Lawrence Jenkins, C.J.
1. This is substantially a suit brought against the Secretary of State for India in Council on the ground of an alleged defamation by the Government of Bombay.
2. The defendant has put in a written statement wherein he maintains that no such suit will lie, and on the 25th of February 1901, he took out a Judge's summons calling on the plaintiff to show cause why this suit should not be set down on the daily board for hearing on some early date to be fixed by the Court for the argument and disposal on preliminary issues of the matter raised in the 1st, 2nd, 3rd and 5th paragraphs of the defendant's written statement.
3. Those paragraphs are in these terms:
1. The defendant says that the Resolution No. 7846 of the 6th November 1899 set out in the plaint was an act and order of the Government of Bombay and Council, counselled, ordered and done by the said Governor and Council in their public capacity only and acting as Governor and Council and that by virtue of the provisions of the statute 4 Geo. IV. c. 71 the said Governor and Council are not subject to the jurisdiction of this Honourable Court by reason of such act and order.
2. The defendant also says that apart from the provisions of the said statute, no suit is maintainable against him in respect of the said Resolution, inasmuch as the same was issued and published by the Governor of Bombay and Council acting in their public capacity as the executive Government on behalf of Her late Majesty the Queen-Empress.
3. The defendant submits that the allegations in the plaint contained and. particularly those in the 7th paragraph thereof disclose no cause of action against him or the Government of Bombay.
4. The defendant says that the notice of action referred to in the 8th paragraph of the plaint is confined to a charge of alleged libel, contained in four sentences selected from the said Resolution, and contains no intimation of the plaintiff's intention to claim Rs. 1,50,000 or any other sum as damages. The defendant says that having regard to the terms of the said notice the plaintiff is not entitled to make any charges in this suit in respect of any alleged malice or in respect of any allegations exceeding the limit of just comment or in respect of any reckless indifference to the truth or falsity of the facts published on the part of the Government of Bombay and is not entitled to claim in this suit any sum of money by way of damages.
5. The summons was heard in Chambers by Russell, J., who discharged it with costs.
6. From this order the present appeal is preferred.
7. No appeal lies under the Code of Civil Procedure, but it is contended that the course adopted by appellant is sanctioned by Clause 15 of the Letters Patent.
8. I do not propose to discuss whether Section 588 of the Civil Procedure Code has taken away the right of appeal given by the Letters Patent : we are bound by authorities which decide this point in the negative. We, therefore, have to see whether this is such an appeal as the Letters Patent will permit.
9. Clause 15 provides:
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 sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court, pursuant to Section 13 of the said recited Act; and that an appeal shall also lie to the said High Court from the Judgment, not being a sentence or order as aforesaid, of two or more Judges of the said High Court, or of such Division Court, wherever such Judges are equally divided in opinion, and do not amount in number to a majority of the whole of the Judges of the said High Court at the time being; but that the right of appeal from other Judgments of Judges of the said High Court, or of such Division Court, shall be to us, Our heirs or successors, in Our or their Privy Council, as hereinafter provided.
10. There has been a series of decisions as to what is a judgment within the meaning of this section. That most favourable to the defendant is De Sobza v. Coles 3 M.H.C. 384.
11. The Court there lay down that the word judgment 'cannot be limited to the final judgment in a suit-nor indeed to a judgment in a suit at all-but must be held to have the more general meaning of any decision or determination affecting the rights of any suitor or applicant...when the language giving the appeal is so general in its terms as that contained in the 15th clause of the Charter, it is, we think, impossible to prescribe any limits to the right of appeal founded upon the nature of the order or decree appealed from. But assuming that the appellant has a right to be heard in every case it is obvious that the duty of the appellate Court in disposing of the appeal may vary considerably according to the nature of the order or decree complained of. And we think it may be stated as a general rule that when the determination complained of is. merely the result of exercise of discretion on the part of the Judge, in a matter which was a proper subject for the exercise of that discretion the appellate Court would rightly decline to interfere.'
12. This view has not been generally accepted and there seems to be a consensus of opinion that the limits of the right to appeal are more correctly enunciated by Sir Richard Couch in The Justices of Peace for Calcutta v. The Oriental Gas Company's case 8 B.L.R. 433 : 17 W.R. 364. After a criticism on the ratio decidendi in DeSouza v. Coles 3 M.H.C. 384 the learned Chief ' Justice in that case says : 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.' But then it has been said that in the subsequent case of Hadjee Ismael Hadjee Hubeeb v. Hadjee Mahomed Hadjee Joosub 13 B.L.R. 91 : 21 W.R. 303 Sir Richard Couch receded from the definition. I fail to see this; he repeated his dissent from the reason on which De Souza's case (1) was determined and expressly adhered to his former definition. The first Court there had under Clause 12 of the Letters Patent, given leave to sue in the Calcutta High Court: and it thereby vested in the plaintiff a right which he would not otherwise have possessed. 'It is not a mere formal order,' said the Chief Justice, or an order 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.'
13. This seems to me a distinct reference to the principle laid down in the Oriental Gas Company's case. (2), and an affirmance of it.
14. By that principle, therefore, I think we should decide whether an appeal lies from the order of Russell, J.
15. It has been argued that the Secretary of State has been thereby deprived of his right to object that the plaint discloses no cause of action : but in my opinion this is not so. The learned Judge merely decided that he would not dispose of the suggested issues before the first hearing, but he did not determine, and indeed could hardly have intended to determine how or in what order at the first hearing-the only hearing in this Court (see Rule)-these issues should be determined. He decided no right between the parties, no has his decision precluded the Secretary of State from raising at the hearing and asking for a decision on those issues to which the summons relates. The learned Judge has merely regulated the procedure in the suit, in so far as by his order he has declined to interfere with the ordinary course of the suit. It is said then that the order has increased the Secretary of State's difficulties in relation to discovery, but the law provides ample machinery for his protection where it is needed and justified and I decline to consider the suggestion that this protection may be improperly withheld if a case for its application is made out. The result is that in my opinion no appeal lies from the order of Russell, J., and it would be wholly beside the question for us to consider whether that order was proper. The appeal, therefore, must be dismissed with costs. There will be 110 order on the appellant's motion except that the costs of the motion will be costs in the suit.
16. I concur.