Rupa Ashok Hurra v. Ashok Hurra and Another AIR 2002 SC 177

[Curative petitions]

FACTS:

• The facts stated in the original application were that the petitioner and the respondent got married as per the Hindu rites and customs at Ahmedabad. Due to some issues, there was a difference of opinion between the husband and wife, which persisted till 1983, in which the wife left the matrimonial home.

• In 1984, both the parties had filed a joint petition for divorce under section 13B of the Hindu Marriage act. They prayed for a simple decree of dissolution of marriage by way of mutual consent.

• In 1985, the husband alone filed an application, where he prayed for the passing of a decree for divorce. Thereafter the wife was asked to be present for the order, but the same got adjourned, and during each adjournment, the parties were having talks on compromise and settlement. Everything went unsuccessful, and in 1986, the wife filed an application to withdraw her consent for the divorce and prayed for dismissal of divorce by mutual consent. This was objected to by the husband and stated that the wife has no right to invoke the consent already granted.

• Because of the objection made by the wife, the husband had approached the Supreme Court praying for divorce and appeal to be allowed.

• In the judgment delivered on March 10, 1997, the two-judge bench of the Supreme Court allowed the SLP subject to the fulfillment of the conditions that a decree of divorce for dissolution shall be passed under section 13B of Hindu Marriage Act, 1955.

• The wife filed a review petition under the Constitutional provision of Article 137 against the order passed in the Special Leave Petition. Unfortunately, her review petition was also dismissed. But, the three-judge bench which dismissed the review petition had referred the same to the constitutional bench by framing the following constitutional issues.

• Whether the judgement of this Court dated 10-3-1997 in Civil Appeal No. 1843 of 1997 (Ashok Hurra v. Rupa Bivin Zaveri, (1997) 4 SCC 226) can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a judgement of this Court after the petition for review of the said judgement has been dismissed are, questions which need to be considered by a Constitution Bench of this Court.

ISSUE:

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 the 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?

CASES REFERRED TO:

1. To what extent the principle of stare decisis binds this Court, was considered in the case of Keshav Mills Co. Ltd. The Court expressed its view thus: “That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.”

2. In regard to the effect of an earlier order of this Court Sawant, J. speaking for the Constitution Bench observed in Cauvery Water Disputes Tribunal’s case as follows: “When, further, this Court overrules the view of law expressed by it in an earlier case, it does not do so sitting in appeal and exercising appellate jurisdiction over the earlier decision. It does so in exercise of its inherent power and only in exceptional circumstances such as when the earlier decision is per incuriam or is delivered in the absence of relevant or material facts or if it is manifestly wrong and productive of public mischief.”

3. In the cases of Ramdeo Chauhan and Lily Thomas, the question before the Court was, the scope of the power of review of a judgment of this Court under Article 137 of the Constitution read with Section 114, Order XLVII of the C.P.C. and Order XL Rule 1 of the Supreme Court Rules, 1966.

4. This Court in Harbans Singh’s case, on an application under Article 32 of the Constitution filed after the dismissal of special leave petition and the review, reconsidered its judgment. A.N. Sen, J. observed: “Apart from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution, I am of the opinion that this Court retains and must retain an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done.”

RATIONALE:

1. The result 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles – ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principle of natural justice or apprehension of bias due to a Judge who participated in decision making process not disclosing his links with a party to the case, or abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty.

7. The law existing in other countries is aptly summarized by Aaron Barak in his treatise thus: “The authority to overrule exists in most countries, whether of civil law or common law tradition. Even the House of Lords in the United Kingdom is not bound any more by its precedents. The Supreme Court of the United States was never bound by its own decisions, and neither are those of Canada, Australia, and Israel.”

HELD:

After analysing the historical background of the prerogative remedies in England and after considering several cases, the Supreme Court held that in order to prevent abuse of process of law and to cure gross miscarriage of justice, it is open to the court to reconsider its decision in the exercise of its inherent jurisdiction. For that purpose, the court devised a method of filing “curative petitions”. The court was conscious of inherent dangers of floodgates being opened under the name and style of “curative” petitions and allowed such petitions only on the ground of violation of the principles of natural justice; i.e. 1) audi alteram partem (hear the other side), and 2) nemo debet esse judex in propria causa (no man shall be a judge in his own cause).

COMMENTARY:

Article 137 of the Constitution enables the Supreme Court to review “any judgment” pronounced by it. Now suppose, an aggrieved party feels that there is gross miscarriage of justice and the review petition is rejected by the court, what will happen? No second review lies. Then, whether injustice said to have been sustained by the party be perpetuated and perpetrated? Whether no remedy is available after disposal of review petition by the Supreme Court? All these questions were raised in Rupa Ashok Hurra v. Ashok Hurra. - Lectures On Administrative Law