Lawsikho Blog

Learn about the concept of curative petitions and how to draft them before the Supreme Court of India. If you are someone who wants to practice in the Supreme Court or if you are preparing for the Supreme Court Advocate-on-Record exam, then this article is a must-read for you.

Introduction

It was the year 2018, and I was preparing for my Advocate on Record exams. 

Practicing in the Bombay High Court was great– amazing commercial matters, great judges, solid infrastructure. But, for an advocate, there is nothing more prestigious than becoming an Advocate on Record of the Supreme Court. 

It is the elite club for anyone who wants to build a career in litigation. 

For the ones who do not know, only an Advocate on Record has the exclusive right to file a case in the Supreme Court of India. Anybody can start their practice in the Supreme Court, but to file a case in the Supreme Court, you must pass the AOR exam. 

Just to give you a little background, there are four papers in the exam, and one of them is the Practice & Procedure paper. If you want more details, you can visit here.

So, while I was preparing for this paper, there was one question that I observed was commonly asked, and it was on curative petitions. I had heard of this term before, but never thought of researching. Now, however, I had to.

I looked up the Constitution of India and found nothing. It only spoke about the power of review. 

So, I dug a little deeper and found out that the final remedy available to anyone aggrieved by an order of the Supreme Court is to file a curative petition. It is filed against an order of review. 

Huh? So, where does the power come from if not the Constitution? How is it exercised? Exam aside, I was genuinely curious. And, the answers are quite interesting. 

So, read on if you want to become an Advocate on Record, or want to argue in the hallowed halls of the Supreme Court, or because you are a genuinely curious cat. 

What is curative jurisdiction of the Supreme Court?

We all know that the Supreme Court is the last and final court of appeal in any judicial process. 

This means that once the Supreme Court has decided a matter, the journey of a case comes to an end. But have you considered what happens if the litigant suffers a grave miscarriage of justice? 

Well, the answer is to file a Review Petition. But what after that? What if the Review Petition also gets dismissed?? What if it is one of those rare cases? 

Should the litigant simply accept the outcome? The answer is NO.

To prevent abuse of its process and to cure gross miscarriage of justice, the Supreme Court may reconsider its judgements in exercise of its inherent and extraordinary powers. 

That is why the Supreme Court evolved its curative powers for the first time in the landmark case of Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388]. I will elaborate on the judgment in the latter part of this article. 

I need you to remember a few things before we proceed:

• The hierarchy: any order- challenged in review- review order challenged in curative 
• A curative petition can only be filed on the grounds laid down in the judgment of Rupa Ashok Hurra. However, the Judgment itself states that the grounds on which the Court may exercise such powers are not exhaustive.
• This petition can only be filed if a Senior Advocate certifies that the grounds from the judgment are met 
• A curative petition will be entertained only if the review petition is dismissed by the circulation.

What does “dismissed by circulation” mean?

So, unlike Appeals and Writs, the parties do not get an open court hearing in Review Petitions as a matter of right. What follows once a Review Petition is filed is that the Bench/Judge decides the Review Petition in his Chambers and can dismiss it without hearing the party.  In this case, when the Review Petition is dismissed, the Registry simply circulates the Order of dismissal to the concerned AoR. Hence, the term: dismissed by circulation.

But, if upon reading the contents of the Review Petition the Court thinks that the parties shall be heard, the Review Petition is first listed to hear whether the Review Petition can be heard in open court or not. Therefore, with every Review Petition, a separate Application for Permission of Open Hearing is attached.

If the Court decides to hear this Application, and the matter is listed, the following can be the outcome:

• The Court thinks that sufficient grounds are not made out: Review Petition is dismissed 
• The Application is allowed: Review Petition is then heard and then decided

Alright, so now you have some basic idea about curative petitions. Let’s understand how they are different from other forms of relooking at the case— aka review and appeal. 

What is the difference between a review petition and a curative petition?

Particulars	Review petition	Curative petition
Constitutional Provision	It is expressly conferred on the Supreme Court under Article 137 of the Constitution of India.	It is evolved by the Court by invoking its inherent powers under Article 142 of the Constitution of India.
Procedure	As a general rule, an application for review is disposed of without any oral arguments. The review petition is circulated in chambers and considered by the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. However, the Court has the discretion to direct an oral hearing in exceptional cases. One such exception was laid down by the Supreme Court in the case of Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India & Others, [(2014) 9 SCC 737], where it was held that review petitions arising out of cases involving the death penalty should not be disposed of without affording an opportunity for oral hearing and in such cases, the minimum bench strength should be of atleast three judges.	The petition is heard by the Chief Justice and three senior most judges of the Supreme Court in addition to the judges who passed the judgment, if available. Oral arguments do not take place unless the Bench feels there is merit in the matter.
Limitation	Order XLVII Rule 2 of the Supreme Court Rules, 2013 states that a review petition must be filed within 30 days from the date of judgment or order sought to be reviewed.	No time limit is given for filling a curative petition but it must be filed within a reasonable time.
Grounds	In a Civil matter a review can be sought on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him; mistake or error apparent on the face of the record; or any other sufficient reason. In a criminal matter, a review can be filed only if the judgment suffers from an error apparent on the face of the record.	After the review petition has been dismissed by circulation and when the petitioner proves that there was a violation of principles of natural justice or gross miscarriage of justice, the petitioner can approach the court by filing a curative petition. Further, in a curative petition, it shall be specifically averred that the grounds taken in the Curative Petition were the same grounds as taken in the review and it was dismissed by circulation.

Since we are discussing differences, you should also know the preliminary difference between an appeal and a curative petition.

What is the preliminary difference between an appeal and a curative petition?

Unlike an appeal to a larger bench that involves examination of the merits of the case and sometimes involves reopening the case, in a curative petition, the court will decide the petition on very limited grounds and will not go into the merits of the case. It will confine the examination to the points mentioned in the curative petition. So, this means that a curative petition is not an appeal to the larger bench.

Now, let us look at the evolution of the jurisprudence of curative jurisdiction.

How did the jurisprudence of curative jurisdiction evolve?

Let us first look at how curative petitions came into being.

Under Article 137 of the Constitution of India, the Supreme Court has been conferred with review powers. As a matter of fact, the Supreme Court in AR Antulay v RS Nayak had held that it has de hors Article 137, the inherent powers to review its own judgments. This power, exercised ex debito justitiae, gives power to the Supreme Court to recall its own Order, if the same were made by mistake.  However, the law was silent on ‘curative jurisdiction’.

Before the formal recognition of the curative petition in the Rupa Hurra case, the issue of reconsidering a judgment by the Supreme Court arose in A.R. Antulay v. R.S. Nayak & Anr. [1988 (2) SCC 602]. So, in this case, a writ petition was filed under Article 32 of the Constitution to challenge a prior final judgment, alleging a miscarriage of justice due to a violation of principles of natural justice.

The majority of judges (5:2) held that the Supreme Court could, in exceptional circumstances, set aside its own judgment to correct grave errors or violations of fundamental rights, using its inherent powers, including those under Article 32 or Article 136 of the Constitution.

Do you know, this broad interpretation raised concerns about the finality of judgments, leading to doubts in subsequent cases. These doubts prompted a reference to a larger Bench, which was addressed in the Rupa Hurra case. In Rupa Hurra, the Supreme Court clarified that Article 32 cannot be used to challenge final judgments and introduced the curative petition as a limited remedy to rectify gross miscarriages of justice or violations of natural justice after exhausting review under Article 137.

Now, let us look at the landmark case to understand why the Supreme Court invoked its inherent and extraordinary powers.

What is the landmark case of Rupa Ashok Hurra v/s. Ashok Hurra?

So by now, you know that in the landmark case of Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388], the Supreme Court created a new, extraordinary remedy, the curative petition.

This case not only revolved around matrimonial discord but also led to a significant evolution in India’s judicial process.

Let us see the facts of the case.

This goes as Rupa Hurra and her husband filed for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The wife during the cooling off period withdrew her consent, citing that there is some possibility of reconciliation, which the husband contested. Subsequently, the trial court dismissed the divorce application due to lack of mutual consent.

The husband, being aggrieved, appealed to the High Court. A Bench of single-judge allowed his appeal, favouring the grant of divorce. The wife filed a letters patent appeal in which the division bench of the High Court reversed the decision and held that the wife was entitled to withdraw her consent before the final divorce decree was passed, as mutual consent must persist until the decree is passed.

The husband then approached the Supreme Court, challenging the judgement passed by the division Bench. The Supreme Court dismissed his appeal, affirming that Article 32 of the Indian Constitution cannot be invoked to question a final High Court judgment, as the remedy of judicial review was exhausted.

Recognising a potential miscarriage of justice, the Supreme Court introduced the concept of a curative petition as an extraordinary remedy in exceptional cases to rectify grave errors or violations of natural justice after all appeals are exhausted.

In this rare case, the Supreme Court allowed a curative petition to reconsider the final judgment to prevent injustice. After re-examination, the Court, exercising its powers under Article 142 (to do complete justice), granted the divorce, dissolving the marriage. The husband was directed to pay a lump sum amount of Rs 10 lakhs as permanent alimony to the wife for her maintenance.

This judgement shaped the contours of curative jurisdiction to do complete justice.

Moving on, let us understand the legal provisions that govern curative petition.

What are the legal provisions governing curative petition?

The curative petition is not codified in any statute but is based on the inherent powers of the Supreme Court under Article 142 of the Constitution of India, which grants the Supreme Court, in exercise of its jurisdiction, the authority to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
It is governed by the principles laid down in Rupa Ashok Hurra v. Ashok Hurra [(2002) 4 SCC 388] and the general procedural framework of the Supreme Court which is governed by Order XLVIII of the Supreme Court Rules, 2013.

But on what grounds can a person file a curative petition? Let’s find out.

What are the grounds for filing a curative petition?

Rule 1 of Order XLVIII of the Supreme Court Rules, 2013  prescribes that curative petitions are to be governed by the judgment of the Supreme 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.

Therefore, as per Rupa Hurrah’s case, the grounds to file a curative petition are:

1. Violation of the principle of natural justice

For instance, if the petitioner was not given a fair hearing or was not served with the notice of the proceedings, then the petitioner can file a curative petition on the grounds of violation of the principle of natural justice before the Supreme Court.

2. Bias of a judge 

For example, if it is found out that the judge who passed the order had a conflict of interest or personal bias with either the subject matter of dispute or with any of the parties, then it can be a valid ground to file a curative petition.

3. Abuse of the process of the court

If the judgment was obtained by fraud, misrepresentation, or suppression of facts, or if the process of the Court was abused in any way, a curative petition can be filed in that case.

The above list of grounds for filing a curative petition is not exhaustive.

In 2010, the Union Government had filed a curative petition seeking additional compensation for the victims of the Bhopal Gas Tragedy. In 2023, a 5-Judge Bench led by Justice S.K. Kaul rejected the Petition. The Bench narrowed the scope of the curative jurisdiction and emphasised that the previously decided compensation was adequate. The Bench held that a curative petition can be entertained when there is a ‘gross miscarriage of justice’, fraud or suppression of material facts

Now that we have learnt about the grounds for filing a curative petition, we will understand the procedure to be followed in such petitions.

Starting with who hears a curative petition.

Who hears a curative petition?

As per Rule 4 (1) of Order XLVIII of the Supreme Court Rules, 2013, the curative petition is first circulated to a bench of the three senior most judges and the judges who passed the judgment complained of, if available.

But what if the judges who passed the original judgment are the senior most judges?

In that case, the second most senior judges shall be considered, therefore maintaining the quorum as laid down in the aforesaid rule.

Moving on to the next question, how is it decided?

How is the curative petition decided?

As per Rule 4 (2) of Order XLVIII of the Supreme Court Rules, 2013, a curative petition is disposed of by circulation without any oral arguments unless otherwise ordered by the Court. However, the petitioner may supplement his petition with additional written arguments.

If the bench before which a curative petition is circulated concludes by a majority that the matter needs a hearing, then it is listed before the same bench, if available.

But what exactly does one need to include in the curative petition itself?

What are the components of a curative petition?

You should know what forms a part of a curative petition. Well, a curative petition consists of the following components:

• Synopsis
• List of Dates
• Body of the Petition
  • The first paragraph of the body should set out that the curative petition is being filed under Article 142 of the Constitution of India against the impugned final judgment and order dated (insert date) passed in (insert title of Review Petition) review petition in ________[mention the details of the main matter against which Review was filed ]
  • Facts of the case leading to the filing of the curative petition
  • Grounds
  • A declaration that no new grounds have been taken in the curative petition that were not raised in the review petition.
• Prayer;
• Applications, if any (For oral hearing, permission to file extended Synopsis/List of Dates, etc).

Now, that we know the components of a curative petition, let us learn how to draft a curative petition.

How to draft a curative petition?

A few years ago, I had an opportunity to work on a curative petition. I will take that case and demonstrate how to draft a curative petition. I will change the names of the parties and also the dates to maintain confidentiality.

Explanation of the clauses have been given in red.

The brief facts and issues involved in the matter are illustrated hereinbelow:

Brief facts: The Petitioner, Citizens’ Welfare Association, Bhopal, conducted a survey in 2011, revealing that Bharat Gas Ltd. under-weighed BharatGas cylinders, causing an average consumer loss of ₹50/- per refill. The Petitioner filed Original Petition No. 345/2011 before the National Consumer Disputes Redressal Commission (NCDRC) under Section 21 of the Consumer Protection Act, 1986, seeking compensation and systemic reforms.

On 16.08.2017, the NCDRC directed the Ministry of Petroleum and Consumer Affairs to ensure distributors provide weighing scales and, as a consequence thereof, declined the prayer for compensation. The Petitioner’s review application (M.A. No. 456/2017) was dismissed on 29.07.2020. The Petitioner appealed to the Supreme Court in Civil Appeal No. 5432/2020, which was disposed of as infructuous on 05.12.2022, citing the steps taken by the respondents. The Review Petition (C) No. 789/2023 was dismissed on 12.02.2023. 

Issue: Whether the Supreme Court’s erroneous treatment of a statutory appeal under Section 23 of the Consumer Protection Act, 1986, as a Special Leave Petition, and its failure to adjudicate the Petitioner’s prayer for compensation due to under-weighing of BharatGas cylinders, despite amendments to the Consumer Protection Act, 1986, effective since 15.03.2003, constitute a gross miscarriage of justice warranting intervention under the principles laid down in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

We will begin with drafting the synopsis.

SYNOPSIS 

Explanation: A synopsis is a brief summary of the matter and must include the order being challenged, the nature of the dispute, the main grounds of the challenge, and the reliefs sought. It should highlight the important points that form the foundation of the case, ensuring the court understands the core issues at the outset. 

The Petitioner, Citizens’ Welfare Association, Bhopal, respectfully invokes the curative jurisdiction of this Hon’ble Court against the order dated 12.02.2023, whereby Review Petition (C) No. 789/2023 was dismissed, thereby upholding the judgment dated 05.12.2022 in Civil Appeal No. 5432/2020.

The appeal, arising from the National Consumer Disputes Redressal Commission’s (NCDRC) order dated 16.08.2017, addressed the Petitioner’s grievance regarding under-weighing of BharatGas cylinders by Bharat Gas Ltd., causing an average consumer loss of ₹50/- per refill, as established by a survey.

The appeal was erroneously disposed of as infructuous, treating it as a Special Leave Petition rather than a statutory appeal under Section 23 of the Consumer Protection Act, 1986, and failed to adjudicate the prayer for compensation and systemic reforms as sought in clause (d) of the Section 21 application.

The dismissal of the Review Petition ignored the amendments to the Consumer Protection Act, 1986, which have been effective since 15.03.2003, resulting in a gross miscarriage of justice. The curative petition is warranted under Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388, to restore the appeal for de novo hearing and ensure consumer rights are upheld.

Moving on the next part which is the list of dates.

LIST OF DATES AND EVENTS

Explanation: The list of dates and events is a chronological sequence of significant events relevant to the case. It must be detailed to enable the court to understand the entire matter at the threshold.

Date	Event
2011	The Petitioner, Citizens’ Welfare Association, Bhopal, conducted a survey that revealed the underweighing of BharatGas cylinders by Bharat Gas Ltd., resulting in an average consumer loss of ₹50 per refill, which prompted action for national-level consumer grievance redressal.
2011	Petitioner filed Original Petition No. 345/2011 before the NCDRC under Section 21 of the Consumer Protection Act, 1986, seeking compensation and systemic reforms, impleading Bharat Gas Ltd., Union of India, Government of Madhya Pradesh, and M/s Shree Distributors Pvt. Ltd.
16.08.2017	NCDRC passed an order in Original Petition No. 345/2011, directing the Ministry of Petroleum and Ministry of Consumer Affairs to ensure distributors provide weighing scales for LPG cylinders and publicise this in vernacular languages, English, and Hindi, granting four years for compliance. The prayer for compensation (clause (d)) was deemed declined.
2017	Petitioner filed Miscellaneous Application No. 456/2017 before NCDRC, seeking review of the order dated 16.08.2017, particularly regarding the declining of the prayer for compensation.
29.07.2020	NCDRC dismissed M.A. No. 456/2017, observing that the prayer in clause (d) was not maintainable under Section 22(2) of the Consumer Protection Act, 1986, leaving it open for the Petitioner to seek redressal as permissible under law.
2020	Petitioner filed Civil Appeal No. 5432/2020 before this Hon’ble Court under Section 23 of the Consumer Protection Act, 1986, challenging the NCDRC’s orders dated 16.08.2017 and 29.07.2020, seeking adjudication of the compensation prayer and systemic reforms.
August 2022	Ms. Priya Singh filed an affidavit before this Hon’ble Court disclosing the steps taken by Gas Companies to modernise LPG bottling plants and issue instructions to distributors..
05.12.2022	This Hon’ble Court disposed of Civil Appeal No. 5432/2020 as infructuous, citing steps taken by the Government and Gas Companies, erroneously treating the matter as arising from a Special Leave Petition and failing to adjudicate the prayer in clause (d) of the Section 21 application.
12.02.2023	Petitioner filed Review Petition (C) No. 789/2023, highlighting errors in the judgment dated 05.12.2022, including non-consideration of amendments to the Consumer Protection Act, 1986, and the unaddressed prayer for compensation. The same day, this Hon’ble Court granted permission to file the Review Petition but dismissed it.
18.12.2023	Hence, the present Curative Petition seeks to cure the miscarriage of justice and restore the appeal for a de novo hearing.

Explanation: This section of the petition must mention the court that is going to hear the case and the nature of the jurisdiction of the Court under which it will entertain the petition, along with the case number, names and description of the parties.

IN THE SUPREME COURT OF INDIA 

INHERENT JURISDICTION 

[ORDER XLVIII OF SUPREME COURT RULES,2013]

CURATIVE PETITION NO. ___ OF 2023 

IN REVIEW PETITION (CIVIL) NO. 789 OF 2023 

IN 

CIVIL APPEAL NO. 5432 OF 2020 

[ARISING OUT OF THE ORDER DATED 12.02.2023 DISMISSING R.P. (C.) NO. 789/2023, WHEREIN THE JUDGMENT DATED 05.12.2022 ALLOWING C.A. NO. 5432/2020 WAS IMPUGNED]

IN THE MATTER OF: 

Position of parties

	In the Civil Appeal	In the Review Petition	In the Curative Petition
[Here insert the name/names of the Petitioners]Citizens’ Welfare Association, BhopalOffice address:___	[what was their position in the civil appeal] Appellant	[what was their position in the review petition]Petitioner	Petitioner
VERSUS
[Here insert the name/names of Respondents]	what was their position in the civil appeal]	what was their position in the review petition]	Respondent No.1

CURATIVE PETITION UNDER ARTICLE 142 OF THE CONSTITUTION OF INDIA READ WITH RULE XLVIII OF THE SUPREME COURT RULES, 2013

To

 HE HON’BLE CHIEF JUSTICE OF INDIA 

AND HIS COMPANION JUSTICES OF 

THE HON’BLE SUPREME COURT OF INDIA 

THE HUMBLE CURATIVE PETITION OF THE PETITIONERS HEREIN MOST

You start the curation petition by explaining why you are filing it. This is your introduction paragraph stating the judgement that is being challenged in the petition.

1. That the Petitioner is constrained to invoke the curative jurisdiction of this Hon’ble Court, being aggrieved by the fact that the judgment dated 05.12.2022 in C.A. No. 5432/2020 was not interfered with in Review Petition (C.) No. 789/2023, dated 12.02.2023, which was summarily dismissed by circulation.

This is a mandatory clause wherein you mention that the grounds mentioned in this petition are the same in the review petition, and the grounds fall within the parameters of Rupa Hurra’s case.

2. That the grounds set out in this Curative Petition are the same as were taken in the aforesaid Review Petition and the grounds fall within the parameters prescribed in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

You start with mentioning the basis of the Hon’ble Court to pass the judgement dismissing the Civil Appeal.

3. That this Hon’ble Court disposed of C.A. No. 5432/2020 as infructuous by its judgment dated 05.12.2022, on the basis that steps taken by the Union of India and the Gas Companies addressed the grievances raised by the Petitioner. The relevant passage from the judgment is excerpted below:

 “…During the pendency of the special leave petition out of which this appeal arises… the steps taken by the various Gas Companies to modernise LPG bottling plants and instructions issued by them to the distributors and the directions issued to the dealers so as to ensure the carrying of weighing machines by the deliveryman at the time of the delivery of cylinders… no further direction was required.”

4. That this judgment erroneously treated the matter as arising from a Special Leave Petition, whereas it was a statutory appeal under Section 23 of the Consumer Protection Act, 1986, which entails a wider scope of adjudication. The disposal of the appeal as infructuous failed to address the Petitioner’s prayer for adjudication of the grievance regarding under-weighing of BharatGas cylinders, as sought in clause (d) of the application under Section 21 of the Consumer Protection Act, 1986, seeking compensation for consumer losses.

After the basis of the judgement is mentioned, you must show your bonafide by demonstrating the steps taken by the petitioner in the matter.

5. That the Petitioner bona fide pursued the consumers’ grievance based on a survey conducted by its volunteers, which revealed an average loss of ₹50/- per refill of BharatGas cylinders due to under-weighing, as stated in Para 3.5 of the application before the NCDRC. The Petitioner sought compensation and systemic reforms, which were not adequately addressed by the steps mentioned in the impugned judgment.

You demonstrate that the petitioner filed a review and the grounds in support of reviewing the judgement.

6. That the Petitioner sought review of the judgment dated 05.12.2022 by filing R.P. (C.) No. 789/2023, inviting attention to the error apparent whereby the appeal was disposed of without adjudicating the prayer in clause (d) of the application under Section 21. The Petitioner highlighted that the affidavit filed by Ms. Priya Singh in August 2022 relied on outdated material already considered by the NCDRC, and the steps taken by the Gas Companies were insufficient to address the grievance.

7. That in the Review Petition, the Petitioner contended that the amendments to the Consumer Protection Act, 1986, effective since 15.03.2003, were not considered, and the failure to adjudicate the impact of these amendments resulted in a miscarriage of justice. The Petitioner further submitted that the dismissal of the appeal as infructuous violated principles of natural justice by denying a full hearing on the merits.

Thereafter, you demonstrate that the review petition was dismissed and the same was dismissed and also show the consequences of the dismissal.

8. That the Review Petition was dismissed, which warrants indulgence of this Hon’ble Court under the curative jurisdiction as the Petitioner has been unable to secure adjudication of the consumers’ grievance regarding under-weighing of BharatGas cylinders, despite persistent efforts before multiple fora.

Point out what has not been considered in the review petition.

9. That the Petitioner had brought the following contention to the notice of the Hon’ble Court in the Review Petition, however, the Hon’ble Court has not considered the same: 

“…The adjudication of the grievances with reference to clause (d) at page 79 was all the more necessary because the Citizens’ Welfare Association, Bhopal had sought the review of the order dated 16.08.2017 from the National Commission but the Commission had rejected the review, i.e., M.A. No. 456/2017 on 29.07.2020 by observing with regard to the prayer made in clause (d) which was deemed to have been declined and not maintainable under section 22(2) of the Act…”

You can refer to the judgements in order to warrant the exercise of discretion in the present petition.

10. That in the case of Zakarius Lakra v. Union of India,[(2005) 3 SCC 161], this Hon’ble Court allowed a curative petition since the grounds raised in the review petition had not been considered. Similarly, in National Commission for Women v. Bhaskar Lal Sharma, [(2014) 4 SCC 252], this Hon’ble Court restored an appeal for de novo hearing due to non-consideration of critical grounds. Further, in S. Nagaraj v. State of Karnataka, [1993 Supp (4) SCC 595], this Hon’ble Court revised its orders to correct serious errors with significant consequences.

You have to mandatorily state that you have not filed any other petition against the order.

11. That the Petitioner states that it has not filed any other Curative Petition in this Hon’ble Court against the order dated 12.02.2023 passed by this Hon’ble Court in Review Petition (C) No. 789/2023.

PRAYER

Finally, you mention the prayer clause requesting the curative petition to be allowed, followed by the setting aside of the judgement. In this case, you also ask for a de novo hearing. Here is how the prayer clause shall look in the present case

 In the facts, circumstances, and grounds set out hereinabove, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to:

 (i) Allow the present Curative Petition and set aside the judgment dated 05.12.2022 passed in C.A. No. 5432/2020 and the order dated 12.02.2023 dismissing Review Petition (C.) No. 789/2023; 

(ii) Restore the appeal for de novo hearing on the merits of the Petitioner’s grievances as raised in the application under Section 21 of the Consumer Protection Act, 1986; 

(iii) Grant any other relief as this Hon’ble Court may deem fit and proper in the facts and circumstances of the instant case.

FOR THIS ACT OF KINDNESS, THE CURATIVE PETITIONER AS IN DUTY BOUND, SHALL EVER PRAY.

DRAWN BY:

FILED BY:

ADVOCATE FOR THE PETITIONER

DRAWN ON: 

FILED ON: 

This leads to a related question about what kind of specific averment needs to be made in a curative petition.

Is there any specific averment to be made in a curative petition?

As per Rule 2 (1) of Order XLVIII of the Supreme Court Rules, 2013, in a curative petition, the petitioner has to expressly state that the grounds mentioned in it have been taken in the review petition and that it was dismissed by circulation.

You must also mention in the petition that there are no other petition filed by the petitioner.

Besides these averments, there are also certain supporting documents that need to be submitted. Let us look at what they are.

What are the mandatory documents to be filed in support of a curative petition?

A curative petition has to be accompanied by the following documents:

• A certificate of the senior advocate that the petition meets the requirements delineated in ‘Rupa Ashok Hurrah v. Ashok Hurrah and Ors.[Rule 2 (2) of Order XLVIII of the Supreme Court Rules, 2013]
• A certified or authenticated copy of the judgment or order complained of;
• A certificate of the Advocate-on-Record to the effect that it is the first curative petition in the impugned matter.[Rule 2 (3) of Order XLVIII of the Supreme Court Rules, 2013]

Now, you might be wondering, is there a deadline to file this petition?

What is the limitation period to file a curative petition?

As per Rule 3 of Order XLVIII of the Supreme Court Rules, 2013, the curative petition has to be filed within a reasonable time from the date of judgment or order passed in the review petition.

And what happens if someone tries to misuse this process?

Can costs be imposed in curative petitions?

As per Rule 4(4) of Order XLVIII of the 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.

But can the registry stop a curative petition before it even reaches the judges?

Can the registry dismiss a curative petition?

In an application challenging the order of the Supreme Court Registrar dated 31-10-2022 refusing to register a set of ‘curative petitions,’ the Division Bench of Aniruddha Bose and Sudhanshu Dhulia, JJ., in the case of Brahmaputra Concrete Pipe Industries and Ors. v Assam State Electricity Board and Ors. [(2024) 9 SCC 637] clarified that the Registry was not vested with the power to decide whether a review petition (that was already heard in open court) should be considered under a curative petition. The Court said that this decision must be taken by the three senior-most judges of the Supreme Court, along with the judges who passed the original judgment. 

Let’s now examine a few recent cases of curative petitions

What are the instances of curative petitions?

Let us have a look at the cases of curative petition. A well-known example of a dismissed curative petition is the one filed in the year 2012; it is the case that took the entire nation by storm, i.e. the Nirbhaya gangrape and murder case by two of the four death row convicts. The hearings were in-chamber. The five judges were unanimous in stating that the two disqualified petitioners had no substance in the curative petitions they filed.

While dismissing the petition, the bench held that “the applications for stay of execution of death sentence are also rejected. We have gone through the curative petition and the relevant documents. In our opinion, no case is made out within the parameters indicated in the decision of this Court in Rupa Ashok Hurra vs. Ashok Hurra & Another. Hence, the Curative Petitions are dismissed”.

Let us look at a case where the Supreme Court allowed curative petitions.

In the case of Navneet Kaur v. State of NCT of Delhi [AIR 2014 SC 1935], the curative petition was filed by the Petitioner, the wife of Devender Pal Singh against the dismissal of review petition wherein she prayed for setting aside the death sentence imposed upon him on the grounds of supervening circumstance of delay of 8 years in disposal of mercy petition. The petition was allowed by the Supreme Court and the death sentence was commuted to life imprisonment on the ground of an inordinate delay of 8 years in the disposal of mercy petition and on the ground of insanity.

Generally, the curative petitions have been entertained in matters of significant public and, or constitutional interest to prevent gross miscarriage of justice. 

However, recently, the Supreme Court resorted to this extraordinary remedy in cases of commercial interest.

Yes, you are right, I am talking about the case of Delhi Metro Rail Corporation Limited v Delhi Airport Metro Express Private Limited [(2024) 6 SCC 357] (in short known as DMRC v DAMEPL case), which is a pivotal illustration of the evolving scope of curative jurisdiction in commercial matters.

The facts of the case were that a dispute arose out of a concession agreement between DMRC and DAMEPL for the Airport Metro Express Line in Delhi. DAMEPL terminated the agreement on the grounds of safety issues and sought compensation. The matter went to arbitration, wherein the arbitral tribunal awarded approximately Rs.2,782 crores (plus interest), which, with accrued interest, escalated to around Rs.7,600 crores by the time of the curative petition.

Assailing the award, DMRC filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 before the Delhi High Court. 

The Single Judge of the High Court dismissed the petition. This gave rise to an appeal under Section 37 before a Division Bench of the High Court. The appeal was partly allowed. 

Against the decision of the Division Bench of the High Court, DAMEPL moved a special leave petition under Article 136 of the Constitution. A two-Judge Bench of the Supreme Court allowed the appeal, and restored the award.

The review petition assailing this decision was dismissed, prompting a curative petition, which was allowed on 10.04.2024. 

A three-judge bench, led by Chief Justice D.Y. Chandrachud, allowed the curative petition, and held that they erred in interfering with the decision of the Division Bench of the High Court. The judgment of the Division Bench in the appeal under Section 37 of the Arbitration and Conciliation Act, 1996 was based on a correct application of the test under Section 34 of the Act.
The judgment of the Division Bench provided more than adequate reasons to come to the conclusion that the arbitral award suffered from perversity and patent illegality. There was no valid basis for the Supreme Court to interfere under Article 136 of the Constitution. The interference by Court has resulted in restoring a patently illegal award. This has caused a grave miscarriage of justice.

However, the Supreme Court noted that the exercise of its curative jurisdiction should not be adopted as a matter of course and the curative jurisdiction should not be used to open the floodgates and create a fourth or fifth stage of court intervention in an arbitral award, under the Court’s review jurisdiction or curative jurisdiction, respectively.

Conclusion

So, what have we learnt? 

By reading this article, you now know that curative petition is the last legal remedy available, but it is not an alternative to appeals and review petition. It is a vital remedy available against miscarriage of justice. However, it is essential to note that the threshold for the admission of a curative petition is exceptionally high and is used in rare circumstances. This unique legal remedy allows individuals or entities to seek relief even after exhausting all other avenues. 

For those of you dreaming of practicing in the Supreme Court or prepping for the Advocate-on-Record exam, understanding curative petition is not optional; it is your armor.