Registry Shouldn't Exercise Judicial Function, Can't Refuse Curative Petition Saying Review Was Dismissed In Open Court : Supreme Court

The Supreme Court recently set aside an order passed by one of its Registrars, vide which registration of a curative petition was declined because the underlying review petition was dismissed after open court hearing (not by circulation). The Court held that the order was contrary to the Supreme Court Rules, 2013 and the power being judicial in nature ought to have been exercised by a Bench of the Court.

"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. As we have already observed, that would be a judicial exercise. The 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", said the Bench of Justices Aniruddha Bose and Sudhanshu Dhulia.

Factual Background

The genesis of the case lay in a suit filed by the appellant under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 ("the Act"), which was decreed by a Civil Judge but later dismissed in appeal by the High Court on the ground of maintainability. The High Court was of the view that a suit did not lie in respect of transactions which took place prior to September 23, 1992, ie the date on which the Act became operational.

In 2019, an appeal against the High Court judgment was dismissed by a three-Judge Bench of the top Court. A review petition against the same was also heard and dismissed after open Court hearing. When the appellant preferred a curative petition, a Registrar of the Court passed a common order in 6 similar petitions, refusing to register them. Against the Registrar's order, the appellant filed an appeal under Rule 5 of Order XV of the 2013 Rules.

Court Observations

On the facts of the case, the Court noted that the grounds on which a Registrar may refuse to receive a petition are enumerated in Rule 5 of Order XV of the 2013 Rules. However, the same do not empower a Registrar to reject a curative petition solely on the ground that the review petition was dismissed after an open Court hearing.

"Hearing of a review petition in open Court cannot be brought within the ambit of the expression “that it discloses no reasonable cause” as employed in Rule 5 of Order XV of the 2013 Rules. That factor would be, at best, a technical shortcoming."

After going through a plethora of judgments, including Union of India & Ors. v. M/s. Union Carbide Corporation & Ors, where a Constitution Bench entertained a curative petition despite the review having been dismissed upon open Court hearing, it was concluded that the question of maintainability of a curative petition has to be ultimately examined by a Bench of the Court.

The Court also referred to the 5-Judge Bench decision in Rupa Ashok Hurra v. Ashok Hurra and Another, based on which statutory Rules were framed. As per the decision, 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.

On a reading of the decision in Rupa Ashok Hurra, the current Bench opined that although it was specified that a curative petition must contain an averment regarding review petition's dismissal by circulation, the consequence of dismissal on oral hearing in open Court was not enunciated.

"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."

For cases where averments in the curative petition, as required by Rupa Ashok Hurra, are not made, the Court said that recourse must be had to Order LV Rule 2 (Power to Dispose and Inherent Powers) of the 2013 Rules.

It laid down that in case of a curative petition arising from a review petition dismissed on open Court hearing, an application must be made containing a prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of the 2013 Rules as well as for the matter to be placed before the Chamber Judge. Thereafter, the apt course for the Registry would be to obtain instructions from the Chamber Judge and communicate the same to the party.

"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." 

In cases where the review plea is dismissed by circulation, the curative petition has to be circulated first to a Bench of three senior-most Judges of this Court and the Judges who passed the judgment complained of, if available. Thereafter, the course prescribed in sub-clauses (2), (3) and (4) of Rule 4 of Order XLVIII of the 2013 Rules shall be followed as may be applicable. 

Decision

While setting aside the Registrar's order for not following specified provisions, the Court did not remand back the matter as it was initiated in 2020 and substantial time had elapsed. On a perusal of the curative petition and the order of the Review Court, it found no case for entertaining the appellant's plea and/or sending the matter for consideration of the Chamber Judge (for instructions).

Appearance: Senior Advocate Raju Ramachandran (Amicus Curiae); Advocate Anand Sanjay M Nuli (for appellant); Senior Advocate Vijay Hansaria (for respondent)

Case Title: M/s Brahmaputra Concrete Pipe Industries Etc. Etc. v. The Assam State Electricity Board and Others, Curative Petition (Civil) Diary No. 23828/2020 (and connected matters)

Citation : 2024 LiveLaw (SC) 163

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