Desai, J. - (1.) This is an application under Section 115, Civil P.C., for revision of an order passed by the Civil Judge, Agra, permitting the opposite parties plaintiffs to sue as paupers. The suit instituted by the opposite parties against the applicants is one for declaration of title, possession of immoveable property and damages and is valued at Rs. 6,000 on which court-fee of Rs. 835 is payable. The learned Civil Judge after an enquiry found that the opposite parties were not possessed of sufficient means to enable them to pay the court-fee.
(2.) The first contention of Sri Gopal Behari was that the learned Civil Judge was in error in permitting the opposite parties to sue as paupers merely on the finding that they were not possessed of sufficient means and that he should not have permitted them unless he found that they were not entitled to property worth Rs. 100. This contention is based upon the 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 o the suit." (Rule 1, of Order 33). If there is a fee prescribed by law for the plaint the plaintiff is a pauper if he is not possessed of sufficient means to enable him to pay it; whereas if no such fee is prescribed, he is a pauper if he is not entitled to property worth Rs. 100 excluding his necessary wearing apparel and the subject-matter of the suit. It was argued that the fee prescribed by law means fixed fee regardless of valuation and that when ad valorem fee is payable it is a case in which "no such fee is prescribed." In other words, distinction was sought to be made between fixed fee and ad valorem fee and it was argued that the first limb of the explanation applies in the former case and the second limb in the latter case. We are quite unable to agree with the applicants' contention. There is no justification whatsoever for putting such a strained interpretation on the words "prescribed by law." If law lays down the fee payable on a plaint, it is a fee prescribed by law regardless of how it is to be calculated. Ad valorem fee payable on a plaint is as much a fee prescribed as fixed fee; both are prescribed by law, neither less than the other. The main law that prescribes court-fees is the Court Fees Act and any fee made payable under it is undoubtedly a fee prescribed by law. The fees indicated by either of the Schedules annexed to the Act are the fees by which the corresponding documents are chargeable; see Section 6 (1). The explanation added by the State of U.P. to Section 6 (1) uses the word "prescribed" for all fees indicated by either of the Schedules. Schedule I indicates ad valorem fee, and it follows that ad valorem fees also are fees prescribed by law. Fixed fee is fee payable regardless of valuation while ad valorem fee is fee that varies with the valuation. Ad valorem fee payable on a particular plaint is as much fixed as fixed fee and no rational basis exists for distinguishing between the two for the purpose of deciding whether the plaintiff is a pauper. Whether he is a pauper or not will depend upon the fee payable on the plaint, but surely not upon how the fee is calculated or whether it is one for all valuations or varies with the valuation.
(3.) The principal reason for the argument was that the words "where no such fee is prescribed" could not mean "where no such fee is chargeable or payable," because if no fee was chargeable or payable, there would be no object in declaring the plaintiff to be a pauper. This assumes that a plaintiff is declared to be a pauper only for the purpose of exempting him from payment of fee on the plaint; this assumption is erroneous. Under Rule 8 of the Order a pauper plaintiff is exempted from payment of fee in respect of any petition, appointment of a pleader or other proceeding connected with the suit. The Legislature might have thought it proper to exempt plaintiffs not entitled to property worth more than Rs. 100 from payment of these fees and, therefore, they would have to be declared as paupers even though they had not to pay any fee on the plaints. Section 19 of the Court-fees Act exempts plaints in certain suits from payment of any fee; so it cannot be argued that the words "where no such fee is prescribed" mean not that no fee is payable by law but that fee is payable by law but has not been prescribed, that is, it is not a fixed fee but left to vary from plaint to plaint.;