( 1 ) THE applicant filed an application for permission to sue in forma pauperis. The suit was for declaration that he was the sole owner of two fields and bungalow and for possession of the bungalow and for the recovery of rent. He was held not to be a pauper and his application to sue in forma pauperis was rejected by the 2nd Joint Civil Judge Junior Division Ahmedabad and hence this revision application.

( 2 ) THE learned Judge held that the two suit fields were in the possession of the applicant. While considering the means of the applicant he considered these two fields and held that it was not proved that the applicant is a pauper or that he has no sufficient means to pay the court-fees for the suit. Secondly he also held that in the previous litigation between the same parties namely Civil Suit No. 1328/58 of the Court of the 6th Joint Civil Judge Junior Division Ahmedabad it was decided that the wife of the applicant was the sole owner and that she recovered the possession of the two fields irons the applicant in respect of the suit property and that therefore the applicant had no prima facie case or a cause of action. On these two grounds the learned Judge dismissed the application for permission to sue in forma pauperis.

( 3 ) IN revision it is contended that the two fields in question being a part of the subject matter of the suit should have been excluded when determining the question whether the applicant was a pauper in view of the addition made by the Bombay High Court to the Explanation to Rule 1 of Order XXXIII C. P. Code. Order XXXIII Rule 1 and the Explanation to it read as follows :-SUBJECT to the following provisions any suit may be instituted by a pauper. Explanation.-A person is a pauper when he is not possessed of sufficient means to enable him to pay the fees 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.

( 4 ) ON 9th February 1925 the Bombay High Court added the following to the Explanation :-IN determining whether he is possessed of sufficient means the subject matter of the suit shall be excluded.

( 5 ) IT is therefore contended that in view of this addition to the explanation made by the Bombay High Court the lower Court was wrong in considering the two fields on the question whether the applicant was possessed of sufficient means. It is contended by the learned counsel for the opponent that this amendment is outside the competence of the Bombay High Court because the amendment does not relate to a matter of procedure but relates to rule of evidence or to substantive law. Under section 122 Civil Pro. Code High Courts not being the Court of a Judicial Commissioner may from time to time after previous publication make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence and may by such rules annul alter or add to all or any of the rules annul alter or add to all or any of the rules in the first Schedule.

( 6 ) IT is also contended by the learned counsel for the opponent that rules of procedure are matters which are referred to in section 128 (2) of the Civil Procedure Code such as service of summonses etc. Prima facie the addition to the explanation which provides that in determining whether an applicant is possessed of sufficient means the subject matter of the suit shall be excluded has a bearing on the question how a Judge should decide a particular matter and prima facie it does not relate to a matter of procedure. As worded the addition to the explanation therefore is prima facie not a matter of procedure.

( 7 ) IT is also contended that there is a conflict between the explanation found in the Schedule and the addition to the explanation as made by the Bombay High Court. Under the original explanation the subject matter of a suit can be considered on the ques