1. This is an appeal against the order of Srinivasa Aiyangar, J., refusing to revoke an order giving leave to sue on the Original Side of this Court. The plaintiff is suing to recover from the defendant possession of certain zamindari property. All the property except a bungalow called 'Dunmore House' is outside the jurisdiction of this Court. He filed his suit on the Original Side on what is stated to be the last day before it would be barred here by limitation. Leave to sue was asked for ex parte without notice to the defendant, and, in view of the urgency of the matter, was granted by the learned Judge. Later on the defendant put in an application to revoke the leave, principally on the ground that the inclusion of 'Dunmore House' was specious and mala fide, being a mere device to give the High Court a fictitious jurisdiction in order to get round the bar of limitation, since the suit was already barred by time in the mufassal and could not have been entertained unless this Court was persuaded to entertain it. The learned Judge has refused to revoke his order and the defendant comes up here on appeal.
2. The learned Judge in his order says, '1 cannot possibly hold the inclusion of the claim in respect of 'Dunmore House' as bona fide' and has 'practically no doubt' that 'Dunmore House' 'has been included in the plaint merely for the purpose of making it appear that some portion of the land claimed was situate within the jurisdiction of this Court,' and he holds that the. present case is 'undoubtedly a fit and proper case in which, ordinarily speaking, leave to institute the suit should hot have been granted and therefore a proper case in which the leave granted ex parte should be revoked'. But because of some special circumstances he refused to revoke his order, these circumstances being chiefly (a) concern for the plaintiff because he had paid a large Court-fee which he will lose as it has not been the practice of this Court to return a plaint, (6) concern for the defendant because he may, if the leave is revoked, be driven to face another suit in another Court, and (c) the desirability that the suit should not be disposed of by mufassal Subordinate Judge. it will be observed that these special circumstances have nothing to do with the question of jurisdiction or limitation. The first is an appeal ad miseri cordiam. The second is not put forward by the defendant himself and the third pre-supposes that the suit is maintainable, that is, is not barred by limitation in the mufassal Court, while the ex parte order was obtained on the footing that the suit would be barred by time in the mufassal Court.
3. However the main point argued before us is whether an appeal lies at all against such an order. An order refusing to revoke a grant ex parte of leave to sue is in essence an order granting after contest leave to sue. Now, if the plaintiff's suit was really on the date of presentation here barred by time in the mufassal, and if the ex parte leave to sue ought not, as the learned Judge holds, to have been given in the first instance, but if nevertheless the learned Judge has decided finally, even if he has decided wrongly, that he has jurisdiction to entertain the suit, then, plaintiff's suit being on a proper application of the law still-born the grant of leave to sue is giving life to a dead suit and inflicting on defendant an injury prima facie irreparable, unless an appeal lies.
4. As to whether an appeal does lie, the only direct authorities on this question are in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub and Rohima Bye v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng. LR 91 where the Calcutta High Court held that an appeal lies from an order granting leave to the plaintiff to sue and in Vaghoji v. Camaji ILR (1904) B 249 where it was held that an appeal lay against an order on the Original Side dismissing an application to rescind a leave to sue granted. In the latter case it was held that the order then under appeal being on the question of whether the suit was one for land so as to come under Clause 12 of the Letters Patent, was decisive.
5. Without laying down any general proposition that a leave to sue is always a judgment under Clause 15 of the Letters Patent and therefore subject to appeal, we think that in any particular case the proper test as to whether the order is or is not a judgment has been laid down by the late Chief Justice Sir Arnold White in Tuljaram Row v. Alagappa Chettiar ILR (1910) M 1 : 21 MLJ 1,a. ruling which has been consistently adopted in this Court as laying down the guiding principle. There at p. 7 he says, 'The test seems to me to be not what is the form of the adjudication but what is its effect in a suit or proceeding in which it is made. If its effect whatever its form may be and whatever may be the nature of the application on which it is made is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect if it is not complied with is to put an end to the suit or proceeding I think the adjudication is a judgment within the meaning of the clause'. In that view it appears to us that it cannot be maintained with reason that the grant of leave to sue is not a judgment within the meaning of Clause 15 of the Letters Patent, if the order has finally shut out the defendant from now pleading or being heard on the question that the suit should have been so dismissed on the point of jurisdiction. If this refusal to dismiss the suit is in effect a final judgment against a dismissal of the suit on the ground of jurisdiction, a judgment which cannot be attacked in appeal because the matter of jurisdiction will not ex hypothesi be made a matter of issue in the suit, then it will in our view be a judgment within the scope of the test set out in Tuljaram Row v. Alagappa Chettiar (1910) ILR 35 M 1 : 1910 21 MLJ 1. But if the question of the jurisdiction of this Court to entertain the suit is still open for decision at the trial of the suit, then in our view the order passed is not of a final nature and would not be a judgment. Mr. Grant for the plaintiff stated before us that the plaintiff's position was that the question of jurisdiction is still open for decision on an appropriate issue in the suit. The defendant's learned vakil was doubtful if that was so and whether the order granting leave to sue did not finally dispose of the question of Jurisdiction. That we think is not necessarily so. A Court has always jurisdiction to try on an appropriate issue in a suit whether it has jurisdiction or not to try the suit; that is, to set in motion the process by which the various points at issue between the parties including that of jurisdiction fall to be decided.
6. In the present case the leave of the Court has been obtained under Clause 12 of the Letters Patent on the footing that part of the property sued for is situated within the local limits of the original jurisdiction of this Court. But, if subsequently on a full trial on the point it appears that the inclusion of Dunmore House was not due to a bona fide claim to that house but was merely a device by which the law of limitation might be evaded, the Court has power still to give the proper relief. It appears to us therefore that the order under appeal is not a judgment within Clause 15 and an appeal does not therefore lie. It would be well if in the trial of the suit this question of jurisdiction be tried and decided as a preliminary issue. We therefore dismiss the appeal but make no order as to costs.