The High Court has the power under Section 122 of the Civil Procedure Code to make rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence, and to annul, alter or add to all or any of the rules in the First Schedule, but this power extends to matters of procedure only and does not include the power to create or take away substantive rights.

Headnote:
CIVIL PROCEDURE CODE - ORDER 33, RULE 1 - EXPLANATION - AMENDMENT BY HIGH COURT - POWER UNDER SECTION 122 - SCOPE - SUBJECT-MATTER OF SUIT - EXCLUSION IN DETERMINING PAUPERISM - VALIDITY.
Fact of the Case:

The applicant, Menkabai, filed a suit for partition against her step sons and their alienees. The suit was dismissed. She was permitted to sue as a pauper. The property in suit was valued at Rs. 19,767/-. The defendants contended that there was a prior partition by which the plaintiff got certain property and she was not entitled to claim a partition afresh. The defence prevailed and the suit was dismissed. The applicant filed an application for permission to file an appeal in forma pauperis.
Finding of the Court:

The High Court held that the amendment made by it to the explanation to Rule 1 of Order 33 of the Civil Procedure Code, excluding the subject-matter of the suit in determining pauperism, was within the scope of Section 122 of the Code and was not ultra vires. The Court further held that the explanation to Rule 1 of Order 33, as amended, was a matter relating to the procedure of the Court and not a substantive right.
Issues: 1. Whether the High Court had the power under Section 122 of the Civil Procedure Code to amend the explanation to Rule 1 of Order 33 of the Code, excluding the subject-matter of the suit in determining pauperism. 2. Whether the amendment made by the High Court was ultra vires.
Ratio Decidendi: 1. The power of the High Court under Section 122 of the Civil Procedure Code to make rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence, and to annul, alter or add to all or any of the rules in the First Schedule, extends to matters of procedure only and does not include the power to create or take away substantive rights. 2. The explanation to Rule 1 of Order 33 of the Civil Procedure Code, as amended by the High Court, excluding the subject-matter of the suit in determining pauperism, is a matter relating to the procedure of the Court and not a substantive right. Therefore, the amendment made by the High Court was within the scope of Section 122 of the Code and was not ultra vires.
Final Decision: The application for permission to file an appeal in forma pauperis was allowed.

JUDGMENT - Padhye, J.

1. The present applicant Menkabai had filed a suit for partition against her step sons and their alienees. That suit was dismissed. In the suit she was permitted to sue as a pauper. The property in suit was valued for purposes of jurisdiction at Rs. 19,767/-. The suit was contested by the defendants contending that there was already a prior partition by which the plaintiff got certain property and she was not entitled to claim a partition afresh. The defence prevailed and the suit was dismissed. Against the dismissal of her suit, the present applicant has filed the application for permission to file the appeal in forma pauperis. Rule on this application was issued.

2. Under the proviso to Rule 2 of Order 44, Civil Procedure Code, if the applicant was allowed to sue as a pauper in the Court from whose decree the appeal is preferred, no further enquiry in respect of his pauperism shall be necessary, unless the appellate Court sees cause to direct such enquiry. The property which is alleged to have been given in the prior partition to the applicant was also a subject-matter of the suit, where the plaintiff-applicant was contending that she had a certain share in all the property belonging to the joint family including that property. Besides this property in suit, the applicant had no other means to pay the court-fees and if the property involved in the suit is not to be taken into consideration, the applicant will be entitled ordinarily under the proviso to Rule 2 of Order 44 of the Code of Civil Procedure to prefer this appeal in forma pauperis. The learned counsel for the respondent No. 1 has, however, raised a contention that the subject-matter of the suit has also to be taken into consideration for the purposes of determining whether the applicant is a pauper or not if such subject-matter is capable of raising funds for payment of the requisite court-fees.

3. The rules regarding the presentation of appeals in forma pauperis are the same as in Order 33 of the Code of Civil Procedure in so far as those provisions are applicable. Order 33 of the Code of Civil Procedure, permits a suit to be instituted by a pauper subject to the provisions contained therein. Those would also be applicable to the filing of the appeals by paupers. In Rule 1 of Order 33, an explanation has been given to describe as to who is a pauper. The explanation reads:-

"Explanation-- A person is a "pauper" when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit."

This explanation is to be found in the original Code as is passed by the Legislature. This High Court, however, in exercise of its powers under Section 122 of the Code of Civil Procedure, added the following words to the said explanation on 9-2-1925. These words are:--

"In determining whether he is possessed of sufficient means the subject-matter of the suit shall be excluded."

There is also another change in the said explanation, namely, the words "one hundred rupees" have been substituted by the words "five hundred rupees", but with which we are not at the moment concerned. The further change in this rule has been made on 30th of September 1966 to be effective from 1st November 1966 and the explanation now reads as under:--

"Explanation-- A person shall be deemed to be a pauper if he is not possessed of means exceeding five hundred rupees in value, or where he is possessed of means exceeding five hundred rupees in value, the same are not sufficient to enable him to pay fees prescribed by law for the plaint.

For the purposes of this explanation the means which a person is possessed of shall be deemed not to include his necessary wearing apparel and the subject-matter of the suit."

4. The learned counsel for the respondent No. 1 has challenged the power o

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