Lala Ram Vs. Supreme Court of India
& Ors  INSC 240 (31 October 1966)
31/10/1966 RAO, K. SUBBA (CJ)
RAO, K. SUBBA (CJ) HIDAYATULLAH, M.
CITATION: 1967 AIR 847 1967 SCR (1) 14
D 1973 SC2464 (4) RF 1980 SC 808 (20) D 1985
SC 694 (4)
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.
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Art. 136 of the Constitution was revoked for non-prosecution and his special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] 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  Supp. I S.C.R.
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,]
ORIGINAL JURISDICTION : Review Petition No. 8
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:- "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
(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)  Supp. 1 S.C.R 885,902.
17 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.