Judgment

SUBBA RAO, CJI. : In this petition the question of the constitutional validity of Order XL, R. 2 (2) of the SC Rules, 1966, hereinafter called the Rules, is raised.

2. 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 But, as he failed to file the list of documents, on April 2, 1965, special leave granted to him was rescinded and the special leave petition was dismissed for non-prosecution.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.

3. 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.

4. 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. 2000 for the costs of the opposite 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.

5. But it is contended that this Court held held in Prem Chand Garg v. Excise Commissioner, U. P. Allahabad (1963) Supp 1 SCR 885 .at p. 902: that Order XXXV, R. 12 of the SC Rules then in force empowering the SC 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 SC 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