curative petition

Supreme Court: In an application challenging the order of the Supreme Court Registrar dated 31-10-2022 declining registration of a set of ‘curative petitions’, the Division Bench of Aniruddha Bose* and Sudhanshu Dhulia, JJ. clarified that Registry was not vested with power to decide whether a review petition dismissed after open court hearing merited relook through curative jurisdiction of the Court. It further directed the Registry to consult with 3 senior-most judges of Supreme Court, and the judges who passed the judgment challenged.

The instant appeals were filed under Rule 5 of Order XV of Supreme Court Rules, 2013 (‘2013 Rules’) regarding refusal of petition by the Registrar for being without reason/frivolous/ containing scandalous matter, and such refusal order may be appealed against within 15 days.

The Court perused the impugned order of the Registrar and hinted towards the roots of the dispute relating to “maintainability of a suit instituted by the appellant under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 (‘1993 Act’).”

The appellant’s suit was decreed by the Trial Court but dismissed by the High Court on the grounds of maintainability, holding that suit under the 1993 Act would not lie in respect of transactions which took place before 23-09-1992 (the date on which the Act became operational). Appeal against the said High Court order was dismissed on 23-01-2019 by a three-Judge Bench of the Supreme Court, plea for review was also dismissed on 18-12-2019 in open court after oral hearing finding no error apparent on face of record of the judgment.

The Court highlighted the fact that an ordinance was promulgated on 23-09-1992 before the 1993 Act, which permitted certain small scale industrial undertakings to claim interest on delayed payment. When a question arose regarding whether the right to sue for interest under 1993 Act could relate back to the delayed payments made under agreements made before the date of promulgation of the ordinance, and a Full Bench of Gauhati High Court opined that right to claim interest under 1993 Act would not extend to agreements or contracts entered before 23-09-1992.

While discussing the factual aspects of the lead matter, the Court informed that the judgment by the three Judge Bench wherein it was held that material date for instituting suit for interest would depend on whether delivery was made by supplier after coming into operation of the 1993 Act or not, and if that was the case, the suit for recovery of interest on delayed payment was maintainable. The appellant sought reliance on dates of raising the bills subsequent to 23-09-1992. Since the 3-Judge Bench did not find evidence of any delivery made subsequent to date of coming into operation of the 1993 Act, for which interest was being claimed for delayed payment. Since the review petition was dismissed, the curative petition came up which became the point of concern in the instant matter.

Highlighting the roots, the Court explained that there was no specific jurisdiction conferred under the Constitution of India or any other statutory provision upon the Supreme Court to entertain curative petitions, except the 2013 Rules, which deal with the procedure for filing curative petitions. It further explained that “Article 137 of the Constitution of India lays down the jurisdiction of the Court to review its own judgment or order. Article 145 of the Constitution of India empowers this Court to make rules for regulating the general practice and procedure of the Court.”

Digging its history, the Court noted that the expression ‘curative petition’ was used by the Constitution Bench in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 wherein doors were opened for Supreme Court to reconsider its judgments while exercising its inherent powers (traced to Articles 129 and 142 of Constitution of India) in order to prevent abuse of Court’s process and to cure gross miscarriage of justice. Perusing specific paragraphs of the said decision, the Court expressed that “one of the pre-conditions for filing a curative petition is that the petitioner must specifically aver that the grounds mentioned in such petition had been taken in the review petition and that it was dismissed by circulation.” The Court highlighted that the provision for filing curative petitions was incorporated in Order XLVIII of the 2013 Rules.

The appellants particularly challenged the Registrar’s power/jurisdiction to decline registration of curative petition and claimed that the same should be decided by a Supreme Court Bench. Regarding 30 days’ limitation period for filing review petition, the Court opined that “curative jurisdiction being a special jurisdiction derived from inherent power or jurisdiction of this Court, the limitation prescribed for filing of review petition cannot be extended to apply in the cases of curative petition.” The Court explained that curative jurisdiction of Supreme Court does not flow from its power to review, but derived from Articles 129 and 142 of the Constitution. It further highlighted that Rule 3 of Order XLVIII of 2013 Rules specifically stipulates filing curative petition within a reasonable time from the date of judgment or order passed in the review petition, hinting that there was no time frame formulated in this regard.

On argument to reconsider judgment in Rupa Ashok Hurra (supra), the Court pointed that the said decision was delivered by a 5-Judge Bench, and the instant Bench could not test its legality, or comment on the question of its reconsideration. The Court further clarified that “oral hearing has not altogether been dispensed with in curative jurisdiction also and it has been left at the discretion of the Bench to decide as to whether the curative petitions ought to be dismissed by circulation without oral arguments or there shall be oral submission after notice to the opposite party. This procedure is contained in Rule 4 of Order XLVIII of the 2013 Rules.”

On the question of oral hearing, the Court referred to Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737 and then Union of India v. Union Carbide Corpn., 2023 SCC OnLine SC 264 wherein the Court reaffirmed direction contained in Rupa Ashok Hurra (supra) limiting the scope of curative petitions. The Court expressed that “what is apparent from the tenor of the aforesaid judgments is that the question of maintainability of a curative petition has to be ultimately examined by a Bench of this Court.” It further highlighted that the question of composition of Bench could arise only after the curative petition was entertained, and clarified that the point to be determined in the instant matter was not regarding whether the curative petition out to be dismissed by circulation or not, but whether Registry was empowered to dismiss a curative petition on the ground that no averment had been made to the effect that the review petition was dismissed by circulation.

The Court acknowledged the argument that it was a matter to be decided by the Court and not by the Registry, being a judicial process. It further highlighted that the grounds for refusal to receive a petition by the Registry were enumerated in Rule 5 of Order XV of 2013 Rules, but does not empower Registrar to decline registration of a curative petition on the ground as disclosed in the instant curative petition. The Court clarified that hearing a review petition in open court could not be brought within the ambit of expression “that it discloses no reasonable cause”, and such factor would be a technical shortcoming. The Court hinted towards Union Carbide (supra) wherein, the Bench chose to examine curative petition in spite of dismissal of review petition in open court hearing, although the curative petition for enhancement compensation for Bhopal Gas Tragedy victims was ultimately dismissed.

While considering the course to be followed by Registray after finding a curative petition lacks averment to the effect that the grounds mentioned had been taken up in the review petition which was dismissed by circulation, hinting towards the precedents referred above, the Court cautiously expressed that “Registry cannot be vested with power to decide whether a review petition, after being dismissed in open Court hearing, merited relook through the curative jurisdiction…. Registry in a situation of this nature, cannot keep the matter pending as “defective” either, as is done in the cases of delayed filing of petition unaccompanied by applications for condonation of delay.” The Court explained that in such cases, filing an application for condonation of delay would cure initial defect, and then it would be for the Court to decide whether delay could be condoned or not.

Coming back to the instant facts, the Court clarified that curing defect would not be within the Registry’s jurisdiction, and also said that an appeal under Order XV Rule 5 of 2013 Rules would not be proper course since the situations for Registry’s refusal to entertain a petition were clearly expressed. The Court commented that “Failure to make averment in terms of Rule 2(1) of Order XLVIII of the 2013 Rules is not one of the conditions which vests the Registry to refuse to receive a curative petition in itself.” The Court opined that the course to be followed by the Registry in a similar proceeding was provided under Order LV Rule 2 of 2013 Rules.

The Court viewed that a curative petition against order dismissing review petition heard in open court must contain a plea/prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of 2013 Rules, and that Registry would seek instructions from Judge and communicate the same to parties. It added that “In the second part of Rule 2 it is provided that the Registrar herself can direct the applicant to serve the other party with a notice of motion returnable before the Court while she opines that it is desirable that the application should be dealt with in the open Court. The said part of the Rule would not apply in a case where the applicant seeking to invoke curative jurisdiction approaches this Court after the review petition is dismissed in open court hearing.”

The Court further directed that in other cases pertaining to curative petitions wherein review plea was dismissed by circulation, curative petition be first circulated to a Bench of 3 senior-most judges of Supreme Court, and judges who passed the judgment challenged (if available). Thereafter, the course prescribed under sub-clauses (2), (3) and (4) of Rule 4 of Order XLVIII of 2013 Rules be followed.

Since the said course was not followed while refusing registration of curative petition in the instant matter, the Court found the same contrary to the Rules and accordingly set it aside.

However, the Court perused the initial order, order of the Review Court and curative petitions to conclude that no case was made out by the appellant for invoking curative jurisdiction for a relook.

[Brahmaputra Concrete Pipe Industries v. Assam State Electricity Board, 2024 SCC OnLine SC 195, decided on 26-02-2024]

Judgment by: Justice Aniruddha Bose

Know Thy Judge | Supreme Court of India: Justice Aniruddha Bose

Advocates who appeared in this case :

For Petitioner: Senior Advocate Anand Sanjay M Nuli, Advocate on Record Nuli & Nuli, Advocate Agam Sharma, Advocate Suraj Kaushik, Advocate Akhila Wali, Advocate Nanda Kumar, Advocate Dharm Singh, Advocate Shiva Swaroop

For Respondents: Senior Advocate Vijay Hansaria, Advocate on Record Sneha Kalita

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