M/S BRAHMAPUTRA CONCRETE PIPE INDUSTRIES ETC. ETC. [APPELLANT(S)] Vs. THE ASSAM STATE ELECTRICITY BOARD AND OTHERS [RESPONDENT(S)]
(CIVIL APPEAL NO.8450 OF 2016)
(2JB, ANIRUDDHA BOSE and SUDHANSHU DHULIA JJ., delivered by ANIRUDDHA BOSE, J.)
Facts: The appellants before the court are firms who are aggrieved by an order of a Registrar (JIV) of this Court passed on 31.10.2022 declining registration of a set of petitions labelled as “curative petitions.” This was a common order passed in six similar petitions (including the one instituted by the appellant in the Miscellaneous Application No. 2045 of 2022, instituted by Brahmaputra Concrete Pipe Industries) founded on similar factual and legal grounds. These appeals have been filed under Rule 5 of Order XV of the Supreme Court Rules, 2013.
Issue: Whether Registry can be vested with power to decide whether a review petition, after being dismissed in open Court hearing, merited relook through the curative jurisdiction?
Arguments on behalf of counsel for appellant:
The main point urged on behalf of the appellant is that the Registrar has no power or jurisdiction to decline registration of a curative petition and it should be decided by a Bench of this Court. There appears to be no decision directly on this point and the court requested Mr. Raju Ramachandran, learned Senior Advocate to assist an Amicus Curiae in this matter, a request he graciously accepted.
Arguments on behalf of counsel for respondent:
Mr. Vijay Hansaria, learned Senior Counsel appearing on behalf of the respondent has drawn the court’s attention to the Order XLVIII of the 2013 Rules to point out that since this was a case where review petition was dismissed in open Court hearing after oral submissions were advanced, it does not satisfy the mandate of the five Judge Bench laid down in the case of Rupa Ashok Hurra (supra). Mr. Hansaria has also taken the point of delay in filing the curative petition. The review petition was dismissed on 18.12.2019 and the curative petition was filed on 31.10.2020, after a lapse of ten months.
Held: The court disposed off the present appeal and held that, “We are of the view that a curative petition arising from an order dismissing a review petition upon hearing in open Court must contain a plea or prayer seeking excuse from compliance of making averment as contained in Order XLVIII Rule 2(1) of the 2013 Rules. The proper course for the Registry on receiving such a petition with a prayer to be excused from the above requirement would be to obtain instructions from the Judge in chambers and thereafter communicate such instructions to the parties.”
