1. [His Lordship after stating the facts of the case, 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 of the Letters Patent. He referred to a decision of this High Court, Ibrahimbhai v. Yoosuf (1831) 34 Bom. L.R. 12. 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 been taken by the respondents on this appeal that no appeal from the order lies under Clause 15 of the Letters Patent. That question involves consideration of the meaning of the word 'judgment' in Clause 15 of the 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) 11 Bom. L.R. 241 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,
3. On the other hand, Mr. M.V. Desai, who appeared for the appellant, has referred to a decision of the High Court of Bengal in Hadjee Ismail Hadjee Hubbebb v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng. L.R. 91. There an order had been made granting leave to the plaintiff to institute a suit under Clause 12 of the Letters Patent. At page 101 Chief Justice Couch said as follows :-
It was held by the High Court at Madras in De Souza v. Coles (1868) 3 M.H.C.R. 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 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 was held that an order granting leave to institute a suit under Clause 12 was an appealable order.
4. Mr. Desai also referred to the case of Joylall & Co. v. Gopiram Bhotica I.L.R. (1920) Cal. 611. 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. Mr. Justice Mookerjee in the course of his judgment referred to the decision in Hadjee Ismail Hadjee Hubbebb v. Hadjee Mahomed Hadjee Joosub and expressed the opinion that the principle of that case applied to the question then before the Court. He observed that Mr. Justice Greaves 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.
5. Relying on those decisions, Mr. Desai has argued that by Mr. Justice Wadia'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 bo adversely affected, if the Court determined that it has jurisdiction. Accordingly, in my opinion, the preliminary point taken by the Advocate-General fails.
6. I agree with the judgment of my learned brother, and with the reasons on which it is based; and I only desire to add a very few words as to the issue under Section 10 of the Civil Procedure Code.
7. It appears to me that a decision of the Judge either to allow or to refuse a stay under that section is a decision, which in fact goes to the jurisdiction of the Court. If the case is brought within Section 10, then the Court has no jurisdiction to proceed with the trial of this suit, so long as the earlier suit is pending; and when the earlier suit is determined the matter in issue in this suit will probably be res judicata. Therefore, the decision of the Judge under Section 10 really determines the right of the plaintiffs to sue in this Court; and it seems to me that such a decision is a 'judgment' within Clause 15, of the Letters Patent and the authorities under that clause, and that such a decision is not a mere order relating to procedure in the suit.
8. [Their Lordships then dealt with the appeal on its merits, and confirmed the decree appealed from.]