Curative Petition

Curative Petition is not another option to file appeal after dismissal of Review Petition. It is an extremely high discretionary power which is in rare case exercised by the court. Curative Petition can be filed when certain conditions are satisfied. As per order XLVIII Rule 1 Curative Petitions shall be governed by Judgment of the Court dated 10th April, 2002 delivered in the case of Rupa Ashok Hurrah v. Ashok Hurrah and Ors in Writ Petition (C) No. 309 of 1997. This was a case of matrimonial discord where the question of validity of decree of divorce reached the Supreme Court after women withdraw the consent she had given to divorce by mutual consent.


Facts in the case of Rupa Ashok Hurrah v. Ashok Hurrah and Ors (2002) 4 SCC 388, AIR 2002 SC 1771.

The Constitution Bench of Supreme Court in this case dealt with the question of whether an aggrieved person is entitled to any relief against a final judgment/order of the Supreme Court, after dismissal of review petition (under Article 137 of the Constitution), either under Article 32 of the Constitution or otherwise. It was held that:


A final judgment/order passed by Supreme Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person whether he was a party to the case or not.


The jurisdiction of Supreme Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution read with Order XI, Rule 1 of the Supreme Court Rules, 1966.


It was pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.


Though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. Therefore, the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final Court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.


Therefore, it was held that the Supreme Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may reconsider its judgments in exercise of its inherent power. This was allowed by way of a curative petition.


It was held that except when very strong reasons exist, the Supreme Court should not entertain an application seeking reconsideration of an order of the Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, a petitioner is entitled to relief if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.


Detailed procedure for filing of curative petition was laid down in this case, inter alia, including, that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfillment of the requirements for filing the curative petition.


Rules for filing Curative Petition

As per Rule 2(1) order XLVIII of Supreme court Rules 2013 the petitioner, in the curative petition shall aver that the grounds mentioned there in had been taken in review petition filed earlier and that it was dismissed by circulation.


As per Rule 2(2) order XLVIII of Supreme court Rules 2013 A Curative Petition shall be accompanied by a certificate of the Senior Advocate that the petition meets the requirements delineated in the above case.


As per Rule 2(3) order XLVIII of Supreme court Rules 2013 A curative Petition shall be accompanied by a certificate of the Advocate on Record to the effect that it is the first curative petition in the impugned matter.


As per Rule 3 order XLVIII of Supreme court Rules 2013 the Curative Petition shall be filed within reasonable time from the date of Judgment or order passed in the Review Petitions. But no specific time period is mentioned in this Rule.

 

As per Rule 4 (1) order XLVIII of Supreme court Rules 2013 the curative petition shall be first circulated to a Bench of the three senior-most judges and the judges who passed the judgment complained of, if available.


As per Rule 4 (2) order XLVIII of Supreme court Rules 2013 unless otherwise ordered by the Court, a curative petition shall be disposed of by circulation, without any oral arguments but the petitioner may supplement his petition by additional written arguments.


As per Rule 4 (3) order XLVIII of Supreme court Rules 2013 if the Bench before which a curative petition was circulated concludes by a majority that the matter needs hearing then it shall be listed before the same bench, as far as possible.


As per Rule 4 (4) order XLVIII of Supreme court Rules 2013 if the Court, at any stage, comes to the conclusion that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.

 

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