RASULMIYA MOHMED UMAR Vs. VORA SAKURBHAI MOHMED

JUDGEMENT

(1.) The petitioners in this revision application preferred an application under Order 33 Rule 1 of the Civil Procedure Code seeking permission of the Court to file the suit in forma pauperis. The two petitioners claimed that they had one-third share in the suit properties and asked for reliefs for the partition of the properties and for possession of their one-third share therefrom. Petitioner No. 1 is the son of petitioner No. 2 and both of them claimed that they were incapable of paying the requisite Court fee in the suit for partition and possession of their share in the properties mentioned in the application. They filed a list of their movable properties which they valued at Rs. 375.00 and in that application they valued the suit properties at Rs. 33000.00 but claimed that they were not possessed of sufficient means to pay the requisite Court fee in suit. Petitioner No. 1 was in service and was drawing Rs. 125.00 as salary per mensum but claimed that he had no sufficient means to pay the Court-fees on the plaint. The learned Civil Judge Senior Division Mehsana who heard the application held that the proper- ties in respect of which the suit for partition was brought must be considered while deciding an application under Order 13 Rule 1 Civil Procedure Code. Considering the share of the petitioners in that property the learned Civil Judge came to the conclusion that the value of the share of the petitioners in those properties was about Rs. 11000.00 and that therefore it could not be said that the petitioners were not possessed of sufficient means to raise an amount of Rs. 110740 which were required to pay the requisite Court-fees. This finding of the learned Civil Judge was based on a decision of this Court reported in Parshotam Parbhudas v. Bai Moti w/o Parshotam Parbhudas IV G. L. R. 204 in which it was held that the addition to the Explanation to Rule 1 of Order XXXIII Civil Procedure Code that in determining whether he is possessed of sufficient means the subject matter of the suit shall be excluded was outside the scope of sec. 122 of the Civil Procedure Code. The main question there- fore that arises in this revision application is whether the sentence In determining whether he is possessed of sufficient means the subject- matter of the suit shall be excluded added to the Explanation to Rule 1 of Order XXXIII is ultra vires and outside the scope of sec. 122 of the Civil Procedure Code as has been held in IV G.L.R. 204. That decision of this Court seems to proceed on two grounds:

(2.) In the case of Parshotam Parbhudas v. Bai Moti w/o Parshotam Parbhudas IV G.L.R. 204 it has been observed at page 206 that It is also contended by the learned counsel for the opponent that rules of procedure are matters which are referred. to in sec. 128(2) of the Civil Procedure Code such 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 baring on the question how a Judge should decide a particular matter and prima facie it does not relate to a matter or procedure. As worded the addition to the explanation therefore is prime facie not a matter of procedure. Sec. 121 of the Civil Procedure Code provides that the rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions contained in Part X of the Code. This section refers to the words body of this Code and as is apparent from the arrangement of the enactment it is divided into two parts viz. body of the Code and the rules. The re-arrangement of the Code into the body of the Code and Rules appears to be for the purpose of giving elasticity to judicial procedure and to enable minor defects to be remedied from time to time without the necessity of having a frequent resort to the legislature. The rules that were incorporated in the First Schedule were therefore made liable to be amended annulled or added to by the High Courts and were given the same effect as if they were enacted in the body of the Code. Under the former Code the High Courts had certain rule-making powers in regard to procedure but in order to facilitate annulment amendment or addition to rules which was found necessary to suit peculiar local conditions a re-arrangement of the Code was made by dividing it into two parts viz. the body of the Code and the rules. The rules were included in the First Schedule and by sec. 122 a provision was made that the High Courts may from time to time 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 in the First Schedule. These rules of course were subject to the provisions contained in secs. 124 126 127 and 128. But subject thereto the High Court has been given the powers to make rules annulling altering or adding to all or any of the rules in the First Schedule. As is apparent from the preamble of the Code of Civil Procedure which reads as under Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature it is hereby enacted as follows the Code is essentially a law relating to the procedure of Civil Courts. Sec. 122 of the Civil Procedure Code provides that the High Courts may from time to time 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 in the First Schedule. Sec. 128 provides that such rules shall be not inconsistent with the provisions in the body of the Code but subject thereto may provide for any matters relating to the procedure of Civil Courts. Sec. 127 provides that the rules so made and approved shall from the date of publication or from such other date as may be specified have the same force she effect as if they had been contained in the First Schedule. The scope of sec. 122 of the Civil Procedure Code is wide enough to imply that every rule in the First Schedule can be annulled altered or added to by the High Court the same being a rule relating to procedure. As stated above the Civil Procedure Code itself as its preamble shows relates to the procedure of Civil Courts and more particularly the rules contained in the First Schedule. The wording of sec. 122 also suggests that the Rules in the First Schedule relate to procedure because otherwise the last portion of sec. 122 of the Code of Civil Procedure viz. may by such rules annul alter or add to all or any of the rules in the First Schedule would not have found place in sec. 122. Having regard to the clear wordings of sec. 122 there can hardly be any doubt about the power of the High Court to annul alter or add to all or any of the rules contai- ned in the First Schedule. Moreover Order XXXIII of the Civil Procedure Code relates to institution of a suit in forma pauperis. The principle subject matter of Order XXXIII relates to the institution of suits by paupers the manner in which applications should be made to sue in forma pauperis and other incidental matters relating to the institu- tion of such suits and the trial and disposal of such applications. By the explanation provided under Rule 1 it is shown therein as to who is to be considered a pauper. The subject matter of the sentence added by the present amendment clearly relates to and is incidental to the original unamended explanation and by the mere fact of an addition to the explanation the explanation would not lose its character of being of a procedural nature. The very object of dividing the Code into two parts and of enabling the High Court to make rules to annul alter or add to the rules contained in the First Schedule was to provide for making such incidental amendments as would be found necessary having regard to the local requirements in a State. It could not therefore be said that the addition that has been made and that has been challenged in this matter was such as could not fall within the ambit of sec. 122 of the Code of Civil Procedure. For the reasons aforesaid we are unable to agree with the view taken in IV G. L. R. 204 that the addition to the explanation to Rule 1 of Order XXXIII of the Civil Procedure Code was outside the scope of sec. 122 of the Civil Procedure Code because it did not relate to a matter of procedure.

(3.) It was observed at page 206 in the case of Parshotam Parbhudas v. Bai Moti that in order to satisfy the requirements of sec. 122 the High Court must make rules regulating either its own procedure or the procedure of the Civil Courts subject to its superintendence and that a simple power of alteration or addition of the rules of the first Schedule was not con- templated by sec. 122 but that such an annulment alteration or addition would be valid if it was a part of the rules framed by the High Court. It was observed that sec. 122 made it clear that the power to annul alter or add to all or any of the rules in the First Schedule could be exercised by the High Court only when it proceeded to make rules regulating its own procedure or the procedure of the Civil Courts and that the power of amendment or alteration as such was not given as contemplated by sec. 122 of the Civil Procedure Code. On this view of the matter it was held in that case that as the addition to the explanation was made by the High Court without setting out to make rules regulating the procedure of the Civil Courts subject to its superintendence the addition was there- for outside the scope of sec. 122 Civil Procedure Code. There is no mode or form prescribed in the Code in which the High Courts may make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence or may make such rules annulling altering or adding to all or any of the rules contained in the First Schedule. The Code also does not require that when one single rule of any order contained in the First Schedule is to be annulled amended or added to it must be made by making it as a part of and as one of the rules framed by the High Court and that if it was not so made it could not be considered as an effective rule within the meaning of sec. 122. The rule that has been made is that the following-sentence shall be added to the explanation viz. In determining whether he is possessed of sufficient means the subject matter of the suit shall be excluded and there is nothing in sec. 122 or any other section of the Civil Procedure Code which would entitle us to hold that such a provision could not be consi- dered as a part of the rule within the meaning of sec. 127. of the Code of Civil Procedure.