2002 Supreme(SC) 463

2002(3) Supreme 208
Supreme Court of India
(Under Art. 32 of the Constitution of India)
S.P. Bharucha, CJI., Syed Shah Mohammed Quadri, Umesh C. Banerjee, S.N. Variava, Shivaraj V. Patil, JJ.
Rupa Ashok Hurra —Petitioner
versus
Ashok Hurra & Anr. —Respondents
Writ Petition (C) No. 509 of 1997
(With W.P. (C) Nos. 245/99, 338, 325-326, 663, 680/2000, 374/2001 and 108 of 1999)
Decided on 10-4-2002
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabjee, Attornery General, Shanti Bhushan, P.A. Mohammed, Anil B. Divan, Rajiv Dutta, K.K.Venugopal, D.A. Dave, Parag P.Tripathi, Ranjit Kumar, Dr. Rajiv Dhavan, P.S. Mishra, Senior Advocates, Ms. Kamini Jaiswal, Ms. Aishwarya Rao, Ms. Bipaakkhu Borthakur, P. Vittal Rao, Ms. Gunwant Dara, Ms. Sudha Gupta, Vikas Singh, Yunus Malik, Ms. Pallavi Parmar, Prashant Chaudhary, Prashant Bhushan, Sanjeev K. Kapoor, Narender Verma, Vishal Gupta, Sanjay Pathak, Anil Mittal, K.K. Mohan, A.T. Patra, S. Sukumaran, Nipun Malhotra, Dr. Mrs. Sonia Hurra, Divyang K. Chhaya, Varun Goswami, A.P. Medh, Dhruv Mehta, K.C. Kaushik, Prateek Jalan, Manish Singhvi, R.N. Poddar, C. Radhskrishna, Ms. Sushma Suri, S.N. Terdol, Sanjay R. Hegde, Satya Mitra, G. Prakash, K.B. Rohtagi, Ms. Aparna Rohtagi Jain, Manoj Aggarwal, Ranji Thomas, Javed M. Rao, Vineet Sinha, Ashok Aggarwal, Rajender Pd. Saxena, B.S. Banthia, V.B. Saharya, Rakesh K. Khanna, Reetesh Singh, Surya Kant, Ms. Sunita Sharma, Ms. Rekha Pandey, D.S. Mahra, Bimal Roy Jad, Bineet Kumar, V.K. Sidharthan, B.K. Khurana, S. Muralidhar, S. Vallinayagam, Ms. Neeru Vaid, Advocates.
For the Petitioner in W.P.No. 374/2001 : ­In-person­ (NP).

Very Important Point
Supreme Court’s final judgment cannot be assailed under Article 32 of the Constitution or otherwise. But a litigant may move a "curative" petition under Articles 129 and 142 r/w Supreme Court Rules under its "inherent powers in case he feels that "gross miscarriage of justice" has been done to him in the manner and on grounds and will be heard as suggested in this landmark judgment.

Headnote:(i) Constitution of India—Articles 32 and 137—Supreme Court Rules, 1966—Order XL Rule 1—Scope of assailing final Judgment/Order of Apex Court—After review—Whether an aggrieved person is entitled to any relief against a final Judgment—Order of this Court after dismissal of review petition either under Article 32 of the Constitution or otherwise i.e., under Article 137 or under Supreme Court Rules? (No)—As a writ of certiorari under Article 32 would not lie to challenge on earlier final judgment of this Court—Case Law referred. (Paras 10 to 13)

       Per Quadri J. (on his behalf and on behalf of CJI, Variava & Patil, JJ.)

       Held : On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment/order passed by this 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. In fairness to the learned counsel for the parties, we record that all of them at the close of the hearing of these cases conceded that the jurisdiction of this 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 XL Rule 1 of the Supreme Court Rules 1966. (Paras 14 & 15)

       Per Banerjee, J. (Concurring)

       Held : I have had the privilege of going through a very lucid expression of opinion by brother Quadri and while recording my concurrence therewith I wish to add a few paragraphs of my own. (Paras 55)

       (ii) Constitution of India—Articles 129 and 142—Supreme Court Rules, 1966—Order XLVII Rule 6—Inherent Powers of Supreme Court—Whether a final order passed by this Court can be corrected under its inherent powers after dismissal of Review Petition? (Yes) —How? (By a curative petition)—Requirement to entertain—On what grounds? (If it was passed without juris­diction or in violation of principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of Justice to an aggrieved person)—It should be a rarity­ —­If frivolously dismissed with hearing costs—Case Law discussed—Point is accordingly answered.

       Held : (Per Quardri, J. (on his behalf and also on behalf of CJI, Variava and Patil, JJ.) : The contentions pose the question, whether an order passed by this Court can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the Court or miscarriage of justice to an aggrieved person. (Para 22)

       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 that the scope of the power of this Court under Article 139 as a court of record and also adverted to the extent of power under Article 142 of the Constitution. 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 re-consider 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. 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 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. 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. 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. It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner. Insofar as the present writ petitions are concerned, the Registry shall process them, notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation. The point is accordingly answered. (Paras 47 to 54)

       Per Benerjee, J. (adding)

       Brother Quadri has taken very great pains to formulate the steps to be taken and the methodology therefor, in the event of there being an infraction of the concept of justice, as such further dilation would be an unnecessary exercise which I wish to avoid since I have already recorded my concurrence therewith excepting, however, lastly that curative petitions ought to be treated as a rarity rather than regular and the appreciation of the Court shall have to be upon proper circumspection having regard to the three basic features of our justice delivery system to wit, the order being in contravention of the doctrine of natural justice or without jurisdiction or in the event of there is even a likelihood of public confidence being shaken by reason of the association or closeness of a judge with the subject matter in dispute. In my view, it is now time that procedural justice system should give way to the conceptual justice system and efforts of the law Court ought to be so directed. Gone are the days where implementation of draconian system of law or interpretation thereof were insisted upon - Flexibility of the law Courts presently are its greatest virtue and as such justice oriented approach is the need of the day to strive and forge ahead in the 21st century. No costs. (Para 69)