Anantanarayanan, C.J.:-

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. Rarichan1, 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. V. M Purushothama Sah2, Spencer, O.C.J., and Srinivasa Ayyangar, J., held that an order of a single Judge of the High Court granting permission to the plaintiff to sue in forma pauperis amounts to a ‘judgment’ within the meaning of clause 15 of the Letters Patent. In M/s. Cork Industries v. A. Govindarajulu Mudaliar3 , Ramachandra Iyer, C.J., and Ramakrishnan, J., referred to this conflict, and after a reference to Asrumati Debi v. Kumar Rupendra Deb Raikot4, 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.

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 the 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 Letter 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.

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. 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 m

Click Here to Read the rest of this document