S. Ramachandra Iyer, C.J.
(1) This is an appeal from the judgement of Srinivasan, J. who confirmed the order of the Master granting the respondent leave to sue in forma pauperis. A preliminary question as to the maintainability of the appeal under Cl. 15 of the Letters Patent has got to be considered before we can take up the merits of the appeal. In Ananthanarayana v. Rarichan, ILR 59 Mad 656: (AIR 1936 Mad 387) it was held that an order of a single Judge admitting a pauper appeal after excusing the delay in the presentation was not a judgement as that enabled the appeal to go on. In Baba Sah v. Purushotham Sah, 47 Mad LJ 932: (AIR 1925 Mad 167), a Bench of this court held that an appeal would lie against the order of a single Judge on the Original Side granting permission to the plaintiff to sue in forma pauperis. That judgement, in our opinion, is inconsistent with the pronouncement of the Supreme Court in Asrumati Debi v. Rupendradeb Raikot, , where two tests have
been laid by their Lordships of the Supreme Court to find out whether an adjudication in a particular proceedings will amount to a judgement within the meaning of Cl. 15 Letters Patent. They are: (1) whether the order or judgment of the single Judge terminates the suit or proceeding, (2) whether it affects the merits of the controversy between the parties in the suit itself. None of these conditions can be said to be satisfied in a case where leave to sue in forma pauperis is granted. The suit, far from getting terminated, by the order allowing the suit to be registered, really keeps the suit pending. The merits of the controversy between the parties also could not be said to have come for final determination in such proceedings.
(2) The decision in related to an order allowing an application for transfer of a suit instituted in a mofussil Court to the High Court to be tried on its extraordinary original jurisdiction. It was held that such an order would not amount to a judgment as the suit had not been finally disposed of. It will be noticed that the application in that case before the High Court for transfer of the suit was an original application which had been put an end to by the order of transfer. Nevertheless the Supreme Court regarded that circumstance as immaterial as in its view the question whether a particular order of a single Judge amounts to a judgment or not had to be determined on the basis of its effect on the suit itself. This view has been further elaborated by this Court in Central Brokers v. Ramanarayana Poddar and Co., (FB) where a question arose whether an order
passed under S. 10, C. P. C. for stay of an earlier suit will amount to a judgment within the meaning of Clause 15 of the Letters Patent, it was answered in the negative. In 47 Mad LJ 932: (AIR 1925 Mad 167), the learned Judges proceeded to hold that an order of the kind before us, would amount to a judgment because an order refusing leave to sue in forma pauperis would amount to a judgment. With great respect to the learned Judges we would lie to point out that, there is a fundamental difference for the purpose of Cl. 15 Letters Patent, between a case where leave to sue in forma pauperis is refused and one where leave is granted. If leave were refused, the intended suit will not be on the file of the Court at all; in consequence, so far as the Court is concerned, there will be a termination of the proceedings. But where leave to sue is granted the position will be different. While, therefore, we agree with the learned Judges who decided that case that an order refusing to grant leave to sue in forma pauperis would be a judgment, the same cannot follow in regard to an order granting leave.
(3) It has been argued that as the right to file a suit in forma pauperis is a valuable right given to a poor litigant, not to be harassed by paupers will equally be a right and an order granting leave to sue in forma paueris should therefore be regarded as deciding the rights of the parties. But this is only second of the two tests laid down by the Supreme Court. Even so we are unable to appreciate how it can be said that in granting leave to sue in forma pauperis the right of the defendant can be said to be infringed. It may be that frivolous litigations might be encouraged by indiscriminate grant of leave to sue in forma pauperis. There can however be no reasonable apprehension on that score as an order granting leave is a judicial order. The question before us is not so much as to whether the order in a particular case is right or wrong but whether it is a judgment within the meaning of Cl. 15 of the Letters Patent. On that matter, so long as 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 it cannot amount to a judgment. Ware conscious that in taking this view we are holding contrary to the view expressed in 47 Mad LJ 932: (AIR 1925 Mad 167). We would ordinarily have referred the matter for consideration by a Full Bench; but that step is unnecessary in the present case, having regarded to the recent decision of the supreme Court and the Full Bench decision of this Court to which we have made reference. The order passed by the learned Judge will not amount to a judgment and no appeal can lie against it. The appeal fails and is dismissed with costs.
(4) Appeal dismissed.