent.

( 2 ) THE respondent No. 2- newly added defendant has raised the objection about the maintainability of the appeal.

( 3 ) THE question that falls for our determination is: is the appeal maintainable under Clause 15 of the Letters Patent.

( 4 ) CLAUSE 15 of the Letters Patent reads thus-"15. Appeal to the High Court from Judges of the court:- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisionis of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of, the said High Court or one Judge of any Divisional Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgement of one Judge of the said High Court from a judge of any Division Court, pursuant to section 108 of the government of India Act, made on or after the first day of february one thousand nine hundred and twenty-nne in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High court, where the Judge who passed the judgement declares that the case is fit one for appeal; but that the right of appeal from other judgements of Judge of the High court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided. "

( 5 ) THE concept and purport of the word "judgment" used in clause 15 of the Letters Patent and also its scope and meaning has come up for consideration before the courts from time to time. We need not go into all these judgments as the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786, thoroughly scanned and analysed large number of precedents starting from Sonbai v. Ahmedbhai Habibhai, (1872) 9 Bom HCR 298, the Full Bench decision of this court upto the case of Shanti Kumar R. Canji v. Home Insurance Co. of new York, AIR 1974 SC 1719 and laid down the tests to determine as to when an order passed by the trial Judge of the High Court can be said to be a judgment within the meaning of clause 15 of the Letters Patent. In the exercise, the Supreme Court, besides its previous judgments, considered judgments of this court, Calcutta High Court, Madras High Court, allahabad High Court, Lahore High Court, Rangoon High Court, Nagpur high Court, Andhra Pradesh High Court, Jammu and Kashmir High Court and the Privy Council.

( 6 ) THE Supreme Court in Shah Babulal Khimji noticed that the interpretation of the word "judgment" appearing in the Letters Patent has not been consistent or unanimous and there was serious divergence of judicial opinions and a constant conflict between the High Courts for more than a century. What amazes us is that even after the decision in Shah babulal Khimji, the question continues to be raised about the maintainability of appeals from various orders passed by the trial Judge of the High Court. In the present case, the maintainability of the appeal is questioned in the appeal from an order relating to addition of party under order 1 Rule 10 CPC.

( 7 ) THE tests laid down in the leading case from Madras High Court in t. N. Tulijaram Row v. M. K. R. V. Alaga