J.W.E. Beaumont, C.J.
1. In this case the appellant presented a petition for leave to sue in forma pauperis on April 10, 1930. The learned Prothonotary in dealing with the matter under Rule 5 of Order XXXIII came to the conclusion that the allegations did not show a cause of action, because the claim as set out in the petition was barred by the Indian Limitation Act. The decision of the learned Prothonotary was upheld by the Judge in Chambers and it is against the decision of the Judge in Chambers that the present appeal is brought.
2. The first point taken by the respondent is that no appeal lies against an order of a Judge in Chambers refusing leave to sue in forma pauperis. That question turns on the meaning of the word 'judgment' in Clause 15 of the Letters Patent. The meaning of 'judgment' in that clause has been considered in most of the High Courts in India, and this Court has, in the case of Miya Mahomed v. Zorali (1909) 11 Bom. L.R. 241, followed the decisions of the Calcutta High Court in preference to decisions of the Madras High Court, the decisions of the Calcutta High Court giving to the word 'judgment' a more restricted meaning than the decisions of the Madras High Court. In the leading Calcutta case on the subject, The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 B. L.R. 433, the gist of the decision is contained, I think, in the sentence (p. 452):
3. '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.' And it is that passage which has been approved of by this High Court. Accepting that passage as a correct statement of the law, in my opinion, the present order falls within the definition of ' judgment.' I am not prepared to say, as the High Court of Rangoon has said in the case of Ma Than Myint v. Maung Ba Thein ILR (1925) Ran. 20, that ' judgment ' means a decision on some issue arising in the action; all that a judgment need do is to affect the merits of the question between the parties by determining some right or liability.
4. Here the question between the parties at the present moment is as to whether the appellant is entitled to sue as a pauper. Under Order XXXIII he is given, if he complies with certain conditions, a substantive right to sue as a pauper, and the decision of the learned Chamber Judge in this case has deprived him of that right. I think, therefore, that the learned Judge's decision affects the merits of the question between the parties by determining that the plaintiff has no right to sue the defendant as a pauper. I think, therefore, that the order of the learned Judge is one which can be appealed against. [ His Lordship nest adverted to the merits of the case. ]
5. I agree. In Miya Mahomed v. Zorabi (1900) 11 Bom. L.R. 241, which is strongly relied upon by Mr. B.K. Desai for the respondent, it was decided that an order directing an issue of a commission for the examination of witnesses is not a 'judgment' within the meaning of Clause 15 of the Letters Patent, and no appeal lies against it. Towards the close of the judgment, however, it seems to me clear that in their Lordships' opinion there might be certain interlocutory orders in chambers from which an appeal would lie. Their Lordships say at p. 248 :-
Where the refusal of an application by the plaintiff for a commission to examine witnesses would result in the dismissal of the suit owing to the inability of the plaintiff to adduce any evidence, his right to have his case heard upon evidence would be denied and that would be a decision of a right which would amount to a judgment according to the Bengal ease to which 1 have referred.
I am unable to accede to the argument submitted by Mr. Dasai that the question as to what is a 'judgment' within Clause 15 of the Letters Patent can only have reference to a question arising in the suit after it has been instituted by a plaintiff. Where, as in this case before us, a clear right is afforded to a litigant by the terms of the Civil Procedure Code, in my opinion, the decision of a Court which deprives him of that right must be a 'judgment' within the meaning of Clause 15 of the Letters Patent. The Madras High Court in the case of Baba Sah v. Purushothama Sah : (1924)47MLJ932 , a case which was on all fours with the present, expressed the opinion that the law confers a substantial right in allowing a plaintiff, who has a good case in law, but no means to prosecute it, to sue in forma paupens, and that an adjudication on such a right is a ' judgment', and, therefore, appealable. I agree with that expression of opinion. I also think that this case comes within the decision of the Bengal High Court, The Justices of The Peace for Calcutta v. The Oriental Gas Company (1872) 8 B. L.R. 433, so far as regards the expression of their Lordships' opinion as to what is a 'judgment' within the meaning of Clause 15 of the Letters Patent. [His Lordship then referred to the merits of the case.]