# Prem Chand Garg v. Excise Commissioner, U.P. Allahabad

- **Citation:** [1967] 2 S.C.R. 14
- **Court:** Supreme Court of India
- **Decided:** 1966-03-24
- **Case number:** Writ Petition No. 85 of 1966
- **Bench:** K. Subba Rao, M. Hidayatullah, S. M. SIKRI AJl, D B R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prem-chand-garg-v-excise-commissioner-u-p-allahabad-3975
- **Pages:** 4

## Headnote

Supreme Court Rules, 1966, Rules 2(2) Order XL-Deposit of cash
security of Rs. 2000 a
pre<ondition
for filing
a review petition in
respect of an earlier dismissal of writ petition under Art. 32-Such rule
whether ultra vircs as obstructing the enforcement of a funda1ne11tal right.
Special leave granted to the petitioner under An. 136 of the Constitution was revoked for non-prosecution and his special leave pe1ition wa ..
dismissed.
He filed a pctilioo 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 Coun dismissed the writ petition. The peti·
tioner then filed a petition for review of the order.
The review ~tion
was found defective •s the cash security of Rs.
2,000 as
requ1red by
0. XL r. 2(2) of the Su~rcme Coun Rules, 1966 had not been deposited.
The petitioner urged, rdymg on the decision of this Coun in Prem Chand
Garg v. Excise Co111,ni~·sio11er U.P. that the said rule was u/lra vJres inasmuch as it obstructed his remedy under Art. 32 in defence of a fundamental right.
HELD : The raison d'rtre 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 merit•; (ii) it is a deterrent against frivolous apptfl:a.
lions; and (iii) it is to safeguard the interes.ts of the respondent who has
the judgment in his favour. [ 16 BJ
There is an essential distinction between an application
for the enforcement of a fundamental right and an applicalton to review an order
made therein.
The main purpose of a review petition is not 10 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 HJ
Therefore while any onerous condition for enforcing a fundamental
right may infringe An. 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. Allahabad
[1963]
c
D
E
F
Supp. I S.C.R. 885, distinguished.
G
The fact that deposit of security is a pre-condition only in the ~
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 bearing the parties. This is a sufficient reason to sustain
the distinction and it affords a reasonable ne<Us to the objects sought to
be achieved by the imposition of the pre-rondition. [17 FJ
H
The fact that a rule in certain circumstances proves prejudicial to the
interesu of a petitioner cannot invalidate the rule when admittedly this
Coun has power to make it under Art. I 45 of the Constitution. [17 DJ
B
c
D
E
F
G
H
LALA RAM v. SUPREME COURT (Subba Rao, C.J.)
15
[Having regard to the circumstances of the case however the Court
reduced the amount of cash security from Rs. 2,000 to Re. 250 only.]
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, Addi. Solicitor-General and R. H. Dhebar, for the
Attorney-General for India (on notice by the Court).

## Text

LALA RAM
I',
SUPREME COURT OF INDIA & ORS.
0Clober31, 1966
A
[K. SUBBA RAO, CJ., M. HIDAYATULLAH, S. M. SIKRI AJl,'D
B
R. S. BACHAWAT, JJ.)
Supreme Court Rules, 1966, Rules 2(2) Order XL-Deposit of cash
security of Rs. 2000 a
pre<ondition
for filing
a review petition in
respect of an earlier dismissal of writ petition under Art. 32-Such rule
whether ultra vircs as obstructing the enforcement of a funda1ne11tal right.
Special leave granted to the petitioner under An. 136 of the Constitution was revoked for non-prosecution and his special leave pe1ition wa ..
dismissed.
He filed a pctilioo 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 Coun dismissed the writ petition. The peti·
tioner then filed a petition for review of the order.
The review ~tion
was found defective •s the cash security of Rs.
2,000 as
requ1red by
0. XL r. 2(2) of the Su~rcme Coun Rules, 1966 had not been deposited.
The petitioner urged, rdymg on the decision of this Coun in Prem Chand
Garg v. Excise Co111,ni~·sio11er U.P. that the said rule was u/lra vJres inasmuch as it obstructed his remedy under Art. 32 in defence of a fundamental right.
HELD : The raison d'rtre 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 merit•; (ii) it is a deterrent against frivolous apptfl:a.
lions; and (iii) it is to safeguard the interes.ts of the respondent who has
the judgment in his favour. [ 16 BJ
There is an essential distinction between an application
for the enforcement of a fundamental right and an applicalton to review an order
made therein.
The main purpose of a review petition is not 10 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 HJ
Therefore while any onerous condition for enforcing a fundamental
right may infringe An. 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. Allahabad
[1963]
c
D
E
F
Supp. I S.C.R. 885, distinguished.
G
The fact that deposit of security is a pre-condition only in the ~
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 bearing the parties. This is a sufficient reason to sustain
the distinction and it affords a reasonable ne<Us to the objects sought to
be achieved by the imposition of the pre-rondition. [17 FJ
H
The fact that a rule in certain circumstances proves prejudicial to the
interesu of a petitioner cannot invalidate the rule when admittedly this
Coun has power to make it under Art. I 45 of the Constitution. [17 DJ
B
c
D
E
F
G
H
LALA RAM v. SUPREME COURT (Subba Rao, C.J.)
15
[Having regard to the circumstances of the case however the Court
reduced the amount of cash security from Rs. 2,000 to Re. 250 only.]
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, Addi. 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 constitutional 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 Writ 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
SUPREME COURT REPORTS
[1967] 2 S.C.R.
party is furnished. While in the case of special leave petition cash
A
&eeurity 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 d'etre 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
B
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 Coun had held in Prem Chand
Garg v. Excise Commissioner, U.P., Allahabad(') that Order XXXV,
r. 12 of the Supreme Court Rules then in force empowering the
C
Supreme Court in writ petitions under Art. 32 of the Constitution
to require the petitioners to furnish &CCurity for the costs of the
respondent& waa Invalid as it placed obstructions on the t\lndamental
right guaranteed under Art. 32 to move this Court for the enfbrcemcnt of the said right, and that, on the parity of reasoning, this
Court should hold that a petition for reviewing an order ·dismissing
D
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
E
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
F
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 tundamental right guaranteed to the citizens to move
this Court under Art. 32".
G
At the same time this Court pointed out that other con~i~ns
might be imposed which would not have the effect of bnngmg
to an end the career of the said petition. But there is an essential
H
diltinction between an application for the enforcement of a t\ln~
mental right and an application to review an order made therein.
(1) [1~631 Supp. 1 S.C.R BBS, 902.
,
A
B
c
D
E
F
G
LALA RAM v. SUPREME COURT (Subba Rao, C.J.)
17
White 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 J'he main
purpose of a review vetition 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 api;>lication 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 thCI application of any rule,
But that ill itself cannot
invalidate 11 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 in 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 matte~ 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.
Q,C,
Security amount reduced.