The creation of curative jurisdiction by Supreme Court is based on the Constitution Bench judgment in Rupa Ashok Hurra vs. Ashok Hurra, 2002 (4) SCC 388. Prior to the said judgment, the decisions in certain matters used to be challenged under Article 32 of the Constitution. The majority speaking through Quadri, J., opined that Article 32 petition could not be entertained as the same was not maintainable.
On that basis the curative principle was evolved. While evolving the said principle, the majority noted as follows:
“48. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article 142 of the Constitution.
49. The upshot of the discussion in our view is that this 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.
The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common ground that except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of this 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.
51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement 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.”
Paragraph 52 of the said decision reads as follows:
“The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.”
Paragraph 52 clearly lays down that the curative petition shall aver specifically that the ground mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a senior advocate with regard to the fulfillment of the above requirements. The constitution of the Bench has been laid down in paragraph 53. The relevant part of the said paragraph is as follows:
“We are of the view that since the matter relates to re-examination of a final judgment of this Court, though on limited ground, the curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders.”
Regard being had to what has been stated by the Constitution Bench, the Rule position of Order XLVIII which deals with the curative petition has to be appreciated. For the sake of appropriate appreciation, the entire Rule is reproduced below:
“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.509 of 1997.
2.(1) The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the Review Petition and that it was dismissed by circulation.
(2) A Curative Petition shall be accompanied by a certificate of the Senior Advocate that the petition meets the requirements delineated in the above case.
(3) 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. 3. The Curative Petition shall be filed within reasonable time from the date of Judgment or Order passed in the Review Petition.
4.(1) 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.
(2) 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.
(3) If the bench before which a curative petition was circulated concludes by a majority that the matter needs bearing then it shall be listed before the same Bench, as far as possible.
(4) 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.”