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PETITIONER: LALA RAM

       Vs.

RESPONDENT: SUPREME COURT OF INDIA & ORS.

DATE OF JUDGMENT: 31/10/1966

BENCH: RAO, K. SUBBA (CJ) BENCH: RAO, K. SUBBA (CJ) HIDAYATULLAH, M. SIKRI, S.M. BACHAWAT, R.S. SHELAT, J.M.

CITATION:  1967 AIR  847            1967 SCR  (1)  14  CITATOR INFO :  D          1973 SC2464  (4)  RF         1980 SC 808  (20)  D          1985 SC 694  (4)

ACT: Supreme  Court Rules, 1966, Rules 2(2) Order XL-Deposite  of cash  security  of  Rs. 2000 a pre-condition  for  filing  a review  petition in respect of an earlier dismissal of  writ petition  under  Art. 32-Such rule whether  ultra  vires  as obstructing the enforcement of a fundamental right.

HEADNOTE: Special  leave granted to the petitioner under Art.  136  of the  Constitution  was revoked for non-prosecution  and  his special  leave petition was dismissed.  He filed a  petition under Art. 32 claiming that the said revocation of leave and dismissal of special leave petition was in violation of  his fundamental  right  under Art. 14 inasmuch as  he  had  been deprived  of his right of appeal.  The Court  dismissed  the writ  petition,  The petitioner then filed  a  petition  for review  of  the  order.   The  review  petition  was   found defective  as the cash security of Rs. 2,000 as required  by O. XL r. 2(2) of the Supreme Court Rules, 1966 had not  been deposited.  The petitioner urged, relying on the decision of this  Court in Prem Chand Garg v. Excise  Commissioner  U.P. that the said rule was ultra vires inasmuch as it obstructed his remedy under Art. 32 in defence of a fundamental right. HELD:The raison d’etre for the rule in question may  be three fold, namely (i) the petitioner has been given a  full hearing and his case had been disposed of on merits; (ii) it is a deterrent against frivolous applications; and (iii)  it is to safeguard the interests of the respondent who has  the judgment in his favour. [16 B] There is an essential distinction between an application for the enforcement of a fundamental right and an application to review an order made therein.  The main purpose of a  review petition is not to enforce a fundamental right but to reopen an  order vitiated by an error on the face of the record  or for such other reasons. [16 H]

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Therefore  while  any  onerous  condition  for  enforcing  a fundamental  right  may infringe Art. 32 itself as  held  as held  in Garg’s case, but the same thing cannot-be said  for an application for review of the order made therein. [17 A] Prem Chand Garg v. Excise Commissioner, U.P. Allhabad [1963] Supp.  I S.C.R. 885, distinguished. The fact that deposit of security is a pre-condition only in the  case  of  a  review  petition  does  not  lead  to  any discrimination because the main difference between a  review petition  and other proceedings is that in the case  of  the former this Court is asked to reopen a matter which has been closed  after  hearing the parties.  This  is  a  sufficient reason   to  sustain  the  distinction  and  it  affords   a reasonable nexus to the objects sought to be achieved by the imposition of the pre-condition. [17 F] The  fact  that  a  rule  in  certain  circumstances  proves prejudicial   to  the  interests  of  a  petitioner   cannot invalidate the rule when admittedly this Court has power  to make it under Art. 145 of the Constitution. [17 D] 15 [Having regard to the circumstances of the case however  the Court reduced the amount of cash security from Rs. 2,000  to Rs. 250 only,]

JUDGMENT: ORIGINAL JURISDICTION : Review Petition No. 8 of 1966. Petition  for review of this Court’s order dated  March  24, 1966 dismissing Writ Petition No. 85 of 1966. Hira Lal Jain, for the petitioner. Niren De, Addl.  Solicitor-General and R. H. Dhebar, for the Attorney-General for India (on notice by the Court). The Judgment of the Court was delivered by Subba Rao, C.J. In this petition the question of the consti- tutional validity of Order XL, r. 2(2) of the Supreme  Court Rules, 1966, hereinafter called the Rules, is raised. The  petitioner filed a special leave petition  against  the judgment and decree of the High Court of Punjab passed in  a Letters  Patent  Appeal.   On January  14,1964,  this  Court granted special leave.  Thereafter, the petitioner deposited the  amount  of security and some money as  advance  towards printing  charges.   But, as he failed to file the  list  of documents,  on April 2, 1965, special leave granted  to  him was  rescinded and the special leave petition was  dismissed for  non-prosecution.   Then  the petitioner  filed  a  writ petition, being Writ Petition No. 85 of 1966, in this  Court under  Art.  32 of the Constitution on the ground  that  the said  order of revocation of the special leave  granted  and the dismissal of his special leave petition deprived him  of his right to appeal and that the said order offended Art. 14 of  the  Constitution.   On  March  24,  1966,  this   Court dismissed  that  writ  petition.  On  April  15,  1966,  the petitioner  filed  the present petition  for  reviewing  the order  of this Court in Write Petition No. 85 of 1966  dated March 24, 1966. The  Office Report pointed out that the Review Petition  was defective inasmuch as the provisions of Order XL, r. 2(2) of the  Rules were not complied with by the reason of the  fact that  no security for the costs of the respondents had  been furnished. Mr.  Hiralal  Jain,  learned  counsel  for  the  petitioner, contends  that Order XL, r. 2(2) of the Rules is void as  it infringes  Art.  14  of the  Constitution.   The  said  rule reads:-

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             "No   application  for  review  in   a   civil               proceeding  shall  be entertained  unless  the               party   seeking   review  furnished   to   the               Registrar of this Court at the time of  filing               the  petition for review cash security to  the               extent of two thousand rupees for the costs of               the opposite party". Under  this rule a review application cannot be  entertained at  all unless the cash security of Rs. 2,000 for the  costs of the opposite 16 party  is  furnished.  While in the case  of  special  leave petition cash security will have to be furnished within  the time  prescribed  after leave is granted, in the case  of  a review petition the deposit of the security amount is a pre- condition  for filing the petition.  This provision is  more onerous  than the other.  The raison detre for the rule  may be  three-fold, namely, (i) the petitioner has been given  a full  hearing and his case had been disposed of  on  merits; (ii)  it is a deterrent against frivolous applications;  and (iii) it is to safeguard the interests of the respondent who has the judgment in his favour. But, it is contended that this Court had held in Prem  Chand Garg  v. Excise Commissioner, U.P., Allababad(1) that  Order XXXV,  r.  12  of  the Supreme Court  Rules  then  in  force empowering the Supreme Court in writ petitions under Art. 32 of  the Constitution to require the petitioners  to  furnish security for the costs of the respondents was invalid as  it placed  obstructions  on the  fundamental  right  guaranteed under Art. 32 to move this Court for the enforcement of  the said  right,  and  that, on the parity  of  reasoning,  this ’Court  should hold that a petition for reviewing  an  order dismissing the application to enforce the fundamental  right would  equally  be  void  as contravening  Art.  32  of  the Constitution.   It  is also pointed out that  the  condition imposed in the case of review petitions is more onerous than that  imposed  in  the  case  of  applications  to   enforce fundamental rights, for, while in the case of the latter the security  would  have  to be furnished after  the  leave  is granted, in the case of the former it should be furnished at the  time of filing the petition itself.  Under Order  XXXV, r.  12,  of the Supreme Court Rules this Court  may  in  the proceedings  to  which the said order  applied  impose  such terms as to costs and as to giving of security as it thought fit.   At that time under the impugned rule  the  petitioner should  deposit a security of Rs. 2,500 in cash  within  six weeks.  While holding that the said rule offended Art. 32 of the Constitution, this Court observed:               "But if a rule or an order imposes a financial               liability on the petitioner at the thresh-hold               of  his petition and that too for the  benefit               of the respondent, and non-compliance with the               said rule or order brings to an end the career               of  the  said petition, that must be  held  to               constitute an infringement of the  fundamental               right guaranteed to the citizens to move  this               Court under Art. 32". At  the  same  time  this  Court  pointed  out  that   other conditions might be imposed which would not have the  effect of bringing to an end the career of the said petition.   But there is an essential distinction between an application for the enforcement of a fundamental right and an application to review an order made therein. (1)  [1963] Supp.  1 S.C.R 885,902. 17

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While  any  onerous condition for  enforcing  a  fundamental right may infringe Art. 32 itself, but the same thing cannot be  said  for an application for review of  the  order  made therein,  for  that  is  not an  application  to  enforce  a fundamental right.  The main purpose of a review petition is not  to enforce a fundamental right, but to reopen an  order vitiated  by an error on the face of the record or for  such other reasons.  But it is said that the effect of  reopening of the earlier order would be to restore his application  to enforce’ the fundamental right and, therefore, in effect and substance, an application to review such an order is also an application  to  enforce the fundamental right.  It  may  be that  this is a consequence of reopening an order,  but  the application  itself, as we have said, is not to enforce  the fundamental right. It   is   true  that  in  some  cases  and   under   certain circumstances  the pre-condition to furnish security may  be highly  prejudicial to-, the interests of a  petitioner  who has  a real grievance.  Such a result is inevitable  in  the application  of  any  rule.   But  that  in  itself   cannot invalidate  a rule which admittedly this Court has power  to make  under  Art. 145 of the Constitution.   In  appropriate cases this Court has the residuary power under Order  XLVII, r.  I of the Rules,, for sufficient reasons shown to  excuse the parties from compliance with any of the requirements  of the Rules and it may also give such directions in matters of practice  and  procedure  as  it  may,  consider  just   and expedient. It  is then contended that the enforcement of Order  XL,  r. 2(2)  of the Rules will lead to  unjustified  discrimination between  parties and, therefore, it offends Art. 14  of  the Constitution.   The discrimination alleged lies in the  fact that while security need not be given as a pre-condition for the  filing of any proceeding ill this Court, it has  to  be given  only  in  the case of a review  petition.   There  is certainly  a reasonable nexus between such a  condition  and the,   differences   between   parties   taking    different proceedings in this Court.  The main distinction which makes all the difference is that in the case of a review  petition this Court is asked to reopen a matter which has been closed after  hearing the parties.  This is a sufficient reason  to sustain the distinction and it affords a reasonable nexus to the  objects sought to be achieved by the imposition of  the pre-condition. But,  having  regard to the circumstances of  the  case,  in exercise of our discretionary power, we reduce the amount of cash  security  from Rs. 2,000 to Rs. 250  only.   The  said amount will be paid within two weeks from today. G.C.                                        Security  amount reduced. 18